Florida/Georgia Personal Injury & Workers Compensation

...Marin was entered in the amount of $357,750. On appeal, the issue was whether the liability for noneconomic damages should be apportioned to the Fabres on the basis of the percentage of fault attributed to them. Hence, the district court of appeal was called upon to interpret section 768.81(3), Florida Statutes (Supp....

...Rather, the legislature intended only to apportion liability among those tortfeasors who were defendants in the lawsuit. Hence, the court affirmed the full amount of the judgment. In Messmer, the Fifth District Court of Appeal reached the opposite conclusion in applying section 768.81(3) to facts which for purposes of this appeal were the same as those in the instant case. The Messmer court adopted the rationale of the trial court's order, which read in pertinent part: "Section 768.81(3) provides that the court shall enter judgment against `each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.' The court is of the opinion that the lang...

...While recognizing the logic in Disney's position that it should not be responsible for 86% of the damages, we declined to judicially eliminate joint and several liability on the premise that this was a public policy matter which would be best decided by the legislature. The legislature acted upon the subject by enacting section 768.81(3)....

...rtioned among all participants to the accident. The abolition of joint and several liability has been advocated for many years because the doctrine has been perceived as unfairly requiring a defendant to pay more than his or her percentage of fault. Section 768.81 was enacted as part of the Tort Reform and Insurance Act of 1986, chapter 86-160, Laws of Florida, in which the legislature found "that there is in Florida a financial crisis in the liability insurance industry" and "that the current t...

...1990). In passing on the constitutionality of the act, we observed that the right of access to courts "does not include the right to recover for injuries beyond those caused by the particular defendant." Smith, 507 So.2d at 1091. We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident....

...It would be incongruous that the legislature would have intended that the Fabres' responsibility be 100% in situations where Mrs. Marin's vehicle was operated by her husband and only 50% in situations where by chance she was a passenger in a vehicle operated by a friend. The court below erroneously interpreted section 768.81 by concluding that the legislature would not have intended to preclude a fault-free plaintiff from recovering the total of her damages....

...g joint and several liability was that in the event one of the defendants is insolvent the plaintiff should be able to collect the entire amount of damages from a solvent defendant. By eliminating joint and several liability through the enactment of section 768.81(3), the legislature decided that for purposes of noneconomic damages a plaintiff should take each defendant as he or she finds them....

...We believe that any inconsistencies which may occur in given factual scenarios can be harmonized. [3] However, in the event they cannot, the legislature has already resolved the issue. Section 768.71(3), Florida Statutes (Supp. 1988) provides that if the provisions of sections 768.71-768.81 conflict with any other provisions of the Florida Statutes, such other provisions shall prevail....

...o judge a forest by observing just one tree. It cannot, and more important should not, be done."). Accordingly, Mrs. Marin's judgment should be reduced by 50% of her noneconomic damages. There should be no reduction in economic damages because under section 768.81(3), joint and several liability continues to apply when a defendant's negligence equals or exceeds that of the plaintiff....

...m and a negligent party, the innocent victim should be made whole by receiving damages from a negligent party. Because the language of the statute does not compel the majority's conclusion in this case, I dissent. The Legislature undeniably intended section 768.81(3), Florida Statutes (Supp....

...arties in the suit. However, nowhere in the statutory language or in legislative history has the Legislature made clear its intent to apply the statute to nonparties in the unusual situation presented by these facts. To the contrary, the language in section 768.81(3) is susceptible of at least two equally plausible interpretations of legislative intent....

...s. [2] If the accident had happened today, Mrs. Marin could sue her husband because the doctrine of interspousal immunity has now been abrogated. Waite v. Waite, 618 So.2d 1360 (Fla. 1993). [3] Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages....

...Thermoset at risk of receiving inadequate relief. Florida is not a joint-and-several liability state. Under Florida law, a defendant in a product liability action (like GAF) is liable only for the amount of damages proportional to its percentage of fault. See Fla. Stat. § 768.81(3)....

...ineral spirits out of the reach of their son. Their actions must also be judged in accordance with the rules of comparative negligence and, thus, cannot serve as a basis for dismissing the complaint for failure to state a claim. 9 See Fla.Stat. Ann. § 768.81(2); see also Bean, 532 So.2d at 686 (the issue of whether a mother’s conduct in placing an open plastic soda bottle containing mineral spirits within easy reach of her child was the sole proximate cause of the child’s death was for the jury to decide)....

...ly denied based on fraudulent misrepresentation. Second, FIGA argued that Jones had failed to timely file her claim, and that the claim was therefore barred. FIGA also asserted that damages against the Association were only available as permitted by section 768.81 of the Florida Statutes (1995) (the comparative negligence provision), as limited by section 631.57....

...We review Tallahassee Memorial Regional Medical Center, Inc. v. Wells, 634 So.2d 655 (Fla. 1st DCA 1994), in which the district court of appeal certified the following questions to be of great public importance: (A) IS A NON-SETTLING DEFENDANT IN A CASE TRIED UNDER SECTION 768.81(3) ENTITLED TO SETOFF OR REDUCTION OF HIS APPORTIONED SHARE OF THE DAMAGES, AS ASSESSED BY THE JURY, UNDER THE PROVISIONS OF SECTIONS 768.041(2), 46.015(2) OR 768.31(5)(a), BASED UPON SUMS PAID BY SETTLING DEFENDANTS IN EXCESS OF THEIR...

...In reversing the judgment, the district court of appeal found that footnote 3 of this Court's opinion in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), was controlling. Id. at 658-59. Recognizing some merit in Wells' arguments, however, the court chose to certify the foregoing questions. In Fabre, this Court interpreted section 768.81(3), Florida Statutes (Supp....

...In order to do this, it is necessary to determine the percentage of fault of all entities who contributed to the accident regardless of whether they are joined as defendants. Footnote 3 of our opinion in Fabre states: Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages....

...easor's liability. She asserts that the setoff statutes are only applicable where there is common liability, as in the case of economic damages. Thus, where liability is determined by the jury as a percentage of fault, the comparative fault statute, section 768.81(3), would apply and there would be no setoff. On the other hand, TMRMC argues that the purpose of the setoff provisions is to prevent duplicate or overlapping compensation for identical damages. The abolition of joint and several liability by section 768.81(3), TMRMC argues, did not alter this long-established prohibition against double recovery....

...At first glance, it would appear that the rationale of footnote 3 would foreclose Wells' claim. In fairness, however, the arguments advanced in this appeal were not presented to, nor considered by, this Court in Fabre. The illustration in footnote 3 was intended to demonstrate that our interpretation of section 768.81(3) would not lead to a double reduction in damages....

...Canyon Highway District No. 4, 122 Idaho 73, 831 P.2d 541 (1992), overruled on other grounds, Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994). We are persuaded by the logic of what is clearly the majority rule. Moreover, we are convinced that the language of section 768.81(3) and the setoff statutes lead to this result. Section 768.81(3) provides: APPORTIONMENT OF DAMAGES....

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. § 768.81(3), Fla. Stat. (1989). Under section 768.81(3), each defendant is solely responsible for his or her share of noneconomic damages. The setoff provisions, which were enacted *253 before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages....

...at the time of rendering judgment. § 46.015, Fla. Stat. (1989) (emphasis added). Section 46.015 clearly applies to "a person who is or may be jointly and severally liable with other persons for a claim." Id. (emphasis added). A defendant sued under section 768.81 may not be jointly liable with other defendants for noneconomic damages....

...WELLS, J., concurs specially with an opinion, in which KOGAN, J., concurs. ANSTEAD, J., concurs specially with an opinion. *255 WELLS, Justice, concurring specially. I concur with the majority's reconciliation of sections 46.015(2), 768.31(5), and 768.81(3), Florida Statutes (1991), in this case in which the parties stipulated that the settling defendants would remain on the verdict form although Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), had not yet been decided. It is my view that the majority's interpretation of these statutes is correct in cases in which the jury is instructed to apportion fault in accordance with Fabre's interpretation of section 768.81(3)....

...While I concur in the majority's opinion because it makes very good sense, I have some concern that the legislature has not acted to express or clarify its intent as to the continuing application of the provisions of sections 46.015(2), 768.31(5)(a), and 768.041(2), Florida Statutes (1991), in view of the enactment of section 768.81(3), Florida Statutes (1989). Prior to the adoption of section 768.81(3), a tortfeasor might have had to shoulder more than its proportionate share of fault in responding to a claim....

...Hence, the remaining tortfeasor-defendant, in effect, receives a "contribution" from the settling tortfeasor in the form of a reduction in the judgment for damages the remaining tortfeasor-defendant may face. This is how the legislative contribution scheme worked before the enactment of section 768.81(3). With the enactment of section 768.81(3), the need for, and the role of, the contribution scheme set out above has been substantially reduced. Under section 768.81(3), a judgment is to be entered against a particular tortfeasor-defendant only "on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." Since this tortfeasor-defendant now...

...tfeasors, or by a reduction in the judgment entered against him in the amount of any settlements made by the claimant with other tortfeasors. Since the "problem" of a tortfeasor paying more than his fair share has been eliminated by the enactment of section 768.81(3), the "solution" to the problem by the scheme of contribution and setoff is no longer needed....

...The underlying purpose of the contribution scheme and sections 46.015(2), 768.31(5)(a), and 768.041(2) is simply no longer served in such a case. This is the essence of our decision today. However, it is important to note that the legislature left the contribution scheme described above largely intact when it adopted section 768.81(3)....

...omic and economic damages setoffs. In our analysis, we address each type of setoff separately. We begin our discussion by referencing the relevant statutory scheme established by the three setoff statutes and the separate apportionment provisions of section 768.81, Florida Statutes (1997)....

...Finally, we apply this distinction to the case before us. *314 A. APPLICABLE LAW The standard of review for the pure questions of law before us is de novo. See Armstrong v. Harris, 773 So.2d 7 (Fla. 2000). Therefore, no deference is given to the judgment of the lower courts. 1. Applicability of Section 768.81, Florida Statutes (1997) Florida law regarding setoffs is found in sections 46.015(2), [6] 768.041(2), [7] and 768.31(5), [8] Florida Statutes (1997)....

...Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla.1995). After these statutes were first enacted, the Legislature enacted section 768.81, Florida Statutes (1997). Section 768.81 eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages....

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. § 768.81(3) Fla. Stat. (1997). [9] Section 768.81(4) expressly provides that the statute applies to negligence cases, including professional malpractice cases. 2. Noneconomic Damages In Wells, the Court considered the interrelationship between the three setoff statutes and the apportionment provisions of section 768.81....

...TMRMC requested a setoff, arguing that the judgment should be reduced by the total amount paid by the settling defendants. Id. This Court concluded that the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable pursuant to section 768.81(3), but held that the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability....

...Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996), this Court outlined the procedure for apportioning the fault of a person or entity not joined as a defendant in the suit. Under the facts in Nash, we held that the outlined procedure was a prerequisite for the apportionment of noneconomic damages under section 768.81 and Wells....

...Under these circumstances, we believe that Wells Fargo waived the defense that noneconomic damages should be apportioned to Methodist. Nash, 678 So.2d at 1265. Because the defendant in Nash did not plead the negligence of a nonparty, the Court held that the defendant had waived its right to apportionment under section 768.81 and that it was, therefore, liable for 100% of the plaintiff's noneconomic damages....

...Polk County, 753 So.2d 138 (Fla. 2d DCA 2000): "A defendant seeking to have the jury apportion its fault with that of a nonparty has the burden to plead and prove its entitlement to that benefit." Id. at 142. 3. Economic Damages Unlike noneconomic damages, for which section 768.81 eliminated joint and several liability, the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability....

...A defendant who is "not found liable" could be a defendant whose liability was not even considered by a jury, whereas a defendant may only be "found not liable" after a verdict. This distinction was recognized by the Second District Court of Appeal in D'Angelo. B. APPLICATION OF LAW 1. Applicability of Section 768.81, Florida Statutes D'Angelo argues that section 768.81 only applies to cases where there is more than one defendant at trial or where the defendant elects to proceed under section 768.81 by including the settling defendant(s) on the verdict form. Because D'Angelo was the only defendant at trial and was the only defendant that appeared on the verdict form, [11] he argues that section 768.81 does not apply and that he is entitled to a full setoff against both economic and noneconomic damages. Section 768.81(4)(a), Florida Statutes (1997), states: "This section applies to negligence cases." No language in the statute limits its applicability to cases where more than one defendant appears on the verdict form. If section 768.81 were inapplicable in cases where only the nonsettling defendant appears on the verdict form, the section of the statute eliminating joint and several liability for noneconomic damages would not apply, and the nonsettling defendant woul...

...ury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater.... [9] Section 768.81(3) was amended in 1999; however, the applicable version is that which was in effect when the cause of action arose....

...tempts. The trial court did not err in denying the Board's motion for judgment as a matter of law. IV. 46 In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), the Supreme Court of Florida held that Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), requires fault to be "apportioned among all responsible entities who contribute to an accident even though not all of them have been joined as defendants." 18 Nash v....

...the dangers of touring in certain areas of Miami, especially with a Rent-A-Car bumper sticker, and should have warned the plaintiffs of the danger. Id. 52 Discussing Florida's comparative fault statute, the court held that the unmistakable intent of section 768.81 was to limit a defendant's liability to only his percentage of "fault." The court looked to the dictionary definition of fault, and found nothing to suggest that intentional actors should be excluded from the blameworthy individuals who are supposed to share liability under section 768.81....

...The plaintiff filed suit against Burger King, claiming that the restaurant had negligently failed to protect her, as a business invitee, from the reasonably foreseeable intentional attack of a third party. Id. The trial judge determined that the plaintiff's claim was governed by section 768.81, and consequently requested the jury to apportion fault between Kidd and Burger King....

...ing 20% responsible. Id. 54 On appeal, the Fourth District Court of Appeals reversed. The Fourth District could not reconcile Burger King's duty to protect the plaintiff from foreseeable intentional assaults with Burger King's assertions that, under section 768.81, it was entitled to diminish or defeat its liability for the breach of that duty by transferring liability to the very intentional actor it was charged with protecting the plaintiff from: 55 If the likelihood that a third person may ac...

...While we could make a guess as to which of these approaches is the proper one, we think the more prudent course is to submit the issue to the Florida Supreme Court. Accordingly, we respectfully certify the following question of law to the Supreme Court of Florida: 58 Does Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of "fault" between both negligent and intentional tortfeasors? 59 Our statement of the question is not meant to limit the scope of inquiry by the Supreme Court of Florida: " '[T]he particular phrasi...

...e en route to or from school or is presumed by law to be attending school. Fla. Stat. ch. 232.25 (1989) (amended 1995 & 1996). 17 The School Health Services Act was also in effect at the time of Shawn's death. Fla. Stat. ch. 402.32 (1989) 18 Chapter 768.81 provides: (3) Apportionment of Damages.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.......

...and not the conclusory terms used by the parties. (b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, [or] to any action based upon an intentional tort.... Fla. Stat. Ann. § 768.81 (3), (4) (West 1997 Supp.)....

...D’Amario reconciles principles of comparative fault and proximate causation in enhanced injury cases. Florida follows the doctrine of comparative fault in civil negligence, strict liability, products liability, and breach of warranty cases such as this one. Fla. Stat. § 768.81 (2004)....

Florida's comparative fault statute, Florida Statute § 768.81. Because the jury had returned a single damages

...As noted in the above-cited annotation, the rationale for this majority view "rests on the notion that there is no reason to differentiate negligent misrepresentations from any other forms of negligence." 22 A.L.R. 5th at 471. This view is consistent with Florida law as set forth in section 768.81, Florida Statutes (1995), which provides that comparative fault principles shall apply in negligence cases. That section provides: 768.81....

...hich is the very type of loss at issue in this action. By this opinion, we adopt the Restatement (Second) of Torts' position on negligent misrepresentation contained in section 552. Further, we find that the comparative fault provisions contained in section 768.81 apply to actions involving negligent misrepresentation....

...The court determined that the medical evidence indicated that everyone treating Bravo had failed to meet the requisite standard of care and that their negligence contributed substantially to Kevin’s injuries. The government requested that the damages be apportioned under Fla. Stat. § 768.81(3) between the culpable Naval personnel (for which it admitted responsibility) and Dr....

...government would be fully responsible for Dr. Kushner’s part of the judgment. The court ruled that even if it were wrong about Dr. Kushner being a government employee, apportionment would still not be proper because of two exceptions to Fla. Stat. § 768.81(3): (1) the initial-subsequent tortfeasor exception, and (2) the indivisible injury exception. The court entered a total judgment against the government in the amount of $60,485,788.98 to Bravo, Rodriguez, and Kevin....

...7  The government raises three primary issues on appeal, contending that the district court erred by: (1) finding that Dr. Kushner was a government employee instead of an independent contractor; (2) failing to apply Fla. Stat. § 768.81(3) to apportion the damages among the joint tortfeasors; and (3) not further reducing the damages awarded. A. There is some dispute among the circuits about whether an individual’s statu...

...ssue standing. The district court stated that the question of Dr. Kushner’s employment 8 status was “merely academic,” because the court determined that either of two exceptions to Fla. Stat. § 768.81(3) applied, making all of the defendants jointly and severally liable for the entire damage award regardless of whether Dr. Kushner was an employee of the government....

...Alternatively, the court addressed the issue of Dr. Kushner’s employment status, and interpreted the various contracts to mean that he was employed by the government for FTCA purposes. Because we agree with that alternative ruling we need not address the § 768.81(3) issues. We have established the “control test” for determining whether an individual is a government employee or an independent contractor: “[A] person is an employee of the Government if the Government controls and super...

...Kushner was a government employee for FTCA purposes. 11  Because Dr. Kushner was an employee of the government, we need not reach the government’s argument that liability should have been apportioned among the separate tortfeasors in accordance with Fla. Stat. § 768.81(3). Regardless of the applicability of that statue, the government is liable for the entire judgment in its role as employer. B. Our review of the size of the damages verdict is for clear error....

...Dougherty, 636 So.2d 746, 748 (Fla. 2d DCA) (without evidence of the nonparty defendant's negligence, the named defendant has "not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre "), review denied, 645 So.2d 457 (Fla.1994)....

...imant to recover even though the claimant is ninety-nine percent negligent. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Second, in Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987), we recognized, by denying constitutional attacks upon section 768.81, Florida Statutes (Supp.1986), id. at 1090, 1091, the legislature's authority to legislate in respect to comparative negligence by legislative modification of the common-law doctrine of joint and several liability. It is noteworthy that pursuant to section *1252 768.81, Florida Statutes (1995), the common-law doctrine of joint and several liability remains applicable to economic damages in instances in which a party's percentage of fault equals or exceeds that of a particular claimant....

...Joint and several liability was established through the common law and later codified by the legislature. It allows a claimant to recover all damages from one of multiple defendants even though that particular defendant may be the least responsible defendant in the cause. Under the present section 768.81(3), Florida Statutes, a party who has more responsibility than the plaintiff may be made to pay all of the plaintiff's economic losses pursuant to the doctrine of joint and several liability....

...damages available to the suitor." --- U.S. at ----, 119 S.Ct. at 672. The comparative fault regime urged by American goes beyond the issue of the amount of damages available to the suitor; it acts to limit the liability, or fault, of the air carrier. See Fla. Stat. Ann. § 768.81(3) ("the court shall enter judgment against each party liable on the basis of such party's percentage of fault")....

...solve the issue of that defendant's proportionate share of negligence. We reject the contention that it was essential that DeMario remain in the suit in order to determine her share of negligence. For the purpose of apportioning noneconomic damages, section 768.81(3), Florida Statutes (1989), [3] requires the fault of all persons responsible for an accident to be determined regardless of whether they are parties to the litigation....

...dant has shallow pockets. The plaintiff may accept a fixed payment from the settling defendant (typically the full extent of his insurance coverage) in exchange for his assistance in securing a large judgment against his codefendant. [3] Apparently, section 768.81(3), which was first enacted in 1986, was not applicable in Whited....

...or resolution. The first question relates to the application of Florida's comparative fault statute to a vicariously liable party. It asks whether a vicariously liable party should have the negligence of the active tortfeasor apportioned to it under section 768.81, Florida Statutes (1997), such that recovery of its own damages is correspondingly reduced....

...n Rountree's status as the subcontractor to transportation contractor WOKO. Id. at 1253-54. Comparative Fault Issue AHA argued on appeal that its damages recovery should not be limited to 41% under the comparative fault principles *466 enunciated in section 768.81, Florida Statutes (1997). Nat'l R.R. Passenger Corp., 286 F.3d at 1254-56. AHA argued that a party who is only vicariously liable cannot have another's fault apportioned to him under section 768.81, as this statute only applies to parties who are directly negligent, who actively participate in the accident at issue, or who constitute joint or concurrent tortfeasors. AHA relied upon the use of the word "fault" in the statute. In response, KUA, FMPA, CSX, and Amtrak (the "comparative fault appellees") noted that under section 768.81(2) any contributory fault that is "chargeable to the claimant" has the effect of diminishing damages "for an injury attributable to the claimant's contributory fault." Id. at 1256. After examining the parties' arguments and reviewing Florida case law, the Eleventh Circuit concluded that existing Florida case law does not resolve the question of how section 768.81 is to be interpreted with regard to vicarious liability. Accordingly, the Eleventh Circuit certified the following question of law to this Court for instructions: SHOULD A VICARIOUSLY LIABLE PARTY HAVE THE NEGLIGENCE OF THE ACTIVE TORTFEASOR APPORTIONED TO IT UNDER FLORIDA STATUTE § 768.81 SUCH THAT RECOVERY OF ITS OWN DAMAGES IS REDUCED CONCOMITANTLY? Id....

...ty that is more responsible for an accident recovering more than a party that is less responsible. But, this doctrine is designed to compute each party's liability based on the damages they caused as opposed to the damages they suffered. Id. at 439. Section 768.81, Florida Statutes, codified the holding of Hoffman v....

...(3) APPORTIONMENT OF DAMAGES.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability;. . . . § 768.81(2)-(3), Fla. Stat. (1997). [3] Nothing in the legislative history of this statute indicates an intention other than a direct codification of this Court's adoption of comparative liability. Section 768.81 was enacted as part of the comprehensive Tort Reform and Insurance Act of 1986....

...o be directly negligent, the comparative fault statute is not applicable. In contrast, the railroads note that the statute provides that any award of damages is to be diminished proportionately by "any contributory fault chargeable to the claimant." § 768.81(2), Fla....

...AHA relies in part on Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 20 (Fla. 1st DCA 1996), approved sub nom. Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla.1997), a decision in which the First District Court of Appeal interpreted "fault" under section 768.81 as equating to a defendant's amount of "negligence." However, the First District's analysis was narrowly aimed at distinguishing negligent acts *470 from intentional, criminal acts. The First District concluded that the Legislature did not intend for the language in section 768.81 to treat negligence and intentional, criminal acts the same....

..."The party who is vicariously liable is responsible to the plaintiff to the same extent as the primary actor." June F. Entman, The Nonparty Tortfeasor, 23 Mem. St. U.L.Rev. 105, 106 (1992). S & S was vicariously liable for Rountree's negligence and AHA, in turn, stepped in to S & S's shoes as a subrogee. Our conclusion that section 768.81 applies to vicariously liable parties as well as active tortfeasors also harmonizes with Florida's contribution statute....

...tly dangerous activities S & S was vicariously liable for the actions of Rountree. This determination was made after fault had already been apportioned to the liable parties by the jury. AHA cites two additional cases to support its proposition that section 768.81 is not applicable to this case....

...that fairness and good reason require that the fault of the defendant and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is a cause in fact and a proximate cause. Id. (citing § 768.81, Fla....

...nd that Florida statutory and case law requires juries to apportion fault among all persons who contributed to the resulting injuries and that enhanced-injury cases do not constitute an exception to this well-established rule. They cite section *435 768.81(3), Fla....

...(1997), which provides for the entry of "judgment against each party liable on the basis of such party's percentage of fault" and this Court's interpretation of the statute in Fabre v. Marin, 623 So.2d 1182 (Fla.1993). In Fabre this Court concluded "that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." Id....

...pon whether a defect existed and gave rise to the enhanced injuries suffered by the plaintiff. Intentional Tort Exception to Comparative Fault The estate and D'Amario also contend that even if we were to hold that the comparative fault principles of section 768.81, Florida Statutes (1997), apply to crashworthiness cases, we should hold that this case falls within the intentional tort exception to section 768.81. Section 768.81(4)(b) states that the comparative fault statute does not apply "to any action based upon an intentional tort." Id. § 768.81(4)(b)....

...He sued Wal-Mart and Merrill Crossings Associates, the owner of the shopping center, for their failure to provide reasonable security measures. The comparative fault of the unknown assailant was not included on the jury verdict form. In holding that the comparative fault provisions of section 768.81 do not apply to such a situation, this Court approved the trial court's action and distinguished Fabre: In Fabre, the plaintiff was an innocent passenger suing for damages resulting from an automobile accident caused by the combined ne...

...TO EMPLOY REASONABLE SECURITY MEASURES, WITH SAID OMISSION RESULTING IN AN INTENTIONAL, CRIMINAL ACT BEING PERPETRATED UPON THE PLAINTIFF BY A NON-PARTY ON PROPERTY CONTROLLED BY THE DEFENDANTS, AN "ACTION BASED UPON AN INTENTIONAL TORT" PURSUANT TO SECTION 768.81(4)(B), FLORIDA STATUTES (1993), SO THAT THE DOCTRINE *561 OF JOINT AND SEVERAL LIABILITY APPLIES? IN SUCH AN ACTION, IS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCLUDE AN INTENTIONAL, CRIMINAL NON-PARTY TORTFEASOR FROM THE VERDICT FORM? Wal-Mart Stores, Inc....

...Merrill Crossings recovered a judgment on its cross-claim for indemnity against Wal-Mart plus attorney's fees and costs. Wal-Mart appealed. The First District Court of Appeal concentrated on the issue of whether the trial court erred in failing to include the assailant on the verdict form. The court looked to section 768.81, Florida Statutes (1993), and Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996), review dismissed, 679 So.2d 773 (Fla.1996), and ultimately concluded that excluding the assailant from the verdict form was not error. Section 768.81 codifies "Comparative Fault"; it provides in relevant part: (2) EFFECT OF CONTRIBUTORY FAULT.—In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded...

...In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties. (b) This section does not apply ... to any action based upon an intentional tort.... § 768.81, Fla....

...Ady v. American Honda Finance Corp., 675 So.2d 577 (Fla.1996), and Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977), for the principle that statutes in derogation of the common law must be strictly construed. The court quoted section 768.81(4)(a), which states that the statute applies only to "negligence cases" and not to "any action based upon an intentional tort." Because the statute was to be strictly construed, the court accepted McDonald's contention that the substan...

...The court noted that it was foreseeable, intentional conduct from which the appellants had a duty to protect McDonald. The district court distinguished the instant case from our decision in Fabre v. Marin, *562 623 So.2d 1182 (Fla.1993), where we said: "We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." Fabre, 623 So.2d at 1185....

..... and in the social condemnation attached to it.' Prosser and Keeton on the Law of Torts, § 65, at 462 (5th ed.1984)." Wal-Mart, 676 So.2d at 21. The court concluded that excluding the criminal assailant from the verdict form was not error because section 768.81 does not apply to the instant action, but certified the questions at issue....

...Thus, it would be irrational to allow a party who negligently fails to provide *563 reasonable security measures to reduce its liability because there is an intervening intentional tort, where the intervening intentional tort is exactly what the security measures are supposed to protect against. Section 768.81(4)(a) explicitly states, "In determining whether a case falls within the term `negligence cases,' [such that comparative fault would be required] the court shall look to the substance of the action and not the conclusory terms used by the parties." The Slawson court, in holding that section 768.81 did not apply to that case, reasoned: Hence looking "to the substance of the action and not the conclusory terms used by the parties," we conclude that the substance of this action was an intentional tort, not merely negligence....

...The substance of the action here is that McDonald was the victim of an intentional tort; we are not faced with the kind of true negligence action we examined in Fabre. Accordingly, we agree with the reasoning of the Slawson court as to this issue and hold that section 768.81, by its own terms, does not apply to the instant case to mandate comparative fault. Because we hold that section 768.81 is not applicable to the instant case, it was not error to exclude the intentional tortfeasor from the verdict form....

...1999)("Joint and several liability is also appropriate when the tortious acts of multiple tortfeasors combine to produce a single, indivisible injury."). Application of the indivisible injury rule is not inconsistent with Florida statutory law concerning the apportionment of damages amongst tortfeasors based on fault. Section 768.81(3), Florida Statutes (1999), provides that trial courts "shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." In Fabre v. Marin, 623 So.2d 1182 (Fla.1993), this Court observed that the Legislature's intention in enacting section 768.81 was to "replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." Fabre, 623 So.2d at 1185....

...suitor.” --- U.S. at ---, 119 S. Ct. at 672. The comparative fault regime urged by American goes beyond the issue of the amount of damages available to the suitor; it acts to limit the liability, or fault, of the air carrier. See Fla. Stat. Ann. § 768.81(3) (“the court shall enter judgment against each party liable on the basis of such party’s percentage of fault”)....

..._____% The same interrogatory was submitted on the verdict form for Worlds. In apportioning fault, the jury determined that Barton was 98% liable and Nunes and Interian were each 1% liable. Barton and plaintiffs argue that this apportionment interrogatory is in direct and express conflict with section 768.81, Florida Statutes, and Merrill Crossings Associates v. McDonald, 705 So.2d 560 (Fla.1997). In Merrill Crossings, the supreme court held that section 768.81, Florida Statutes, requiring that judgments against parties in negligence cases be based on comparative fault rather than joint and several liability, does not apply to an action based upon an intentional tort....

...s from the reasonably foreseeable intentional attack of a third party. A jury agreed with both claims and assessed economic damages of $88,000 and non-economic damages of $212,000. The trial judge, however, had decided that the action was covered by section 768.81, Florida Statutes, and consequently asked the jury to apportion fault between Kidd and Burger King....

...The judge later reduced Burger King's liability for non-economic damages in accordance with the jury's apportionment. On appeal, Mrs. Slawson argues that the statute is inapplicable to this action founded on an intentional tort. We agree and reverse. Section 768.81 provides in pertinent part as follows: "(3) Apportionment of damages.— In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the ba...

...In other words, statutes abolishing or limiting the common law must be clear as to the abrogation or change; when the extent of the abrogation or change is not clear from the text of the *258 statute, then the common law rule stands. Id. Beginning with the text of section 768.81, we find in subsection (3) that proportionate fault is to be diminished or reduced only in those actions to which the section applies....

...Reading the statute as contended by Burger King produces a perverse and irreconcilable anomaly. On the one hand Burger King owed a duty to protect her from foreseeable intentional assaults by other patrons; but on the other hand, Burger King contends, it is entitled under section 768.81 to diminish or defeat its liability for the breach of that duty by transferring it to the very intentional actor it was charged with protecting her against....

...very act that the landlord had a duty to protect against, and passing off the liability in whole or in part to the very person that Burger King had a duty to protect against. The clear distinction that the legislature has so carefully constructed in section 768.81(4) between intentional and negligence actions precludes us from finding an intent in this statute to erase or obliterate the common law rules barring the Burger King defendants in this action from reducing their own liability by the in...

...ure negligence action is quite different from whether the statute is even applicable to the action in which it was raised. In order to facilitate supreme court review of the issue, however, we hereby certify the following question to the court: Does section 768.81 require or permit apportionment of fault in an action by a victim of an intentional assault against the person committing the assault and another person who, reasonably foreseeing the event, fails to take steps to prevent it from occurring? We address the second issue on appeal....

...damages. She also contends that the trial judge should have *260 instructed the jury not to reduce plaintiff's damages by Kidd's percentage of fault. Even if, for the sake of argument, this were properly a case requiring apportionment of fault under section 768.81, we find prejudicial error in so limiting plaintiff's closing argument and in failing to instruct the jury that apportionment of fault does not permit any reduction by the jury in the assessment of damages. As one judge has pointed out, if a defendant seeks the benefit of section 768.81, "the jury should be told about the effect that the statute will have on its verdict, just as it is told about the effect of traditional comparative negligence." Seminole Gulf Ry....

...1st DCA 1990); and Taylor v. State, 330 So.2d 91 (Fla. 1st DCA 1976). Although these are criminal cases, the principle is no less applicable to civil cases as to law the court has decided is applicable to the action and which affects the issues to be tried. Again, even if section 768.81 required apportionment in this case, the failure to permit the argument and give the instruction requires a new trial on damages....

...GLICKSTEIN and WARNER, JJ., concur. NOTES [1] For the sake of convenience, we refer to the three appellees as "Burger King" even though they each occupy a different status as to the restaurant in suit. [2] The parties have stipulated that the legislative history to section 768.81, both written and audio, offers no assistance in understanding the text....

...Hal B. Anderson of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, Amicus Curiae for Florida Defense Lawyers Association. COBB, J. We consider two issues in this appeal: (1) whether it was error to apply the October 1, 1999 amendment to section 768.81, Florida Statutes, limiting joint and several liability, retroactively to this personal injury cause of action which accrued in August, 1994 and (2) whether the trial court erred in refusing to grant the plaintiffs a new trial or additur on the issue of damages....

...hat the undisputed evidence established that Basel's past lost wages were $317,450, his future loss of earning capacity was $933,067 and his future medical expenses were $3,869,471. The defendants moved the court to enter judgment in accordance with section 768.81, Florida Statutes, as amended by Chapter 99-225 section 27, Laws of Florida, which became effective October 1, 1999....

...Application of the 1999 statutory amendment would result in a judgment against Queen and McFarland & Son, Inc. being limited to $718,128.90. The plaintiffs filed a motion asking the court to enter judgment against the defendants in accordance with the version of section 768.81, Florida Statutes that existed prior to the October 1, 1999 amendment....

...eded to enter final judgment against Queen and McFarland & Son, Inc. for $718,128.90 (economic damages of $650,128.90, non-economic damages of $38,000), and against the Estate of Jean Basel for $2,279,945. APPLICATION OF OCTOBER 1, 1999 AMENDMENT TO SECTION 768.81, FLORIDA STATUTES, TO PENDING CAUSE OF ACTION— At common law, each defendant tortfeasor who caused injuries to a plaintiff was *691 jointly and severally liable for the total of the plaintiff's damages, regardless of the extent of each defendant's fault....

...While recognizing logic in Disney's position that it should not be responsible for 86% of the damages, the Florida Supreme Court declined to judicially disturb joint and several liability, instead suggesting that the subject was best left to the legislature. The legislature enacted section 768.81(3), Florida Statutes, providing for liability to be determined on the basis of the percentage of fault of each tortfeasor....

...ntiff's economic damages. The statute precluded joint and several liability for non-economic damages ( i.e., pain and suffering), except where the amount of damages (economic and noneconomic) was $25,000 or less. [1] The October 1, 1999 amendment to section 768.81 altered joint and several liability for economic damages based upon a sliding scale, depending upon whether the plaintiff was with or without fault and depending upon the percentage of fault of the defendant....

...aintiff was without fault. If the defendant was more than 50% negligent, his joint and several liability was capped at $1,000,000 if the plaintiff had some fault, and capped at $2,000,000 if the plaintiff was without fault. Under the 1986 version of section 768.81 (which existed when Basel's cause of action *692 accrued in August 1994), there was no limit to the amount of economic damages that Basel could recover against each defendant whose fault was equal to or greater than his....

...Basel argues that this monetary difference is a substantive one and that the statutory amendment can only be applied prospectively and not retroactively so as to impair what he claims is a vested right. The defendants counter that Chapter 99-225, section 27, Laws of Florida, which contained the amendment to section 768.81, demonstrates that the legislature intended the amendment to apply to existing causes of action as the legislature viewed the amendment as causing no substantive change to vested rights....

...effort, apply to existing causes of action. Retroactive application will not be left to implication. In the absence of an explicit legislative expression, the default rule is invoked and the inquiry becomes whether the amendment in Chapter 99-225 to section 768.81 is substantive in nature or procedural or remedial....

...ro rata share of the judgment. The court stated that the Contribution Act "does not increase the liability of any of the participants in the offense," and therefore it could be applied retroactively. In contrast, application of the 1999 amendment to section 768.81, Florida Statutes, to this case acts to decrease the pre-existing legal liability of some of the defendants to the plaintiff....

...suffered a severe, disabling brain injury in the accident, would live another 32.6 years. The trial court did not abuse its discretion in denying additur. The final judgment is reversed for entry of a corrected final judgment applying the version of section 768.81(3), Florida Statutes, in existence in August, 1994....

...he time it was made. Pre-trial there was no way for the Defendants to know that the bulk of the damages would be economic and the percentage of fault of Plaintiff would be less than the percentage of fault applicable to any particular Defendant. See section 768.81(3), Fla....

...The rule was amended in 1996, the Committee Note informs, in order to conform the rule to Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from on other grounds, Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Fabre held that subsection 768.81(3) requires that judgment should be entered against each liable party on the basis of that party's percentage of fault....

...ding that Fabre defendants are nonparties that are alleged by a party defendant to be solely or partially negligent and should be placed on the verdict form so that there can be apportionment of fault against them for noneconomic damages pursuant to section 768.81(3), Florida Statutes (1995)....

...3d DCA 1968). Exclusion of Intentional Criminal Attacker From Verdict Form The trial court held that because the perpetrator who shot McDonald had committed an intentional, criminal act, the attacker would not be included on the verdict form. Citing section 768.81, Florida Statutes, which the trial court found inapplicable, and Fabre v....

...4th DCA 1996) (reversing trial court's ruling that had allowed jury in negligence suit to apportion fault and liability between the negligent fast-food restaurant and the intentional, criminal tortfeasor who attacked the plaintiff on the restaurant's premises). The statute reads in pertinent part: 768.81 Comparative fault.___ (1) DEFINITION.___As used in this section, "economic damages" means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; ......

...to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895 [footnotes deleted]. § 768.81, Fla....

...nduct of another on his land by simply pointing to the intentional conduct of the attacker. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980). 671 So.2d at 257 (emphasis in original). Being in derogation of the common law, section 768.81, Florida Statutes, must be strictly construed in favor of the common law....

...dicate such change clearly, or else the rule of common law stands. Id. at 364. A court will not infer that a statute was intended to enact any change in the common law other than what is specified and plainly pronounced. Therefore, a statute such as section 768.81 should not be interpreted to displace the common law any more than is necessary. Godales v. Y.H. Investments, Inc., 667 So.2d 871 (Fla. 3d DCA 1996) (as § 768.81 does not explicitly abrogate common-law rule that child's recovery should not be diminished by parent's negligence, statute must be construed to preserve common-law rule); Robinson & St....

...King produces a perverse and irreconcilable anomaly. On the one hand Burger King owed a duty to protect [the victim, a patron] from foreseeable intentional assaults by other patrons; but on the other hand, Burger King contends, it is entitled under section 768.81 to diminish or defeat its liability for the breach of that duty by transferring it to the very intentional actor it was charged with protecting her against....

...held liable due to spousal immunity provision in policy), rev. den., 598 So.2d 77 (Fla.1992). See Fabre v. Marin, 597 So.2d 883, 886 (Fla. 3d DCA 1992). The Fabres' appeal required the Supreme Court of Florida to determine the legislative intent of section 768.81, Florida Statutes....

...have been or could have been joined as defendants. Even if it could be said that the statute is ambiguous, we believe that the legislature intended that damages be apportioned among all participants to the accident. * * * * * * We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident. Fabre, 623 So.2d at 1185. Additionally, the supreme court held: The court below erroneously interpreted section 768.81 by concluding that the legislature would not have intended to preclude a fault-free plaintiff from recovering the total of her damages....

...g joint and several liability was that in the event one of the defendants is insolvent the plaintiff should be able to collect the entire amount of damages from a solvent defendant. By eliminating joint and several liability through the enactment of section 768.81(3), the legislature decided that for purposes of noneconomic damages a plaintiff should take each defendant as he or she finds them....

...The "apportionment of damages" provision in the comparative fault statute states: In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability. § 768.81(3), Fla....

...223 So.2d at 555 (negligence connotes an unintentional tort). This distinction was addressed in Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064 (Fla. 5th DCA), rev. den., 666 So.2d 146 (Fla.1995), which required the district court to resolve how section 768.81, Florida Statutes, affects a case with two joint tortfeasors___one alleged to be negligent and the other charged with a willful tort....

...Dean Prosser echoed these conclusions, stating that intentional wrongdoing differs from simple negligence "not merely in degree but in the kind of fault... and in the social condemnation attached to it." Prosser and Keeton on the Law of Torts, § 65, at 462 (5th ed.1984). The public policy underlying our construction of section 768.81, Florida Statutes, is that negligent tortfeasors such as Wal-Mart and Merrill Crossings should not be permitted to reduce their fault by shifting it to another tortfeasor whose intentional, criminal conduct was a foreseeable result of their negligence....

...It is neither unfair nor irrational for an innocent plaintiff to collect full damages from negligent defendants who knew, or should have known, that an injury would be intentionally inflicted and failed in their duty to prevent it. McDonald notes that it makes sense that section 768.81, Florida Statutes, protects a plaintiff by allowing the choice between collecting full damages from either the intentional actor or the negligent party whose negligence caused the intentional act. At the same time, the contribution statute prevents an intentional actor who pays the plaintiff from collecting against a negligent co-tortfeasor. § 768.31(2)(c), Fla. Stat. (1993). In summary, we conclude that by its express language in section 768.81, Florida Statutes, the legislature did not intend to treat negligent acts and criminal, intentional acts the same....

...The inherent distinction between negligent and criminal, intentional torts is considerable, and we find it illogical and impractical for a fact-finder to have to compare or balance the two types of conduct. We believe it is reasonable to interpret section 768.81, Florida Statutes, as a legislative preference not to transfer a negligent tortfeasor's duty of care over to a criminal tortfeasor, especially where a defendant's acts or omissions are the proximate cause of the intended tort. See Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984) (lounge proprietor owes its patrons the duty to protect them from reasonably foreseeable harm). Therefore, we conclude that section 768.81 is inapplicable to the instant action....

...to employ reasonable security measures, with said omission resulting in an intentional, criminal act being perpetrated upon the plaintiff by a non-party on property controlled by the defendants, an "action based upon an intentional tort" pursuant to section 768.81(4)(b), Florida *23 Statutes (1993), so that the doctrine of joint and several liability applies? In such an action, is it reversible error for the trial court to exclude an intentional, criminal non-party tortfeasor from the verdict form? AFFIRMED....

...The causes of action asserted against appellants in the complaint are based on negligent failure to provide adequate security to prevent criminal attacks and negligent failure to warn of the danger of such attacks. As an initial matter, it seems to me relatively clear that section 768.81, Florida Statutes (1993), is intended to apply to claims of this type. I can arrive at no other conclusion from the language of section 768.81(4)(a), which states that "[t]h[e] section applies to negligence cases," and then defines "`negligence cases'" to include "civil actions for damages based upon theories of negligence." Respectfully, I am unable to follow the reasoning which leads the court in Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996)—and the majority here—to conclude that claims such as those asserted by appellees are actually "based upon an intentional tort." Id. at 257-58. Having concluded that section 768.81 was intended by the legislature to apply to actions such as this, my examination of that section, and particularly of subsection (3), leads me to conclude that an ambiguity exists because of the use of the word "fault." In particular,...

...From a reading of the statute, alone, it seems to me that the two meanings are, more-or-less, equally plausible. Searching for assistance in discerning the meaning intended by the legislature, I have turned to the legislative history of the statute. Section 768.81 was originally enacted as section 60 of the Tort Reform and Insurance Act of 1986....

...SCM Glidco Organics Corp., 606 So.2d 722, 725 (Fla. 1st DCA 1992) ("Staff analyses of legislation should be accorded significant respect in determining legislative intent"). From a reading of the relevant portions of these two documents, it seems to me relatively clear that section 768.81 was intended to do two things, and nothing more: (1) to codify the law regarding comparative negligence as it then existed in the state; and (2) to abolish, subject to limited exceptions, the common law doctrine of joint and several liability in negligence cases....

...is," and the "defendants will remain jointly and severally liable for the entire amount." 318 So.2d at 393-94. Reading the court's decisions in Hoffman v. Jones and Lincenberg v. Issen together with the Senate and House Staff Analyses of what became section 768.81, the source of the word "fault" becomes clear (at least to me)— the word "fault" is used repeatedly by the court in both opinions, in a sense obviously intended to be synonymous with the word "negligence." Thus, in Hoffman, the court...

...ased on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault, and for these reasons this Court recedes from its earlier decisions to the contrary. Id. at 391. Clearly, the word "fault" used in section 768.81 was merely lifted by the drafters from the language used by the court in Hoffman and Lincenberg....

...ages to those individuals or entities found to have been negligent— those whose conduct was more than negligent were not intended to figure into the equation. I note, in passing, that, if my analysis regarding the source of the word "fault" used in section 768.81 is correct, then it seems reasonable to conclude that the word "party" used in section 768.81(3) was, likewise, lifted from Hoffman and Lincenberg, and was, therefore, intended to have the same meaning as was ascribed to it in those cases....

...Clearly, in those cases, the court was using the word to refer only to those who were named participants in a lawsuit. If this analysis is correct, then perhaps the supreme court might wish to reconsider its conclusion in Fabre v. Marin, 623 So.2d 1182 (Fla.1993), that the legislature intended the word "party" used in section 768.81(3) to mean any individual or entity whose conduct "contributed to the accident, regardless of whether they have been or could have been joined as defendants." Id....

...As such, the trial court did not abuse its discretion in striking St. Mary's defenses and directing a verdict for the Brinsons on the spoliation count. We next address St. Mary's argument that it was error for the trial court to refuse to instruct the jury on apportionment of damages under section 768.81(3), Florida Statutes (1993)....

...[4] There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer's liability is not based on fault, section 768.81(3), Florida Statutes *572 (1999), does not allow the defendants to apportion damages between themselves....

...e total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. See Fabre v. Marin, 623 So.2d 1182, 1184 (Fla.1993) (citing Louisville & N. R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914)). The enactment of section 768.81, Florida Statutes, represented a policy shift in the State of Florida from joint and several liability that resulted in a single recovery for the plaintiff to the apportionment of fault. Therefore, instead of each defendant being severally responsible for all of the plaintiffs damages, with limited statutory exceptions, the defendant is responsible only for the percentage of fault determined by the jury. See § 768.81, Fla. Stat. (2000). The version of section 768.81 in effect both at the time of the Wells decision and the First District's opinion in this case, provided in pertinent part: [1] (3) Apportionment of damages.-In cases to which this section applies, the court shall enter judgment agains...

...ability. . . . . (5) Applicability of joint and several liability.—Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions *962 in which the total amount of damages does not exceed $25,000. § 768.81, Fla. Stat. (1997). As this Court explained in Conley v. Boyle Drug Co., 570 So.2d 275, 285 (Fla. 1990): [J]oint and several liability is only favored within this state in those limited circumstances set forth in sections 768.81(3), (4) and (5), Florida Statutes (1989). Under sections 768.81(3), (4) and (5), joint and several liability is abrogated except: 1) in cases of economic damages "with respect to any party whose percentage of fault equals or exceeds that of a particular claimant;" 2) in "any action brought by any person to...

...from a settlement or partial settlement than he could receive as damages." Wells, 659 So.2d at 252 (quoting Neil, 859 P.2d at 206). After reviewing the applicable setoff statutes, we concluded that "[t]he setoff provisions, which were enacted before section 768.81, presuppose the existence of multiple defendants jointly liable for the same damages....

...Hence, the remaining tortfeasor-defendant, in effect, receives a "contribution" from the settling tortfeasor in the form of a reduction in the judgment for any damages the remaining tortfeasor-defendant may face. This is how the legislative *964 contribution scheme worked before the enactment of section 768.81(3). With the enactment of section 768.81(3), the need for, and the role of, the contribution scheme set out above has been substantially reduced. Under section 768.81(3), a judgment is to be entered against a particular tortfeasor-defendant only "on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." Since this tortfeasor-defendant now...

...tfeasors, or by a reduction in the judgment entered against him in the amount of any settlements made by the claimant with other tortfeasors. Since the "problem" of a tortfeasor paying more than his fair share has been eliminated by the enactment of section 768.81(3), the "solution" to the problem by the scheme of contribution and setoff is no longer needed....

...The jury awarded the plaintiffs damages, found the county 17.5% at fault, and found the decedent 55% at fault for failing to wear his seatbelt. See id. The Third District reversed the trial court's finding that the county was jointly and severally liable for the $174,536 judgment. See id. The court concluded that pursuant to section 768.81(3), the county could not be held jointly and severally liable for economic damages because its percentage of fault was less than the decedent's percentage of fault and pursuant to section 768.81(5), the county could not be held jointly and severally liable for noneconomic damages because the total amount of damages exceeded $25,000....

...negligence action, relying upon the setoff statute contained in section 768.041(2), Florida Statutes (1993). However, the decision in Lauth failed to mention the effect of this Court's opinion in Wells and the introduction of comparative fault under section 768.81....

...mages. Moreover, under the First District's decision, a defendant would always be entitled to a setoff from an award of economic damages, even if, as in Frederic, the defendant was not held jointly and severally liable for the economic damages under section 768.81(3), because its percentage of fault was less than the plaintiff's....

...We conclude, following our reasoning in Wells, that the applicability of the setoff statutes is predicated on the existence of other tortfeasors who are liable for the same injury as the settling party. The language of the setoff statutes does not suggest a different result in this case. Although the Legislature amended section 768.81(3) in 1999, see supra note 1, the *966 Legislature enacted the setoff statutes before it enacted the comparative fault statute and the language of the setoff statutes has not changed since Wells....

...sistent with our opinion in this case. It is so ordered. [4] WELLS, C.J., and SHAW, HARDING, ANSTEAD, LEWIS, and QUINCE, JJ., concur. NOTES [1] Although not relevant for purposes of the resolution of the question in this case, the current version of section 768.81(3), which the Legislature amended in 1999, differs significantly from the 1997 version in creating further statutory exceptions when a defendant will not be held jointly and severally liable. See ch. 99-225, Laws of Fla.; § 768.81(3), Fla....

...Marin, 623 So.2d 1182 (Fla. 1993), and Wells. Finally, Schnepel's reliance upon the Fourth District's decision in Centex Rooney Construction Co. v. Martin County, 706 So.2d 20 (Fla. 4th DCA 1997), appears misplaced, as Centex Rooney is a breach of contract action, and thus section 768.81 is inapplicable....

...[16] The plaintiff's total award is *944 first reduced by his or her comparative fault in causing the accident. This reduced sum is then reduced a second time by deducting the percentage of the plaintiff's damages that were caused by the failure to wear a seat belt. [17] This practice is inconsistent with section 768.81(2), Florida Statutes (1995), and our holding today....

...Of course, a plaintiff may also be found to have been comparatively negligent if she was partially at fault in causing an accident. There is no reason to treat these two examples of comparative negligence separately on a verdict form. According to section 768.81(2), the percentage of plaintiff's damages that is attributable to plaintiff's negligent conduct (i.e., plaintiff's total comparative negligence) should be used to proportionately reduce the plaintiff's recovery....

...mine if Hyatt has any liability. Although Dolphin is free to claim there is a Fabre defendant, Dolphin must bear the burden of naming that defendant and proving its claim before that Fabre *620 defendant can be included on the jury verdict form. See § 768.81(3)(d) and (e), Fla....

...The court reasoned: There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer's liability is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow the defendants to apportion damages between themselves....

...Ignacio's misuse of the lift did not proximately cause the tip over, it certainly caused his injuries and death. Had the parties used the lift as intended — to lift products and materials to higher elevations — Mr. Ignacio would not have been injured in the tip over. [34] Florida Statute § 768.81(2) details the effect of contributory fault....

...Instead, we conclude that where a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81, Florida Statutes (1997)....

...other type of conduct) ]; and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 401.22f See F.S. 768.81 (1993); Fabre v....

...ype of conduct)]; and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of the [loss] [injury] [or] *715 [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 402.14e See F.S. 768.81 (1993); Fabre v....

...se of any [loss] [injury] [or] [damage] sustained by (claimant). NOTES ON USE FOR 409.11 1. In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court held that the doctrine of comparative negligence, as codified in F.S. 768.81, applied to an action for negligent misrepresentation as set forth in the RESTATEMENT (2D) OF TORTS § 552, which requires proof of justifiable reliance....

...o not attempt to define the terms. 3. F.S. 768.0415 refers only to "negligence." The committee takes no position as to whether the statute is limited to negligence cases or the definition of "negligence" in this statutory context. For example, see F.S. 768.81(4)(a) defining "negligence cases." 4....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so that the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases....

...Appellants assert error in the trial court's failure to reduce the jury damage award by fifty percent, the percentage of negligence the jury attributed to the Fabres. At the time of the automobile accident, Mrs. Marin was a passenger and not at fault. We agree with the trial court's interpretation of section 768.81(3), Florida Statutes (Supp....

...The trial court denied the motion for a new trial, granted a remittitur, reducing Mrs. Marin's economic damages by $5,000, and entered an amended final judgment for $357,750. The Fabres and State Farm [collectively "Appellants"] appeal. Appellants urge reversal of the amended final judgment. They contend that section 768.81(3), Florida Statutes, is unambiguous and that its plain and obvious meaning requires that judgment against appellants be limited to fifty percent of the damages awarded, in accordance with the percentage of fault the jury attributed to them. Appellants correctly assert that Messmer v. Teacher's Ins. Co., 588 So.2d 610 (Fla. 5th DCA 1991), is indistinguishable from the case at hand; however, we decline to adopt its conclusion. On the other hand, Mrs. Marin argues that section 768.81(3) is ambiguous and that the trial court's construction of the statute is consistent with the legislature's intent. It is well settled that a clear and unambiguous statute must be given its plain and obvious meaning. Holly v. Auld, 450 So.2d 217, 218 (Fla. 1984). However, this axiom is inapplicable to section 768.81(3) because the statute is ambiguous. Section 768.81(3) provides: "In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability......

...ault" for which judgment shall be entered, that is, whether to consider the fault attributable to all defendants, or to all participants in the accident. The resolution again depends on the definition assigned to the term "party." The ambiguities in section 768.81(3) preclude us from discerning its plain meaning....

...Thus, appellants argue, the judgment against them should be equated to their percentage of fault. We do not agree that the legislature's intent in promulgating this subsection was to deprive a fault-free innocent plaintiff of recovery. [5] In fact, several factors counter this construction. Section 768.81(2) provides: (2) EFFECT OF CONTRIBUTORY FAULT....

..., but does not bar recovery. (Emphasis added). In subsection three, the legislature speaks of "any party whose percentage of fault equals or exceeds that of a particular claimant," contemplating a scenario where the claimant is found to be at fault. Section 768.81(3), Fla....

...," and is not to be construed as contemplating a reduction in a claimant's recovery by the percentage of liability assigned to individuals who are not defendants in the lawsuit. Unreasonable consequences would result if appellants' interpretation of section 768.81(3) were adopted....

...Marin is barred from recovering from him by the doctrine of interspousal tort immunity. Sturiano v. Brooks, 523 So.2d 1126 (Fla. 1988); Raisen v. Raisen, 379 So.2d 352 (Fla. 1979). The legislature expressly diminished claimant's recovery only by the percentage of claimant's fault. Sections 768.81(2), (3), Fla....

...n. In our view, the legislature, in discarding joint and several liability, intended to apportion liability among defendant tortfeasors to the extent each was determined to be at fault; it did not curtail a fault-free plaintiff's ability to recover. Section 768.81(2), Fla....

...iff's recovery, and in view of the statute's express provision of the measure by which to reduce a negligent claimant's award, we conclude that subsection three should not be applied to bar Mrs. Marin's recovery. The trial court properly interpreted section 768.81(3)....

...t The Tort Reform and Insurance Act of 1986, chapter 86-160, Laws of Florida, abrogated the rule of Stuart v. Hertz , i.e., that an initial tortfeasor is liable for subsequent medical malpractice, which forms the basis for the *1149 Mosley decision. Section 768.81(3), Florida Statutes (2001), provides in relevant part that "the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability....

...4th DCA 2015), we recently held that a de novo standard applies to this issue. Applying that standard, we held that whether conduct in the context of a tobacco action is considered negligent or intentional, comparative negli *767 gence applies. See Schoeff, 178 So.3d at 496 . Sections 768.81(2) and (4), Florida Statutes (1992), 4 provide, in part, that in “negligence cases,” the claimant’s contributory fault “diminishes proportionately the amount awarded as economic and noneco-nomic damages for an injury attributable to the claimant’s contributory .fault,” however, it does not prevent recovery. § 768.81(2), (4), Fla....

...The term “negligence cases” “includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.” Id. § 768.81(4)(a)....

...In deciding whether a case constitutes a “negligence case,” courts must examine “the substance of the action and not the conclusóry terms used by the parties.” Id. If the action is based upon an intentional tort, compensatory damages cannot be reduced by the plaintiffs. contributory fault. Id. § 768.81(4)(b)....

...to recover her full non-economic damages without regard to comparative fault as the jury was- advised. ■ The trial court failed, however, to look to the substance of the action to determine if the claims were grounded in negligence as required by section 768.81(4)(a)....

...ry judgment ruling. While our disposition of this issue renders further discussion of the underlying legal issue unessential, we write further to explain our view that ARC's legal argument lacks merit. The core of ARC's argument is that, by enacting section 768.81, Florida Statutes (1991), our legislature changed the well-established common law rule that "[t]he initial tortfeasor is subject to the total financial burden of the victim's injuries, including those directly attributable to a doctor's malpractice." Underwriters at Lloyds v....

...rtfeasors and not joint tortfeasors jointly and severally liable for one common injury. In our view, this is still good law and there is no support for ARC's position otherwise in either case law or ordinary reasoning. The legislature's enactment of section 768.81 was intended to abrogate the concept of joint and several liability for purposes of determining noneconomic damages caused by joint tortfeasors....

...The statute is designed to allocate the percentage of fault among those parties contributing to the accident which caused the plaintiff's initial injury. A fair reading of the statute implies that the language relating to professional malpractice in subsection 768.81(4)(a) refers to those situations *525 where two or more negligent professionals contribute, or act in concert with each other, to cause an initial injury....

...ed after the statute's 1991 enactment. For example, in Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), overruled on other grounds, Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995), our supreme court stated that "section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident....

...In that case, the court held that "Benchwarmers, as the initial tortfeasor, is subject to the total financial burden of [the plaintiff's] injuries, including those directly attributable to [the doctor's] subsequent malpractice." Id. at 1198. We interpret this language to mean that section 768.81 only applies to those parties who negligently contributed to the infliction of the plaintiff's initial injury, not to medical providers who subsequently aggravated the injury....

...Ironically, the original tortfeasor would be empowered, not only to decide whether a victim must sue his or her doctor, but also when that suit must be filed. These policy considerations are no less critical today than they were prior to the 1991 enactment of section 768.81....

...Finally, in Walt Disney World Co. v. Wood, 515 So.2d 198 (Fla.1987), the supreme court, after much discussion and by a close vote, elected to leave the decision on whether to change the law to the legislature. The legislature accepted the challenge and adopted section 768.81, Florida Statutes, entitled "Comparative fault." Subsection (3) of the statute provides that, "In cases in which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of...

...onsible only to the extent that plaintiffs damages can be attributed to their percentage of fault. Appellee herein concedes that had the healthcare workers sought to be added to the verdict form in this case been "jointly and severally liable," then section 768.81 (and Fabre v....

...[1] Suppose in our case, plaintiff had included the health care workers as additional defendants claiming all defendants contributed to cause the death of Nathan. Could not plaintiff have done so? If the health care workers had been joined with appellant herein as co-defendants, would the provision in section 768.81 limiting damages to the percentage of fault of each *528 be applicable? Should the applicability of section 768.81 be at the option of plaintiff? I see the policy adopted by the legislature as being broader than the single accident scenario accepted by the trial judge....

...City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980), has now rejected the notion that a negligent defendant cannot recover that portion of a judgment against him which he can show is attributable to the subsequent negligence of a doctor. And by enacting section 768.81, the legislature has determined that a single jury should decide the percentage of fault for each of those alleged to be responsible for appellee's damages....

...The underpinning of the concept of comparative negligence is that the court (the jury) has the ability to apportion damages in relation to plaintiff's injuries. See Walt Disney World Co. v. Wood, 515 So.2d 198, 202 (Fla.1987) (McDonald, C.J., dissenting). Even before the enactment of section 768.81, Lloyds recognized that "distinct and independent tortfeasors" should ultimately be responsible for only the damages caused by their acts of negligence if such damages can be reasonably determined....

...Should not the doctor be held to have contributed to the loss of future income as well as being responsible for disfigurement? Suppose the evidence excluded in this case would have shown that there is a 25% chance that the victim would have survived but for the negligent medical care. Under section 768.81, should the defendant herein pay 100% of the damages? Explain your answer. The legislature has, by adopting section 768.81, clearly stated a public policy of holding one responsible only for the proportionate share of the damages resulting from his degree of fault. That is the real message of section 768.81. We should not look for loopholes in order to avoid applying this public policy. But even if we do hold that the public policy set out in section 768.81 applies only to those defendants who are jointly and severally liable, and even if we assume that such a statute is necessary to preclude holding one liable for damages caused by subsequent injuries inflicted by another's negligence (and I do not), still section 768.81 would apply in this case....

...negligent defendant is liable for all damages suffered by plaintiff because he placed the plaintiff "at risk" of medical malpractice, the health care workers are liable only for the injuries caused by their malpractice [2] ), they would be, but for section 768.81, jointly and severally liable for the injuries caused by the health care workers —the health care workers because of traditional negligence law and the negligent defendant because the law assumes that his negligent action was the proximate cause of the injury caused by the malpractice....

...e water in 15 seconds than one without a seizure swallows in five minutes? I do not pretend to know the answer but, I submit, inquiring minds should want to know. In my view, the defendant should have been given the opportunity to show, under either section 768.81 or under the holdings of Gross and Washewich, if it could, that negligence of others contributed to Nathan's death....

...Since the others alleged to be negligent are not parties, there is no due process problem. At this limited new trial, defendant would have the burden of showing that designated others bear a percentage of fault for Nathan's death. See Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996). NOTES [1] Section 768.81, Florida Statutes (1991), provides, in relevant part: 768.81....

...$11,917,000 in economic damages and $15,000,000 in non-economic damages. The trial court entered judgment against Foreline for the full amount of the verdict ($26,917,000) ruling that allocation *909 of damages for comparative negligence pursuant to section 768.81, Florida Statutes, did not apply....

...Appellee urges as a point of reversal in her cross-appeal that the trial court erred in permitting the jury to apportion noneconomic damages between negligent and intentional tortfeasors, [9] and, in so doing, it misconstrued the intent of the legislature in enacting section 768.81(3), Florida Statutes (1989), a portion of the comparative fault statute. As to this issue, I would also affirm. In allowing apportionment of damages, the trial court proceeded according to the provisions of section 768.81(3), which provides: (3) APPORTIONMENT OF DAMAGES....

...al liability. (Emphasis added.) Although McGhee concedes that no Florida decision has as yet decided whether the above subsection authorizes apportionment of fault between both negligent and intentional defendants in the same action, she relies upon section 768.81(4) as an indication that the legislature intended to exclude intentional tortfeasors from the ambit of the comparative fault statute. Section 768.81(4)(a) and (b) explain: (a) This section applies to negligence cases [,] .....

...the jury should consider the percentages of fault of all tortfeasors in reaching its verdict on damages. Due to the non-negligent nature of the inmates' acts, McGhee now contends that DOC's claim for apportionment must be barred by the provisions of section 768.81(4)(b), excluding from its operation any action based upon an intentional tort....

...e third party. Id. at 606. Accord Bach v. Florida R/S, Inc., 838 F. Supp. 559 (M.D. Fla. 1993); Doe v. Pizza Hut of Am., Inc., No. 93-709 (M.D.Fla. June 21, 1994). The Academy of Florida Trial Lawyers joins McGhee in urging reversal, contending that section 768.81 only abrogates joint and several liability to the extent it would otherwise apply under common law....

...Thus, a defendant could not reduce his or her liability by pointing to wrongdoing (negligent or intentional) which occurred in a separate transaction, and he or she could not seek contribution except from a joint tortfeasor. See § 768.31(2)(a) & (c), Fla. Stat. (1989). Consequently, it is the Academy's position that because section 768.81 allows apportionment in cases involving joint tortfeasors, but says nothing about non-joint tortfeasors, it does not alter the common law rule prohibiting contribution among non-joint tortfeasors....

...After considering the arguments by counsel and the authorities cited, I would affirm as to this issue. It is clear that plaintiff's action against the DOC was based on negligence, and the comparative fault statute specifically applies to actions for negligence. § 768.81(4), Fla....

...sors, because it distributes the loss according to the respective faults of the parties causing the loss. Id. at 231. The reasoning of the court's opinion in Blazovic appears to me to be consistent with the Florida courts' general interpretations of section 768.81 in that the statute clearly requires a jury's consideration of each individual's fault contributing to an injured person's damages, even if such person is not or cannot be a party to the lawsuit....

...orida’s comparative negligence law should have precluded HDR from introducing its evidence against Barnard. Florida’s comparative negligence law renders a party liable only for the share of total damages proportional to its fault. Fla. Stat. § 768.81(3)....

...They also found that Messmer suffered $52,455 in economic damages and $200,000 in non-economic damages. Arthur died shortly after the accident and neither he nor his estate were parties to the arbitration or litigation. The trial court ruled that pursuant to section 768.81(3), Florida Statutes (1987), Teacher's fully satisfied its (or Waldron's) liability to Messmer....

...any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. Messmer argues that section 768.81(3) requires apportionment for noneconomic damages only as to the actual parties to the litigation or arbitration....

...She urges that in a case such as this, where Arthur could not have been held liable because of spousal immunity, [1] the joint tortfeasor who is a party should be held liable for the entire amount of the plaintiff's damages. Judge McNeal concluded that a proper interpretation of section 768.81(3) militates against Messmer's position in this case. We agree, and adopt his opinion as follows: Section 768.81(3) provides that the court shall enter judgment against `each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.' The court is of the opinion that the lang...

...Florida Public Service Comm., 220 So.2d 905 (Fla. 1969). In light of the policies adopted in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973) and Lincenberg v. Issen, 318 So.2d 386 (Fla. 1975), this court is of the opinion that the legislative intent in adopting § 768.81(3) was to implement a system of equating fault with liability, at least as to non-economic damages....

...c. This becomes the equivalent of joint and several liability, which the legislature obviously was intending to eliminate. The supreme court's recent opinion in Conley v. Boyle Drug Company, 570 So.2d 275 (Fla. 1990), supports this interpretation of section 768.81(3)....

...That is, no defendant will be held liable for more harm that it statistically could have caused in the respective market. Second, the court noted that joint and several liability is only favored within this state in specific limited situations set forth in section 768.81....

...everal liability into a market share theory of liability would be contrary to the policy of this state. 570 So.2d at 284-285. The market share theory of liability appears to be based on the same premise as the apportionment of noneconomic damages in section 768.81(3), that is, apportionment according to fault rather than liability for the total amount of the plaintiff's damages....

...Reynolds Metals Co., 760 So.2d 199, 202 (Fla. 2d DCA 2000) ("[W]here a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81, Florida Statutes (1997)....

...favor of Philadelphia Indemnity Insurance Company (Philadelphia Indemnity) and $4,415.31 in favor of D & H Distributing Corporation (D & H). Philadelphia Indemnity and D & H cross-appeal the trial court's application of the comparative fault statute section 768.81, Florida Statutes (2000), and the trial court's failure to award interest from the date of the *363 theft which resulted in the loss....

...curring and it cannot matter that the incident in question was the first one. We now turn our attention to the cross-appeal. In its cross-appeal, Philadelphia Indemnity asserts that the trial court improperly ruled that the comparative fault statute section 768.81 applies to the action and then further compounded the error by misapplying the joint liability provisions of the statute....

...and Parkway Commerce Center had previously been voluntarily dismissed by Philadelphia Indemnity and D & H. However, each was placed on the verdict form as Fabre [1] defendants. Florida law allows Burns and defendants in similar negligence actions to apportion fault between themselves and negligent non-parties. See Fla. Stat. § 768.81 (2001); Fabre v....

...Philadelphia Indemnity misunderstands Fabre and its progeny as well as Florida's comparative fault statute. Under its view, a defendant in a negligent security case would never be able to apportion liability with other negligent parties (and non-parties). This interpretation is inconsistent with Section 768.81, which the trial court properly applied in this case....

...D & H's loss, the action against Burns is not based upon an intentional tort but instead is based on the negligent manner in which Burns conducted its security responsibilities. Philadelphia Indemnity cites to no case in this state which holds that Section 768.81, Florida Statutes, does not apply to cases in which the theory of recovery is negligence. In the instant case, it is the negligent tortfeasors who are being held liable and there is no attempt to apportion damages based upon the intentional criminal conduct of the perpetrator of the theft. Having concluded that § 768.81 applies to this action, we must address Philadelphia Indemnity's assertion that the trial judge miscalculated the amount of damages under § 768.81(3)(a)....

...Therefore, Philadelphia Indemnity and D & H are entitled to recover $668,117.98. Pursuant to *367 subsection (3), joint and several liability does apply in this case allowing a recovery of all stipulated damages minus a 13% deduction for comparative negligence. Subsection (3) of § 768.81 provides: (3) APPORTIONMENT OF DAMAGES.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and sev...

...subparagraph 3., ... the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and noneconomic damages already apportioned to that defendant based on that defendant's percentage of fault. § 768.81(3) (emphasis added)....

...h represents the balance of damages for which potential joint liability applies. The statute caps a defendant's joint and several liability at $500,000 where the defendant is found to be at least 25 percent but not more than 50 percent at fault. See § 768.81(3)(a)(3)....

...tiff shall not recover such special damages for personal injury protection benefits paid or payable. (Emphasis added.) Thus, section 627.736(3) dictates that an insured plaintiff has "no right to recover" damages paid or payable by PIP benefits. [4] Section 768.81(2), Florida Statutes (2003), addresses comparative negligence and provides: (2) EFFECT OF CONTRIBUTORY FAULT....

...— In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery. (Emphasis added.) A plain reading of section 768.81(2) is that "the amount awarded as economic and noneconomic damages" to the plaintiff is what is to be reduced by the percentage of the plaintiff's comparative fault....

...when there was insufficient evidence of negligence. We affirm on all issues raised in this appeal. The first issue that Grace and Owens-Corning raise is the trial court's failure to permit the jury to have instructions and a verdict form pursuant to section 768.81, Florida Statutes (1991) and Fabre v....

...n a job site and the likelihood of injury from each of the products. Without that evidence, Grace and Owens-Corning have not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre....

...Corp., 724 So.2d 1218, 1219 (Fla. 5th DCA 1998)." Kimball v. Publix Super Markets, Inc., 901 So.2d 293, 296 (Fla. 2d DCA 2005). There is no claim either that Kay's abused the amendment privilege or that amendment would be futile. To the contrary, amendment was essential. See § 768.81(3)(d), Fla....

...5th DCA 2005) (citation omitted) (explaining " Fabre defendants are non-parties which are alleged by a party defendant to be wholly or partially negligent and should be placed on the verdict form so there can be an apportionment of fault against them for non-economic damages"). [2] Section 768.81(3)(d) of the Florida Statutes requires a defendant seeking to impute fault to a negligent non-party to plead such a defense. § 768.81(3)(d), Fla....

...See Note, Modification of the Doctrine of Joint and Several Liability: Who Bears the Risk?, 11 Nova L.J. 165 (Fall 1986). In 1986 the legislature substantially modified the doctrine of joint and several liability as part of its comprehensive tort reform law. § 768.81, Fla....

...Section 768.31 does not prevent a change in the doctrine of joint and several liability or when it is to be applied. Moreover, I find no other statutory enactment preventing this Court from reconsidering the application of the doctrine to causes of action arising prior to July 1, 1986. Although I recognize that section 768.81, Florida Statutes (Supp....

...76-186, § 1, Laws of Fla. The statute now provides that contribution is to be based on relative degrees of fault. § 768.31(3)(a), Fla. Stat. (1985). Because the instant cause of action arose in 1971, however, this amendment is inapplicable to the instant case. [2] § 768.81 Fla....

...— Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions in which the total amount of damages does not exceed $25,000. § 768.71(2), Fla. Stat. (Supp. 1986), provides, inter alia, that §§ 768.71 — 768.81 apply only to causes of action arising on or after July 1, 1986....

...da Trial Lawyers, Amicus Curiae. PER CURIAM. We have for review Godales v. Y.H. Investments, Inc., 667 So.2d 871 (Fla. 3d DCA 1996). We accepted jurisdiction to answer the following question which was certified to be of great public importance: DOES SECTION 768.81, FLORIDA STATUTES (1993), REQUIRE THAT A MINOR CHILD PLAINTIFF'S AWARD BE REDUCED BY THE NEGLIGENCE OF A NON-PARTY PARENT OR GUARDIAN, AND TO THE BENEFIT OF THE DEFENDANT TORTFEASOR? 667 So.2d at 873....

...We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons expressed below, we rephrase the question and, as rephrased, answer the question in the affirmative and quash the decision under review. We rephrase the question as follows: DOES SECTION 768.81, FLORIDA STATUTES (1993), PERMIT THE CONSIDERATION OF THE NEGLIGENCE OF A NON-PARTY PARENT OR GUARDIAN IN DETERMINING THE CAUSE OF A MINOR'S INJURY IN A NEGLIGENCE ACTION AGAINST A THIRD PARTY TORTFEASOR? MATERIAL FACTS Two-year old Ar...

...and Godales, with interrogatories to determine the percentage of any negligence attributable to them. The jury returned a verdict finding Y.H. and Godales each to be fifty percent negligent in causing the accident and awarding Armando $42,500 in damages for pain and suffering. Accordingly, pursuant to the provisions of section 768.81, Florida Statutes (1993), the trial court entered a final judgment against Y.H....

...damages from Y.H. Godales, 667 So.2d at *1275 873. [2] The district court also certified the question referred to above. LAW AND ANALYSIS This case presents us with a straightforward issue concerning the application of the comparative fault statute, section 768.81(3), Florida Statutes (1993)....

...by judicial action. Id. at 200, 202. Indeed, following the district court decision in Walt Disney World Co. v. Wood, 489 So.2d 61 (Fla. 4th DCA 1986), approved, 515 So.2d 198 (Fla.1987), the Florida legislature did enact a comparative fault statute, section 768.81, Florida Statutes (Supp.1986), that squarely directed that any judgment against a defendant be based on the defendant's percentage of fault in causing any damage and not on joint and several liability. [8] Section 768.81(3) provides: In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provide...

...ent with respect to economic damages against that party on the basis of the doctrine of joint and several liability. (Emphasis added.) Hence, the legislature, in essence, acted to do what we declined to do in Walt Disney World Co. v. Wood. [9] Under section 768.81 defendants like Walt Disney would no longer have to pay damages in excess of the amount their conduct actually caused....

...damages, i.e., pain and suffering, while retaining such liability in clause two for economic damages [10] for "any party whose percentage of fault equals or exceeds that of a particular claimant," albeit with several other enumerated exceptions. See § 768.81(4)(b), (5), Fla. Stat. (1993). In August of 1993, we applied section 768.81 in two cases: Fabre v....

...Marin each fifty percent at fault, the court entered judgment against Mrs. Fabre for the entire $350,000 award of noneconomic damages. Id. On appeal, the Third District upheld the judgment. We quashed the Third District's decision, stating that "we believe that the legislature [by the enactment of 768.81] intended that damages be apportioned among all participants to the accident" id....

...Allied-Signal, 623 So.2d at 1182. The gist of the decisions in Fabre and Allied-Signal was our holding that the legislature intended that a judgment against a particular tortfeasor be based on "such party's percentage of fault" in causing the claimant's damages. Hence, under section 768.81, a tortfeasor who is determined to have been only ten percent at fault in causing an injury will only be liable for ten percent of the damages....

...[12] It appears to be based upon the same considerations of fairness that were responsible for our decision in Hoffman that claimants have their damages reduced only by their percentage of fault. THIS CASE As noted previously, this case presents a straightforward application of section 768.81(3), much like our application of the statute in Fabre and Allied-Signal....

...However, including Godales' name on the verdict form is consistent with Fabre and Allied-Signal wherein we approved similar inclusions for jury consideration despite interspousal and employer/employee *1278 immunity, respectively. Our decision today simply applies section 768.81 in the parent/child context just like it was applied in the husband/wife context in Fabre. Godales' negligence is not "imputed" to her child any more than Mr. Marin's negligence was "imputed" to his wife. Rather, section 768.81 provides that Y.H....

...does this fault apportionment reduce or preclude the child's recovery of damages; rather, the child is entitled to a judgment for damages against the non-parent tortfeasor "on the basis of such party's percentage of fault", as expressly provided in section 768.81. Since there is no dispute about the jury's determination that Y.H. was only fifty percent at fault in causing Armando's injuries, any judgment against Y.H. must be entered, under section 768.81, for fifty percent of Armando's damages....

...OVERTON, GRIMES, HARDING and ANSTEAD, JJ., concur. WELLS, J., dissents with an opinion, in which KOGAN, C.J., concurs. SHAW, J., dissents. WELLS, Judge., dissenting. The majority's reversal of the district court's decision writes into Florida law an unforeseen consequence of section 768.81, Florida Statutes (1995), which is brought about by this Court's construction of that statute in Fabre v....

...They contend that since nonparent defendants would have to pay for more than their percentage of fault if juries did not evaluate parental fault *1279 and assess such fault on their verdict forms, any other consideration would fall in deference to this interpretation of section 768.81....

...sk to a child by having the child's damages reduced by the percentage of fault of the parent. This is a significant and detrimental retreat from Florida's long-recognized protection for children. The second argument advanced by the appellant is that section 768.81 and Fabre, as clarified in Wells v....

...The lengthy course of litigation included an initial trial, an appeal to the Fourth District which reversed and remanded the case, a re-trial, another appeal, and finally, review by this Court. [8] The Fourth District's decision in Disney was rendered on April 9, 1986. Section 768.81 only applies to "causes of action arising on or after July 1, 1986, and does not apply to any cause of action arising before that date." Section 768.71(2), Fla.Stat....

...[9] While not directly evaluating the statute, we did acknowledge its passage in our Disney decision by noting that: In 1986 the legislature substantially modified the doctrine of joint and several liability as part of its comprehensive tort reform law. § 768.81, Fla.Stat....

...Marin could not sue her husband because of the doctrine of interspousal immunity. Subsequently, we abolished that doctrine in Waite v. Waite, 618 So.2d 1360 (Fla.1993). [12] The parties acknowledge that this issue has been repeatedly debated in the legislature in recent years, but the legislature has taken no action to amend section 768.81....

...t liability, negligence and breach of warranty claims, on claims of prejudicial conduct by French's counsel, and sought alternatively, a remittitur of the verdict. Finally, the defendants also argued that the jury should have apportioned fault under section 768.81, Florida Statute....

...[2] Because we are ordering a new damages trial, we must address the issue of whether it was error to permit the jury to apportion fault between the negligent actor, Alamo, and the nonparty intentional tortfeasor, Aaron. The question presented involves an interpretation of section 768.81, Florida Statutes (1993)....

...David de Armas & Edward L. White III, Apportioning Fault Between the Negligent and Intentional Tortfeasor, Fla. B.J., Oct. 1995, at 92 (noting that "Judge Ervin's position is consistent with the principle that liability equates fault, which is the backbone of § 768.81")....

...Based on this analysis we conclude that the trial court did not err in allowing the jury to apportion fault between the negligent and intentional tortfeasors. [5] To Judge Ervin's dissent, we add only the following observations. Because the legislature undoubtedly had the power to enact section 768.81 it is this court's duty to give effect to the legislature's intent in enacting the statute. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). Where that intent is clear from the language used in the statute, the court need not look any further. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The unmistakable intent of 768.81(3) is to limit a negligent defendant's liability to his percentage of fault....

...Fast Food Enters., 671 So.2d 255 (Fla. 4th DCA 1996). It simply fails to give effect to the previously discussed clear legislative intent to limit a negligent defendant's liability to its percentage of fault. Further, the argument that statutes, such as 768.81, which are in derogation of the common law should be strictly construed in favor of retaining the preexisting common law rule was indirectly addressed by the Supreme Court in Fabre v. Marin, 623 So.2d 1182 (Fla.1993), when the court noted that the act, of which section 768.81 is a part, "disfavors joint and several liability to such a degree that it survives only in those limited situations where it is expressly retained." This case clearly does not involve one of those "limited situations." Because the iss...

...3d DCA 1980) (brutal act of rapist/murderer did not insulate negligent landlord from liability for failure to provide adequate security). The Florida legislature partially abrogated the common law doctrine of joint and several *944 liability in 1993 when it adopted section 768.81(3), Florida Statutes (1993): In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of joint and several liability; provide...

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. Section 768.81(4)(a) then provides that "[t]his section applies to negligence cases." "Negligence cases" are defined as ... civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. § 768.81(4)(a). The Florida Supreme Court interpreted section 768.81 to require the fact-finder to consider and apportion the fault of all entities involved in an accident—even individuals who were not parties to the action and were immune from suit....

...In Fabre the individuals among whom fault was divided were all negligent joint tortfeasors. In this case, by contrast, the defendant, Alamo Rent-A-Car, seeks to reduce its liability for negligence by shifting a portion of its fault to a criminal who committed an intentional violent assault. However, section 768.81 does not permit Alamo to evade its liability to plaintiffs by comparing its negligence with the assailant's attack....

...The authors of the Restatement explain that "[t]o deny recovery because the other's exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity." Id. at comment (b). Section 768.81(4)(b), Florida Statutes, recognizes the difference between intentional torts and negligence and removes intentional torts altogether from the Fabre equation of fault with liability by specifically excluding cases that are "based upon an intentional tort." § 768.81(4)(b)....

...uctions with respect to permanent injury may have reasonably confused or misled the jury. Faulkner v. Allstate Ins. Co., 367 So.2d 214 (Fla.1979); Adkins v. Seaboard Coast Line R.R. Co., 351 So.2d 1088 (Fla. 2d DCA 1977). [3] The critical portion of section 768.81(3) provides: "In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." [4] Judge Ervin concurred in part and dissented in part from the majority opinion....

...the judgment against it. Since the corporation's liability for the accident was purely vicarious in nature for the acts of Neal himself, rather than joint and several, it is obvious, contrary to the ruling below, that the comparative fault statute, section 768.81, Florida Statutes (1995), Fabre v....

...e unfair to make a contractor bear 100% of the loss caused by a latent defect which the DOT, in its expertise, should have discovered. It is also arguably contrary to the legislature's intent when it abrogated joint and several liability by enacting section 768.81, Florida Statutes, making defendants responsible only for their own negligence and not the negligence of others. In upholding the constitutionality of section 768.81, our supreme court observed: Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of *615 the parties whose negligent conduct combined with the negligence of the other party to produce the loss....

...current negligence or an unforseeable intervening cause. Then, in a case such as this one, if the jury found the defect was latent, but that the DOT should have discovered it, it could apportion the responsibility just as the legislature intended in section 768.81.

...The trial court instructed the jury on the liability issue without using the word "intentional." The trial court then gave an instruction on comparative negligence and submitted to the jury a verdict form that allowed for a finding of comparative negligence. Such instruction was directly contrary to section 768.81(4)(b), Florida Statutes (1995), which provided that comparative negligence was not applicable in an intentional tort action, a principle which had long been the common law of Florida....

...On appeal Letzter challenges: (1) the trial court's decision to give the Stuart v. Hertz jury instruction; (2) the judge's failure to allow the jury to determine whether the two defendant doctors were joint tortfeasors; and (3) the trial judge's failure to apportion the non-economic damages award pursuant to section 768.81, Florida Statutes....

...nd that the error does not require a new trial in this case. Finally, we conclude that the trial judge erred in failing to apportion the non-economic damages award among Doctors Letzter and Armand in accordance with the jury's verdict as provided in section 768.81, Florida Statutes....

...r. Letzter and 55% Dr. Armand. After reviewing the verdict, the trial court refused to apportion the noneconomic portion of the damages award in accordance with the jury's assessment of fault, which is required in the case of joint tortfeasors under section 768.81, Florida Statutes....

...In so doing, the judge expressly ruled that Stuart v. Hertz applied to the case before him and refused to apportion the non-economic damages in accordance with the jury's allocation of fault. Dr. Letzter contends that this failure to apportion the non-economic damages was error. We agree. Section 768.81, Florida Statutes, requires the apportionment of the noneconomic damages portion of the judgment in cases involving joint tortfeasors. See § 768.81(3)-(4), Fla.Stat.; see also Beverly Enters.-Fla., Inc....

...Armand which was the legal cause of injury to Cephas since, under Stuart v. Hertz , Letzter would have been legally responsible for any injury caused by Armand's negligence. Thus, it was error for the trial judge to refuse to apportion the non-economic damages award pursuant to section 768.81....

...The Tort Reform and Insurance Act of 1986, Chapter 86-160, Laws of Florida, which "applies to any action for damages," provides that "the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." § 768.81(1), (3)....

...tortfeasors [4] , and adhere to Stuart, *489 there is no language in the legislation which limits its applicability to joint tortfeasors. The title of the Act, sections 768.71-81, is "Damages," and the provision specifically applicable in this case, section 768.81(3) is entitled "Apportionment of Damages." In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), the Florida Supreme Court was applying section 768.81(3) to a single accident and discussed the allocation of percentage of fault in terms of how a defendant "contributed to the accident." The statute, however, focuses on damages, not accidents, and does not distinguish between damages caused by joint tortfeasors or, as in this case, separate tortfeasors....

...2000), the plaintiff was involved in two automobile accidents three months apart, and sued only the tortfeasor causing the first accident. The Florida Supreme Court held that if the damages could not be apportioned between the two accidents, then the damages did not have to be apportioned under section 768.81(3)....

...Prior to trial, however, final judgment was entered in favor of Glades Hospital on the counts pertaining to it. [3] Cephas has cross appealed, contending that he was entitled to a directed verdict in his favor on the affirmative defenses raised by Dr. Letzter under section 768.81(3) because that statute is unconstitutional-both as enacted and as interpreted by the supreme court in Fabre....

...At the hearing that followed, Allstate also argued that the unauthorized settlement prejudiced its subrogation rights with respect to Ms. Buchholz because the Rushes executed a general release in her and GEICO's favor. The Rushes, relying on Florida Statutes, section 768.81 (1993), countered that had Ms....

...Following this amendment, the court upset the mix when it issued Fabre v. Marin, 623 So.2d 1182 (Fla.1993) and Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). Fabre involved the interpretation of the Tort Reform Act, section 768.81(3), Florida Statutes (Supp.1988), which provided, in pertinent part: (3) Apportionment of damages.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentag...

...Instead, we conclude that where a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81, Florida Statutes (1997)....

...do not address the issue of the joint and several liability of the driver and the passenger, see, e.g., Vetter v. Morgan, 22 Kan. App.2d 1, 913 P.2d 1200, 1205-06 (1995); Cooper v. Bondoni, 841 P.2d 608, 611-12 (Okl. App.1992), or the application of section 768.81, Florida Statutes (2002), to this action....

...igation.” Black’s Law Dictionary 998 (9th ed. 2009). To be sure, Florida law provides that “[i]n a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault.” Fla. Stat. § 768.81(3)....

...Marin, 597 So.2d 883 (Fla. 3d DCA 1992), based upon its certified conflict with Messmer v. Teacher's Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991), review denied, 598 So.2d 77 (Fla. 1992). The supreme court quashed the district court's opinion and held that section 768.81(3), Florida Statutes (Supp....

...This view is based on the belief, as outlined in West, that fairness and good reason require that the fault of the defendant and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is a cause in fact and a proximate cause. See § 768.81, Fla....

...At common law, under the doctrine of joint and several liability, all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. Gouty v. Schnepel, 795 So.2d 959 (Fla.2001). In 1986, the Legislature enacted section 768.81, the comparative fault statute....

...feasors. Instead of each defendant being severally responsible for all of the plaintiffs' damages, with limited exceptions, the defendant is responsible only for the percentage of fault determined by the jury. Gouty. In 1999, the Legislature amended section 768.81 to provide joint and several liability for economic damages based on a sliding scale, depending on whether the plaintiff was with or without fault and the percentage of fault of the defendant....

...The amendment made a defendant less than 10% at fault not subject to joint and several liability, regardless of whether the plaintiff had some fault or not. Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002). However, this court has held the 1999 amendment to section 768.81 is prospective only and may not be applied retroactively to causes of action accruing prior to its effective date. Basel. The 1997 version of section 768.81, in effect at the time of the accident in this case, apportioned damages as follows: (3) Apportionment of damages....

...GRIMES, Justice. Pursuant to section 25.031, Florida Statutes (1987), and Florida Rule of Appellate Procedure 9.150, the United States Court of Appeals for the Eleventh Circuit has certified to this Court a question concerning the interpretation of section 768.81(3), Florida Statutes (1989)....

...serviced with a safety screen, and in failing to warn of the fan's suction. The trial court denied Allied's request to allow the jury to consider and assess non-party Eastern's percentage of fault, if any, under Florida's Tort Reform Act, Fla. Stat. § 768.81 (1989)....

...Fox was awarded a total amount of $350,000.00 in damages. Thus, the amended final judgment was $245,000.00. The *1182 district court denied Allied's motion for a new trial. Fox, 966 F.2d at 626-27. The court phrased the question for certification as follows: WHETHER THE INTERPRETATION OF FLA. STAT. § 768.81(3) (1989) REQUIRES CONSIDERATION BY THE JURY OF A NON-PARTY'S COMPARATIVE FAULT IN ORDER TO DETERMINE A PARTY'S LIABILITY? Id....

...1992), and Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992). On the authority of our decision in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), we answer the certified question in the affirmative. In Fabre we adopted the rationale of Messmer, holding that section 768.81(3), Florida Statutes (1989), requires that liability be apportioned to all participants in an accident in order to determine a defendant's percentage of fault....

...Marin, 623 So.2d 1182, 1186 (Fla.1993) (“Liability is to be determined on the basis of the percentage of fault of each participant to the accident and not on the basis of solvency or amenability to suit of other potential defendants.”); see also § 768.81(3)(a), Fla....

...e fault of each party. Id. Following our opinion in Hoffman , the Florida Legislature in 1986 codified the Court’s adoption of a system of comparative negligence, and its concomitant abol-ishment of the rule of contributory negligence, by enacting section 768.81(l)-(5), Florida Statutes (1986 supp.) (Comparative fault). See ch. 86-160, § 60, at 755-56, Laws of Fla. On the date of the accident here, and at the time of the entry of final summary judgment against the plaintiff, 10 section 768.81(2) & (3), Florida Statutes (2006) (Comparative fault), read as follows: (2) EFFECT OF CONTRIBUTORY FAULT....

...(3) APPORTIONMENT OF DAMAGES. — In cases to which this section applies [negligence cases], the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability. § 768.81(2),(3), Fla....

...lemented for the express purpose of allowing recovery in negligence cases based on a jury’s allocation of comparative fault — on a percentage basis— among all individuals who were negligent in bringing about an injury. Under the clear terms of section 768.81(4)(a), Florida Statutes (2006), this substantive means of tort recovery applies to “negligence cases,” a broad class of cases that, as defined by statute, in no way excludes those negligence eases arising from rear-end motor vehicle collisions....

..., the plain and unambiguous language of section 768(2), Florida Statutes (2006), provides that a plaintiffs contributory fault in a negligence action “does not bar recovery,” but rather diminishes proportionately the amount of his recovery. See § 768.81(2), Fla. Stat. Regardless of whether an injury is caused by the fault of a front driver, a rear driver, or both, the dictates of section 768.81(3), Florida Statutes (2006), entitle a plaintiff to judgment “against each” liable party, on the basis of that party’s “percentage of fault.” See § 768.81(3), Fla....

...mparative negligence. 14 Under Florida’s system of comparative negligence, recovery is to be allocated by the proportionate fault of all individuals whose negligence contributed to the injury, whether or not said individuals have filed claims. See § 768.81(2), (3), Fla....

...instructions they have sworn to followf.j”) (internal citations omitted). Accordingly, an allowance for the reduction of a plaintiff’s recovery based on comparative negligence serves a beneficial purpose for defendants as well. . The wording of section 768.81(2)-(3), amended as of June 23, 2011, after the filing of the initial brief here, is slightly altered from, but does not change the relevant substance of, the provisions in effect for this case. See ch.2011-215, § 1 at 3318, Laws of Fla.; § 768.81(2), (3), Fla. Stat. (2012). 11. See § 768.81(4)(a), Fla....

...In determining whether a *358 case falls within the term “negligence cases,” the court shall look to the substance of the action and not the conclusory terms used by the parties. Id. The current statutory definition of "negligence action” is located in section 768.81(l)(c), Florida Statutes (2012), and is as broad as the definition relevant here....

...Similarly under the reasoning expressed by the court in Cevallos, a comparatively negligent front driver would apparently be insulated or shielded from liability to his passengers and those in the rearward zone of danger regardless of the presence of comparative negligence on the part of the front driver. Nevertheless, both section 768.81(2),(3) and this Court’s holding in Hoffman command a different result....

...Hess cross appeals the trial court’s final judgment to the extent it reduced the compensatory damages award based on the comparative fault of the decedent Mr. Hess. She argues that the substance of her action was the intentional tort of fraudulent concealment, precluding application of the comparative fault statute. See § 768.81(3)-(4), Fla....

...tellases argued that it was error to permit a nonparty intentional tortfeasor's name (the assailant) to appear on the verdict form so that the jury could apportion fault between the assailant and the negligent tortfeasor (Alamo). The court looked to section 768.81, Florida Statutes (1993), which abrogated joint and several liability as to noneconomic damages and requires courts to apportion liability in accord with percent of fault of each party....

...4th DCA), review dismissed, 679 So.2d 773 (1996), which reached the opposite conclusion. We approved the reasoning of the Slawson court and decided this exact issue in Merrill Crossings Associates v. McDonald, No. 88,324, ___ So.2d ___, 1997 WL 746290 (Fla. Dec. 4, 1997), where we held that section 768.81 does not apply to this type of action....

...d/b/a Mercy Hospital appeal from an amended final judgment entered after a jury trial in a medical malpractice action. [1] The issue we write to address is whether Grobman and Mercy Hospital, non-settling defendants, are entitled to a full setoff for sums paid by a settling defendant prior to trial. Because section 768.81, Florida Statutes (1995), did not apply to the causes of action asserted against the settling defendant, we hold that appellants are entitled to a setoff of the full amount paid in settlement....

...The trial court denied the motions on the ground that the defendants' failure to have the jury decide whether Prudential was liable precluded their ability to claim a setoff. Appellants' entitlement to a setoff turns on whether Prudential was a party defendant to which the apportionment requirement of section 768.81(3), Florida Statutes (1995) [5] applied. If section 768.81(3) did not apply, then Prudential was not a proper Fabre defendant, and the failure to include it on the verdict form had no legal effect....

...or sums paid before trial to the plaintiff by a settling defendant. See D'Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003); Gouty v. Schnepel, 795 So.2d 959 (Fla.2001); Wells, 659 So.2d at 253. All three cases attempt to reconcile the requirement of section 768.81(3) that "each defendant is solely responsible for his or her share of noneconomic damages," Wells, 659 So.2d at 252, with the setoff provisions of 768.041(2), 46.015(2), and 768.31(5), Florida Statutes (1995)....

...ed to file appropriate pleadings and to ensure that any settling party under Fabre appears on the verdict form." D'Angelo, 28 Fla. L. Weekly at S842. The key question is whether the holding in D'Angelo applies to this case. Crucial to the trilogy of section 768.81 settlement cases is the assumption that section 768.81(3) applies to the claim against the settling defendant. In cases to which it applies, section 768.81 "eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages." D'Angelo, 863 So.2d at 314. Section 768.81 "applies to negligence cases, including professional malpractice cases." Id.; see § 768.81(4), Fla. Stat. (1995). Where section 768.81 applies, it limits the scope of the statutes regarding setoffs—sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes (1995). See D'Angelo, 863 So.2d at 314. To decide whether section 768.81 applies requires more than determining whether the case at hand is a negligence case. One must examine the cause of action asserted against a settling defendant to determine if section 768.81 requires apportionment of liability with another defendant. Such an inquiry asks if the settling defendant was the type of defendant that could have been added as a Fabre defendant on the verdict form. In Fabre, the supreme court wrote that "section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident." 623 So.2d at 1185 (emphasis added)....

...Under the doctrine of joint and several liability, "all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident." Id. at 1184. The impetus for enacting section 768.81 was the perceived unfairness of "requiring a defendant to pay more than his or her percentage of fault." Id. at 1185. Section 768.81 requires apportionment of non-economic damages "in cases involving joint tortfeasors." Letzter v....

...a single, indivisible injury, then such persons are jointly and severally liable although there was no common duty, common design or concerted action. Id. at 38 (emphasis in original). Central to the concept of joint and several liability covered by section 768.81 is the idea that a potential defendant caused or contributed to a plaintiff's injury, that a defendant's negligence "concurred" with that of another defendant to produce an injury....

...The vicariously liable party is responsible to the plaintiff to the same extent as the primary actor; both are jointly liable for all of the harm that the primary actor has caused. In such a situation, fault cannot be divided into the percentages contemplated by section 768.81. Also, the vicariously liable party has engaged in no wrongful conduct. Thus, there can be no "fault" within the meaning of section 768.81(3). The basis for imposing liability is that party's relationship with the negligent tortfeasor. The supreme court has expressly recognized that apportionment of fault under section 768.81 is not appropriate where a defendant's liability is only vicarious. In Nash, 678 So.2d at 1263-64, the supreme court established "the procedure for apportioning the fault [under section 768.81] of a person or entity not joined as a defendant in the suit." D'Angelo, 863 So.2d at 315....

...Reynolds Metals Co., 760 So.2d 199, 203 (Fla. 2d DCA 2000) (stating that a defendant "could not be a Fabre defendant" because it was only "vicariously liable without personal fault"); J.R. Brooks & Son, Inc. v. Quiroz, 707 So.2d 861, 863 (Fla. 3d DCA 1998) (holding that section 768.81 did not apply to a defendant whose fault was purely vicarious). For these reasons, the vicarious liability theory of recovery asserted against Prudential did not trigger the application of section 768.81....

...cause of action unless the directly liable tortfeasor commits a tort and (2) the derivatively liable party is liable for all of the harm that such a tortfeasor has caused. Given the similarity between derivative and vicarious liability, we hold that section 768.81 does not require the apportionment of responsibility between a defendant whose liability is derivative and the directly liable negligent tortfeasor....

...The installer was never identified and was not a party to the lawsuit. One of the questions on appeal was whether the trial court erred in excluding the anonymous independent contractor from the verdict form, so that the jury could allocate fault pursuant to section 768.81. Id. at 347. Comparing the case to one of vicarious liability, we held that the trial court correctly excluded the independent contractor from the verdict form because section 768.81 did not apply: Here, because [the defendant] negligently hired the "phantom" contractor, she is liable for his negligence to the same extent as if she had done the work herself....

...Liability for damages may not be apportioned to a nonparty defendant where that liability is vicarious in nature. Suarez, 820 So.2d at 347. [7] *1237 The negligent credentialing cause of action in this case is one of derivative liability like the negligent hiring theory of recovery in Suarez. In neither case does section 768.81 require apportionment of liability between the derivatively liable defendant and the directly liable negligent tortfeasor. Thus, Prudential was not a proper Fabre defendant to be placed on the verdict form under this theory of liability. Because neither the vicarious nor the derivative claim against Prudential was subject to apportionment under section 768.81(3), the trilogy of section 768.81 settlement cases ending with D'Angelo does not control. Instead, the setoff issue is governed by sections 46.015 and 768.041, Florida Statutes (1995), which require a complete setoff as to amounts received from Prudential. See Quiroz, 707 So.2d at 863. This result finds support in a case holding section 768.81 to be inapplicable in a similar context....

...y failed to take corrective action in the form of investigation, restriction or removal from list of providers" after Prudential "became aware of" the defendants' "unfitness to serve as ... health care providers to members of the Plan." [5] Although section 768.81(3) was amended in 1999, the "applicable version is that which was in effect when the cause of action arose." D'Angelo v....

...that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. § 768.81(3), Fla. Stat. (1995). [6] In a case involving the negligent failure to employ reasonable security measures, the supreme court adopted similar reasoning in describing the public policy as to why section 768.81 does not require apportionment of liability between the negligent tortfeasor and the intentional, criminal, non-party tortfeasor....

...plaintiffs, Mr. and Mrs. Fassnacht, whose car collided with a train owned by the defendant, Seminole Gulf Railway, Limited Partnership [Seminole]. Seminole appeals the trial court's refusal to enter judgment in favor of Mrs. Fassnacht in accord with section 768.81, Florida Statutes (1989)....

...hts experienced were not entirely related to this accident or that the damages were less extensive than the Fassnachts believed. We find no abuse of discretion in the trial court's denial of their motion and thus affirm the cross-appeal. Pursuant to section 768.81(3), Florida Statutes (1989), [3] Seminole moved to have Mrs....

...Marin, 623 So.2d 1182 (Fla. 1993), does support the relief granted by the majority in this case, I do not believe the issue was adequately preserved by the defendant in the trial court. The record does not reflect that the defendant asked for relief under section 768.81 until after the jury returned its verdict. In my opinion, a defendant should raise section 768.81 as an affirmative defense, just as defendants have always raised contributory or comparative negligence. A defendant should request jury instructions on this issue similar to the standard instructions for comparative negligence. See Fla. Std. Jury Instruction 6.1(c). If a defendant wants the benefit of section 768.81, the jury should be told about the effect that statute will have on its verdict, just as it is told about the effect of traditional comparative negligence. In this case, the jury awarded Mrs. Fassnacht a total of $35,000. All of her economic losses were protected by collateral sources. Accordingly, the majority's opinion will cause *145 her to receive a net recovery of $17,500. [4] Section 768.81 does not apply to cases in which the damages are $25,000 or less....

...But I see no reason to give the defendant the benefit of jury instructions that it never requested. Cf. W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746 (Fla. 2d DCA 1994) (holding trial court did not err in refusing to give instruction and verdict form under section 768.81 where defendant failed to present sufficient evidence to support this defense)....

...Finally, the Defendant suggests that Florida's apportionment statute precludes the entry of partial summary judgment against it, since a jury must be allowed to determine the relative fault of American Airlines when compared to the fault, if any, of Jeppesen, Honeywell and the Colombian ATC's. Section 768.81(3) of the Florida Statutes essentially provides that judgment may be entered against a tortfeasor whose acts proximately caused the plaintiff's injuries only in an amount that reflects the extent to which the defendant's acts, as opposed to the acts of others, contributed to the injuries....

...lt with respect to a non-party intentional tortfeasor whose acts contributed to the plaintiff's injuries. Id. at 942-43. For purposes of comparison, Florida law indicates that an intentional tortfeasor may not seek to apportion its fault. Fla. Stat. 768.81(4) (stating that the apportionment provision "applies to negligence cases" and "does not apply to any action ......

...2 1 The district court determined that Florida law governed Nice’s negligence claim, and that Florida’s comparative fault doctrine would allow the defendants to attempt to shift some or all of the fault to the Navy. See Fla. Stat. § 768.81(3)(a). 2 The district court found that its order involved a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b)....

...[2] Defendants' Cross Appeal By way of cross appeal, the Agency and Gonzalez argue that the trial court erred in not reducing the judgment based on Arena Parking's comparative negligence. The comparative fault statute applies only to negligence cases. See § 768.81(4), Fla....

...reate insurance coverage where to refuse to do so would sanction fraud or other injustice."). Promissory estoppel is not traditionally considered a cause of action arising from negligence. Additionally, because it is in derogation of the common law, section 768.81 must be strictly construed in favor of the common law....

...the present case did not create a fundamental error. Comparative Fault RJR argues that the court erred in refusing to reduce the jury’s compensatory damages by the Decedent’s comparative fault. The court’s refusal was based on its finding that section 768.81(4), Florida Statutes, (2013) barred application of the Dece *227 dent’s comparative fault to reduce damages because the jury found that RJR committed an intentional tort....

...1 Hiott cross-appeals the trial court’s order applying the jury finding that Mr. Hiott was partially at fault for his smoking-related illness to reduce the damages award. She asserts that because the jury found Reynolds committed the intentional tort of fraudulent concealment, section 768.81(4), Florida Statutes, barred application of Mr....

...Hiott moved for entry of final judgment in the full amount of compensatory damages, arguing that there should be no reduction based on Mr. Hiott’s fault because Reynolds committed an intentional tort, and thus Florida’s comparative fault statute, section 768.81, Florida Statutes, did not apply....

...Hiott asserts that the trial court erred-when it applied comparative fault to reduce the compensatory damages award, because Florida law provides that a comparative fault defense does not apply to intentional torts, and she asserts that this precludes waiver. § 768.81(4)(b), Fla. Stat.; Mazzilli v. Doud, 485 So.2d 477, 480 (Fla. 3d DCA 1986). Hiott relies on this court’s decision in Sury , where we held that section 768.81(4)(b), Florida Statutes, precluded a reduction of damages where, much like here, the case was essentially *480 based on intentional misconduct....

...gligence only. If the latter should occur, according to Appellee, then comparative fault would apply; if the former, the trial court should be required to disregard the jury’s comparative fault finding and decline to reduce the damages award under section 768.81(4), Florida Statutes....

...nal tort question, as the Fifth District reversed on the intentional tort claim; thus, only negligence claims remained, and comparative fault had to apply there as a matter of law. We think the rationale of Foreline on this point is not dependent on section 768.81, Florida Statutes, but on the simple premise that it would be misleading to the jury to: 1) fail to inform them that no comparative fault would apply to the intentional tort claims; 2) inform them that they must allocate comparative fa...

...ich this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery. § 768.81(2), Fla. Stat. (2001); see Y.H. Inv., Inc. v. Godales, 690 So.2d 1273, 1277 (Fla.1997) (construing section 768.81, Florida Statutes, as "a legislative policy choice to apportion liability for damages based upon a party's fault in causing the damage")....

...Instead, we conclude that where a joint offer is made by the defendants in a case, the failure to specify the amount to be contributed by each may be harmless if the theory for the defendants' joint liability does not allow for apportionment under section 768.81....

...negligent representation stated by Baggett. Thus we conclude that the district court erred in granting defendant JNOV, and we see no need to order a retrial on any question except that of the comparative negligence of the parties under Fla.Stat. § 768.81....

...rson who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person. [2] § 768.81, Fla....

...Recovery under these theories does not have as an element that any of the co-tortfeasors have received any money, only that they intentionally participated in the tort. Additionally, the doctrine of joint and several liability applies to the defendants because Fla.Stat. § 768.81, which codifies the doctrine of comparative fault in assessing damages against joint tortfeasors in negligence actions, specifically excludes intentional torts. See, Fla.Stat. § 768.81(4)(b)....

...ent from Metro-Dade because his recovery cannot be reduced by the comparative negligence of the mother. § 768.20, Fla.Stat. (1995). In response, Metro-Dade argues that it should only be responsible for 14.7% of the damages, its percentage of fault. § 768.81, Fla....

..., but shall not affect the recovery of any other survivor." § 768.20, Fla.Stat. (1995). In other words, under the wrongful death statute, a non-negligent survivor's recovery cannot be reduced due to another survivor's negligence. On the other hand, section 768.81(3), Florida Statutes (1995), provides, in pertinent part, that "the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liabili...

...3d DCA 1995), review denied, 673 So.2d 29 (Fla.1996); Gurney v. Cain, 588 So.2d 244 (Fla. 4th DCA 1991), review denied, 599 So.2d 656 (Fla.1992). In the instant case, the jury assessed the damages for the father, the non-negligent survivor, at $100,000. Because section 768.81(3) yields to section 768.20, where the two conflict, the plaintiff correctly asserts that the father's award of damages can not be reduced by the negligent survivor, the mother's, percentage of fault....

...However, we disagree with the plaintiff that Metro-Dade should be responsible for the percentage of fault attributed to a non-party, the aunt. Because she is not a "survivor," [2] as defined by the Florida Wrongful Death Act, the comparative fault statute controls. Section 768.81(3), Florida Statutes (1995), requires that "the court shall enter judgment against each party liable on the basis of such party's percentage of fault." The Florida Supreme Court has examined the comparative fault statute and concluded...

...rt erred by failing to further reduce the mother's award by the percentage of fault attributable to the aunt, 39.5% or $197,500. The comparative fault statute clearly states that each party's liability is limited to that party's percentage of fault. § 768.81, Fla....

...igence. We agree that the mother's award recoverable from Metro-Dade must be reduced by a $45,800 set-off. Previously, in calculating the amount of the father's award recoverable from Metro-Dade, we held that because section 768.20 has priority over section 768.81, where the two conflict, the father's award of damages could not be reduced by the mother's negligence. Likewise, the provisions of section 768.81 that eliminate joint and several liability do not apply. Gurney, 588 So.2d at 246 (holding that where section 768.81 does not apply because of the priority of section 768.20, then the doctrine of joint and several liability applies pursuant to section 768.31)....

...e trial court improperly dismissed the agreeing defendant from the lawsuit because the release failed to resolve the issue of that defendant's proportionate share of negligence. We disagree with Whited. In 1986, after Morgan, the Legislature adopted section 768.81, Florida Statutes, which provides in pertinent part: (3) Apportionment of damages....

...However, we choose to address one other point that we are certain will arise on *172 remand. At the time of trial, the trial court did not have the benefit of the Florida Supreme Court's decision in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Fabre held that pursuant to Section 768.81(3), judgment should be entered against each party liable on the basis of that party's percentage of fault.......

...t, regardless of whether they have been or could have been joined as defendants. Fabre, 623 So.2d at 1185. Therefore, on remand if there is sufficient "evidence to consider the liability of other nonparties," the jury is to be instructed pursuant to Section 768.81(3), Florida Statutes (1993), and provided with jury instructions and a verdict form that permits the jury to apportion liability among all alleged tortfeasors....

...The evidence supports the jury's finding that Suarez was negligent in selecting the contractor. Suarez raises a separate argument that the trial court erred in excluding the anonymous independent contractor from the verdict form so that the jury could assess comparative fault pursuant to section 768.81, Florida Statutes (2000), and Fabre v. Marin, 623 So.2d 1182 (Fla.1993). Section 768.81 and Fabre apply to incidents involving joint tortfeasors. See Beverly Enterprises-Florida, Inc. v. McVey, 739 So.2d 646, 650 (Fla. 2d DCA 1999); J.R. Brooks & Son, Inc. v. Quiroz, 707 So.2d 861, 863 (Fla. 3d DCA 1998). Section 768.81(3) requires that the court enter judgment against "each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability," subject to certain statutory exceptions....

...However, in this case, the County correctly asserts that it may not be held jointly and severally liable for economic or noneconomic damages. Florida law only permits joint and several liability under the limited circumstances set forth by statute. § 768.81(3), (4), (5), Fla. Stat. (1995). See Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990). Contrary to the trial court's conclusion, this case does not fall within those enumerated exceptions. Under section 768.81(3), Florida Statutes (1995), "joint and several liability for economic damages will be imposed only if each defendant's comparative fault exceeds the fault attributable to the plaintiff." Cody v....

...The County cannot be held jointly and severally liable for the economic damages. Additionally, the County cannot be held jointly and severally liable for the noneconomic damages because this is not an action where "the total amount of damages does not exceed $25,000." § 768.81(5), Fla....

...[3] It is unclear in the opinion where the 43 year period comes from. Presumably that is Hamilton's testified to life expectancy. [4] The apportionment of fault becomes applicable on retrial only if the jury finds a permanent injury and awards non-economic damages to the plaintiffs. See § 768.81(3) Fla....

...Contributory and comparative negligence are affirmative defenses that must be properly pleaded in order to be preserved. See Fed. R. Civ. P. 8(c)(1), 12(b); Florida Patient’s Comp. Fund v. Tillman, 487 So.2d 1032, 1035 (Fla.1986); Harvey v. Home Depot U.S.A., Inc., 2005 WL 1421170 at *2 (M.D.Fla. June 17, 2005); Fla. Stat. § 768.81 ....

...intiff “never argued to the jury or the court that the damages ... should be reduced by his [the smoker's] portion of fault”). Accordingly, we do not reach the merits of plaintiff's argument that reduction of the compensatory damages pursuant to section 768.81, Florida Statutes, was not appropriate as the gist of the suit is an intentional tort.

...Fabre, 623 So.2d at 1184-85; Black's Law Dictionary 933 (8th ed. 2004). In Fabre, the Florida Supreme Court created an affirmative defense that allows named defendants to apportion liability to non-parties termed Fabre defendants, thus abrogating the common law rule. Fabre, 623 So.2d at 1185-87 ("[S]ection 768.81 [of the Florida Statutes] was enacted to replace joint and several liability with a system that requires each party to pay for non-economic damages only in proportion to the percentage of fault by *1240 which that defendant contributed to the accident.")....

...Supreme Court adopted a comparative negligence scheme in which a plaintiff's damages are reduced by the degree to which they were caused by the plaintiff's own negligence. Hoffman, 280 So.2d at 438. That ruling was thereafter codified by statute in section 768.81(3) of the Florida Statutes. Later, in Fabre, the Florida Supreme Court interpreted section 768.81(3) as dispensing with the concept of joint and several liability in favor of a system where defendants are liable only according to their percentage of fault for the plaintiff's injury. Fabre, 623 So.2d at 1185. In turn, the legislature codified this interpretation of Section 768.81(3). In its current form, section 768.81(3) reads as follows: (3) Apportionment of damages.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability....

...irmative defense, on Trammell Crow's third affirmative defense and on Horizons' Third Party Complaint. Horizons' fourth affirmative defense asserts that Horizons is entitled to an allocation of damages between and among joint tortfeasors pursuant to Section 768.81, Florida Statutes....

...tionate reduction in damages claimed against Trammell Crow based on the "carelessness, negligence and/or other actual conduct by ... third-parties." Trammell Crow's response to Plaintiff's motion makes it clear that this affirmative defense rests on Section 768.81. The second count in Horizons' Third Party Complaint (Dkt. 53) against Mr. Constanzo is also based on Section 768.81....

...Constanzo for his intentional conduct. The crux of Plaintiff's argument is that the statute does not contemplate an allocation of fault among intentional and negligent tortfeasors. [3] While the parties have *561 referred the Court to some Florida caselaw interpreting Section 768.81, the cases do not address the issue presented by Plaintiff....

...ant. See, e.g., Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520 (Fla. 5th DCA 1999). Fault cannot be divided into percentages as contemplated in Willis Shaw, section 768.81 or rule 1.442 because both defendants are completely responsible for the injury to the plaintiff....

...r recovery is limited to the proportion of damages proximately caused by the defendant's negligence. The plaintiff's recovery is reduced by his or her percentage of fault. Id. In 1986, the Legislature codified the doctrine of comparative negligence. Section 768.81, Florida Statutes (1993), provides in relevant part: (1) Definition.—As used in this section, "economic damages" means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and se...

...imant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. (emphasis added). In refusing to reduce the economic damages award, the trial court misinterpreted section 768.81 and the supreme court's holding in Fabre v....

...Tallahassee Memorial Regional *1149 Medical Center, Inc., 659 So.2d 249 (Fla.1995). It concluded that the doctrine of comparative negligence did not apply to economic damages where the defendants' negligence exceeded the negligence attributable to the plaintiffs. Neither section 768.81 nor Fabre, however, supports the result in this case. Reading all subsections of section 768.81 in pari materia, the doctrine of comparative negligence must be applied to reduce both economic and noneconomic damages by the percentage of fault which can be attributed to the plaintiff. See § 768.81(2), Fla....

...As to the reduced damages, where there are two or more defendants, each defendant will be jointly and severally liable; provided that joint and several liability for economic damages will be imposed only if each defendant's comparative fault exceeds the fault attributable to the plaintiff. See § 768.81(3), Fla. Stat. (1993). Applying section 768.81 to the case at bar, the entire damages award, including economic and non-economic damages, should have been reduced by the percentage of fault attributable to David Kernaghan and then joint and several liability should have been imposed against the Codys for the Kernaghans' reduced damages....

...Fabre, which did not involve any comparative negligence by the plaintiff, merely states that fault should be apportioned between all entities who contributed to the ultimate result, whether or not each responsible entity was party to the litigation. Consistent with this holding and section 768.81(2), the Kernaghans must also bear their percentage of fault and thus, both economic and non-economic damages should have been reduced by thirty-five percent....

...In support of this defense, Wal-Mart requested the amounts of each settlement agreement, and the car manufacturer objected. Following hearings and supplemental memoranda, the trial court denied Wal-Mart’s motion to compel discovery. The court agreed with the tire manufacturer that the 2006 amendments to section 768.81, Florida Statutes, which abolished joint and several liability for economic damages, effectively abolished the right of a remaining defendant to seek a set-off....

...rt any irreparable harm that cannot be remedied on appeal, we dismiss the petition. See Bared & Co., Inc. v. *1055 McGuire, 670 So.2d 15B (Fla. 4th DCA 1996). Petition Dismissed. GROSS, TAYLOR and CONNER, JJ., concur. . Anderson does not address section 768.81 and the 2006 amendments. Wal-Mart also relies on W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79, 83 (Fla. 4th DCA 2010), which does not address section 768.81....

...which Viera had received from the county, the trial court entered final judgment against Schindler for $350,000. We agree with Schindler that reversal is required under Fabre v. Marin, 623 So.2d at 1182. The Florida supreme court in Fabre held that section 768.81(3), Florida Statutes (1989), requires that the jury be given the opportunity to apportion liability among all persons responsible for an accident....

...1993). Fabre defendants are non-parties which are alleged by a party defendant to be wholly or partially negligent and should be placed on the verdict form so there can be an apportionment of fault against them for noneconomic damages, pursuant to section 768.81(3), Florida Statutes (1995)....

...The district court held that these statutes do not apply to the instant case because “Florida law has evolved independently of the statutory provisions.” Williams v. Arai, 731 F.Supp. at 1561 . Furthermore, the district court did not apply the comparative fault provisions of Fla.Stat. § 768.81 (1986), regarding apportionment of damages among joint tortfeasors. II. DISCUSSION The Williamses seek a reversal of summary judgment for Arai, contending that the district court erred in refusing to apply Fla.Stat. §§ 768.81, 768.041, and 46.-015 in determining whether their offer of judgment to the state court defendants included a release of Arai. We agree. 1 Prior to the state court defendants’ submission of an offer of judgment, the state court had held that § 768.81 may apply to this case. 2 Section 768.81, enacted pursuant to the Florida Tort Reform Act of 1986, provides in relevant part: Apportionment of damages....

...damages. However, where the tortfeasor’s fault is less than that of the plaintiff’s, such tort-feasor is only liable in economic damages for his percentage of fault. No jury finding of the tortfeasors’ relative percentages of negligence under § 768.81 occurred prior to the $1.5 million judgment....

...ams’ bodily injury, or independently liable, and therefore liable only for a percentage of the injury. Nevertheless, the parties negotiated a release of the state court defendants with the understanding that apportionment potentially applied under § 768.81, i.e....

...We note also that both cases were decided before the Florida Tort Reform Act of 1986, which is applicable to the instant case. See infra. 2 . Specifically, the Florida court denied the Williamses’ motion for a summary judgment against the defendants’ affirmative defense that "this action is subject to F.S. § 768.81, and Defendants are not jointly and severally liable for non-economic damages, nor for economic damages if Plaintiff is found more at fault than any Defendant.” Defendants’/Third-Party Plaintiffs’ Answer, Affirmative Defenses and Third-Party Complaint, Williams v....

...ind that the limitation of liability provision was, as a matter of law, invalid and unenforceable as to Witt. III. ITT as a Fabre Defendant Witt argues that the trial resolution judge failed to properly conduct a Fabre allocation of fault as to ITT. Section 768.81, Florida Statutes (2005), provides in pertinent part, that "[i]n order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff's injuries." § 768.81(3)(e), Fla. Stat. (2005). Prior to trial, Witt amended its affirmative defenses to allege contribution by ITT pursuant to section 768.81....

...TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF: This diversity personal injury case concerns the question of whether a court must submit a non-party’s comparative fault to a jury apportioning the liability of the parties pursuant to Fla.Stat. § 768.81(3)....

...d with a safety screen, and in failing to warn of the fan’s suction. The trial court denied Allied’s request to allow the jury to consider and assess non-party Eastern’s percentage of fault, if any, under Florida’s Tort Reform Act, Fla.Stat. § 768.81 (1989)....

...Thus, the amended final judgment was $245,000.00. The district court denied Allied’s motion for a new trial. III. REASONS FOR CERTIFICATION. There are two cases, from the Florida District Courts of Appeal that conflict in the interpretation of Fla.Stat. § 768.81 (1989). These cases are: Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991) and Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992). In Mess-mer, the Fifth District Court of Appeal held that § 768.81 mandates consideration of a non-party’s comparative fault in apportioning the liability of the parties to the suit....

...The decision in Messmer directly conflicts with the decision in Fabre . In Fabre , the Third District Court of Appeal affirmed the decision of a trial court that did not reduce a jury damage award by fifty percent, the percentage of negligence the jury attributed to a non-party. Fabre reasoned that § 768.81(3) is ambiguous because it fails to define the term “party.” The court held that “in subsection three, ‘party’ may be interpreted as referring to: 1) persons involved in an accident; 2) defendants in a lawsuit; or 3) all litigants in the lawsuit.” Fabre, 597 So.2d at 885 . The Fabre court declined the first interpretation because § 768.81(3) requires the court to enter judgment against liable parties, and “the court lacks jurisdiction to enter judgment against nonparties.” Id....

...As these two cases conflict directly on the question of law dispositive of the instant matter, we respectfully certify that question to the Florida Supreme Court and the Honorable Justices of that Court. *628 IV. QUESTION FOR CERTIFICATION. WHETHER THE INTERPRETATION OF FLA.STAT. § 768.81(3) (1989) REQUIRES CONSIDERATION BY THE JURY OF A NON-PARTY’S COMPARATIVE FAULT IN ORDER TO DETERMINE A PARTY’S LIABILITY? The phrasing of the question is not intended to limit the inquiry of the Florida Supreme Court....

...In answering the certified question, the Supreme Court is at liberty to consider the problems and issues involved in this case as it perceives them. In order to assist the Supreme Court, the entire record in this case, and copies of the briefs of the parties, are transmitted herewith. QUESTION CERTIFIED. 1 . Section 768.81(3) of the Florida Statutes provides: APPORTIONMENT OF DAMAGES....

...Next, the Harrimans argue that the trial court erred in allowing the jury to apportion liability between Garlock and twenty-one other manufacturers. We agree. In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla. 1993), the Florida Supreme Court held that pursuant to Section 768.81(3), judgment should be entered against each party liable on the basis of that party's percentage of fault.......

...2d DCA 1994). In the instant case, Garlock failed to introduce the type of evidence required by W.R. Grace. Therefore, Garlock did not satisfy "the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre." W.R....

...responsibility the jury had assigned to Mrs. Smith. III. Florida Law Governing Comparative Fault We review de novo a district court’s interpretation of a state law. McMahan v. Toto, 311 F.3d 1077, 1081 (11th Cir. 2002). Florida Statute § 768.81 provides for a reduction of damages in a negligence action for a plaintiff who has herself acted negligently, in proportion to the plaintiff’s degree of fault....

...Specifically, “[i]n a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” Fla. Stat. § 768.81(2) (2011)....

...of negligence, strict liability, products liability, professional malpractice . . . or 12  Case: 13-14316 Date Filed: 01/25/2018 Page: 13 of 23 breach of warranty and like theories.” Id. § 768.81(1)(c)....

...A “‘[p]roducts liability action’ means a civil action based upon a theory of strict liability, negligence, breach of warranty, nuisance, or similar theories for damages caused by the manufacture, construction, design, formulation, installation, preparation, or assembly of a product.” Id. § 768.81(1)(d). On the other hand, “This section does not apply . . . to any action based upon an intentional tort.” Id. § 768.81(4). Finally, “[t]he substance of an action, not the conclusory terms used by a party,” determines whether an action is a negligence action or a products liability action. Id. § 768.81(1)(c) and (d). It had been Defendant’s position, during trial and on appeal, that Smith’s action, at its heart, was a products liability and negligence action—not an intentional torts action—notwithstanding the existence of claims based on intentional and fraudulent concealment....

...This $4,000 loss would be borne by Miss Kane rather than Commercial Carrier if the joint enterprise doctrine applied. [8] Although inapplicable to this case, the recent statutory limitation of joint and several liability also eliminates some of the harsher effects of that doctrine. § 768.81, Fla....

...Hargraves's and Springer Motor's liability, and that the jury verdicts in favor of those defendants were against the manifest weight of the evidence. The last issue involves the trial court's determination that an unknown tortfeasor should be included on the verdict form pursuant to section 768.81, Florida Statutes (1995), and Fabre v....

...intentional criminal conduct was a foreseeable result of the defendant's negligence. 705 So.2d at 562. Further, the court determined that the gravamen of that suit was not an action based on negligence, but one based on an intentional tort, to which section 768.81 does not apply....

...In response KPMG recognizes that joint liability may be required for a setoff under section 768.041 but argues that this is a case of joint liability. The KPMG theory of joint liability comes from our decision in Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996). Slawson involved the meaning of section 768.81, a statute that adopted the doctrine of "comparative fault" and to that extent bars the use of joint and several *970 liability. [9] Section 768.81(4) specifies that comparative fault applies only to "negligence cases," however, and goes on to provide: "In determining whether a case falls within the term `negligence cases,' the court shall look to the substance of the action and n...

...y anyone, and KPMG's misrepresentations could have simply overstated some inventory, or missed some bad debts. Because the negligence claim here was not based on an intentional tort, the exceptions to the abrogation of joint and several liability in section 768.81 are not applicable here....

...rse, the setoff statutes do apply to economic damages for which parties continue to be subject to joint and several liability."). [7] Settlements (1) and (2) appear to be in this class. [8] Settlements (3) and (4) appear to be in this class. [9] See § 768.81(3), Fla....

...e is a defense to a negligent misrepresentation claim and, if so, the effect of such defense. In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court held that the doctrine of comparative negligence, as codified in § 768.81, Fla....

...USG contends on cross-appeal that the trial court erred in granting the plaintiff's motion for directed verdict. We disagree. The issue of apportionment of fault between all potential tortfeasors was addressed in Fabre v. Marin, 623 So.2d 1182 (Fla.1993). The Fabre court held that pursuant to section 768.81(3), Florida Statutes, judgment should be entered against each party liable on the basis of that party's percentage of fault.......

...parties on a job site and the likelihood of injury from each of the products. Without that evidence, [the defendant has] not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre....

...ob sites, and the toxicity of those products as they were used." W.R. Grace, 636 So.2d at 748. Therefore, since USG failed to satisfy "the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81," the trial court correctly granted the plaintiff's motion for directed verdict as to the nonparty "others." Further, USG's reliance on State Farm Mutual Automobile Insurance Co....

...As the classic case of the unknown but clearly-shown-to-be-negligent "phantom driver" shows, it is not necessary to identify a contributing tort-feasor by name. See Fabre v. Marin, 623 So.2d 1182 (Fla.1993); State Farm Mut. Auto. Ins. Co. v. Lynch, 661 So.2d 1227 (Fla. 3d DCA 1995). The thrust of section 768.81(3), Florida Statutes (Supp....

...1952); State Department of Transportation v. Knowles, 402 So.2d 1155 (Fla. 1981). The statute, as it existed when this accident occurred, was not ambiguous. Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987). Defendants also argue that the trial court erred in not applying section 768.81, Florida Statutes (1987), which eliminates joint and several liability under certain circumstances....

...Defendants argue that because the jury found them to be 80% negligent, and the truck manufacturer (which is not liable because of the statute of repose) 20% negligent, the defendants should only be liable for 80% of plaintiffs' damages. The problem with this argument is that under section 768.81(3), economic damages are still joint and several....

...ing her to take nothing from Hughes/Cole. Although the setoff of collateral sources was proper, the trial court's calculation of Hughes/Cole's proportionate share of the damages is erroneous. Since the adoption of the comparative fault *800 statute, section 768.81(3), Florida Statutes (Supp.1988), economic and noneconomic damages are determined differently....

...e circumstances of each individual’s exposure, the individual’s past and current medical history, and the individual’s failure to mitigate. 9 Finally, as the Defendants so cogently point out, Florida’s law of comparative fault as codified in section 768.81, Florida Statutes, which by its clear terms would govern Plaintiffs’ causes of action for negligence, strict liability, and products liability, poses an almost insurmountable obstacle to certification of any liability issue....

...16 Plaintiff counters that no reduction of the award is warranted in the instant case because, at its core, the case is founded upon an intentional tort. For this proposition, Plaintiff relies upon section 768.81, Florida Statutes (2016), entitled “Comparative fault.” That statute provides in pertinent part: (1) Definitions.-- As used in this section, the term : ... (c) “Negligence action” means, without limitation...

...Reynolds Tobacco Co., SC15-2233 (oral argument held March 8, 2017). We agree with the Fourth District in this regard, and apply a de novo standard to review of the trial court’s 18 upon an intentional tort.” § 768.81(4)....

...warded to any boat owner. Under Florida law, comparative fault is always an issue in a negligence claim. Gilchrist Timber Co. v. ITT Rayonier, 696 So.2d 334, 338 (Fla.1997) (“comparative fault principles shall apply in negligence cases”) (citing Section 768.81, Florida Statutes). As one court has noted, Florida’s law of comparative fault as codified in section 768.81, Florida Statutes, which by its clear terms would govern Plaintiffs’ causes of action for negligence, strict liability, and products liability, poses an almost insurmountable obstacle to certification of any liability issue....

...Davis of Davis, Carroll, Colbath & Isaacs, West Palm Beach, for appellee/cross appellant — Bulldog Fence Company. WARNER, Judge. This is an appeal from a final judgment in a wrongful death case. The issue presented deals with the proper interpretation and application of the comparative fault statute, section 768.81, Florida Statutes (1987), the imputation to a nonnegligent parent of the comparative negligence of the other parent in the death of a child, and the contribution among joint tort-feasor statute, section 768.31, Florida Statutes....

...Cain's damages. The court subsequently entered an order on the third party action for contribution, requiring Bulldog to pay 35% of what the Gurneys were obligated to pay under the judgment. From these orders, the parties appealed. The Gurneys argue that section 768.81(3), Florida Statutes, first applies....

...Bulldog then is liable to the Gurneys for 35% of whatever total damages the Gurneys are ultimately liable. In making this argument the Gurneys overlook the application of other statutes which control in this case. The tort reform act of 1986 of which section 768.81, Florida Statutes, is a part made substantial changes in Florida law with respect to the determination of damages and joint and several liability....

...However, as part of that act, section 768.71(3) provided: If a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply. The Cains contend that section 768.20, Florida Statutes, enacted in 1972 conflicts with 768.81 in this case and thus pursuant to section 768.71(3) applies....

...2d DCA 1979) (holding that the enactment of the 1972 changes in the wrongful death statute made obsolete the ruling in Martinez, although the decision did not specifically address the quoted portion of section 768.20, Florida Statutes.) Thus, while section 768.81, Florida Statutes, provides that the court shall enter judgment against each party liable on the basis of such party's percentage of fault, under section 768.71(3) that statute must yield to section 768.20 where they conflict....

...Cain's damages depends upon the reduction of Mrs. Cain's award by Mr. Cain's comparative negligence. Section 768.20 prohibits this. The trial court correctly concluded that Mrs. Cain was entitled to her full award of damages against the Gurneys. Although section 768.81 eliminates the doctrine of joint and several liability to actions to which its provisions apply, since we have concluded that section 768.81 does not apply because of the priority of section 768.20, then the doctrine of joint and several liability applies pursuant to section 768.31, Florida Statutes....

...Cain is liable for his share of the damage award for which the Gurneys are liable. Section 768.31(2)(b), Fla. Stat. (1987); Johnson v. School Board of Palm Beach County, 537 So.2d 685 (Fla. 4th DCA 1989). In Johnson, a case arising prior to the enactment of section 768.81, the parents sued the school board for the wrongful death of their child....

...ction 400.023(1), Florida Statutes (1999), allows only the licensee of a nursing home to be sued for damages resulting from deprivation or infringement of a resident's rights, the Medical Center could not be a joint tortfeasor with the Nursing Home. Section 768.81, Florida Statutes (1999), deals with apportionment of damages, and in cases to which this particular section applies, the court must enter judgment against each party liable on the basis of each parties' percentage of fault, and not on...

...cretion. [3] It was subversive of the basic and sublime principle that the purpose of our system of justice is to seek the truth. Reversed and remanded. NOTES [1] Our opinion makes it unnecessary directly to consider the appellant's point concerning section 768.81(3), Florida Statutes (1991)....

...n of the present case. As Plaintiffs' point out, Florida law permits Defendants, as an affirmative defense, to attribute tort liability to a party who is absent from the litigation. See Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993); See Fla. Stat. § 768.81....

...The court reasoned: There is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect. In such a case, where the retailer's liability is not based on fault, section 768.81(3), Florida Statutes (1999), does not allow the defendants to apportion damages between themselves....

...owledged throughout the trial that his father shared some fault for his choice to smoke cigarettes and failure to overcome his addiction. In addition to waiver, the defendants argued that this case was essentially a products liability claim and that section 768.81, Florida Statutes, required reduction of the award according to the contributory fault found by the jury. After hearing argument on the motion, the trial court discussed its reasoning and the opinion in Mazzilli v. Doud, 485 So.2d 477 (Fla. 3d DCA 1986), and concluded that section 768.81, Florida Statutes, did not require apportionment of damages for intentional torts, such as fraudulent concealment and civil conspiracy to fraudulently conceal in this case....

...of the actual award, was properly left to the court. There was no inkling that the jury failed to follow the jury instructions or otherwise deliberated improperly. Applying the law to the facts found by the jury, the trial court properly ruled that section 768.81, Florida Statutes, did not require reduction of the damages awarded in this case, where the jury found the defendants liable under both negligent and intentional tort theories. Section 768.81(2), Florida Statutes provides: In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery. The statute allows for some discretion in the determination of whether an action is “a negligence action,” because section 768.81(l)(c) defines “negligence action” as: [A] civil action for damages based upon a theory of negligence, strict liability, products liability, ... or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action. The question in this case is whether section 768.81 requires reduction of the damages awarded when the action includes multiple causes of action, both negligent torts, as listed in the statute, and intentional torts such as fraudulent concealment and civil conspiracy to fraudulently conceal....

...esentations in the tobacco companies’ advertising and other publications supported the conclusion that this action “actually had at its core an intentional tort by someone.” Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 563 (Fla.1997) (section 768.81 did not apply to case where allegations of multiple negligent torts stemmed from intentional acts)....

...ed to “apportionment of fault and damages on all counts other than those alleging intentional torts,” and considering the defendants’ agreement to the verdict form at trial, we find no abuse of the trial court’s discretion in concluding that section 768.81, Florida Statutes, did not require reduction of the damage award by the percentage of fault found by the jury attributable to the plaintiffs decedent. As explained in Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562 (Fla.1997), the public policy behind the exclusion in section 768.81 for intentional torts is that intentional wrongs “differ from simple negligence ‘not merely in degree but in the kind of fault ... and in the social condemnation attached to it.’ ” In addition, the contributory fault provision, like the rest *853 of section 768.81, is in derogation of the common law and therefore “must be strictly construed in favor of the common law” and “should not be interpreted to displace the common law any more than is necessary.” Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996); see also Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla.1997). The intentional torts pled, argued, and proved to the jury in this case remove it from the dictates of section 768.81(2)....

...Marin, 623 So.2d 1182 (Fla.1993), receded from in part on other grounds in Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995). We conclude that it was not. In Fabre, the supreme court concluded: We are convinced that section 768.81 was enacted to replace joint and several liability with a system that requires each party to pay for noneconomic damages only in proportion to the percentage of fault by which that defendant contributed to the accident. 623 So.2d at 1185. Thus, section 768.81, Florida Statutes (1993), and Fabre are limited to incidents involving joint tortfeasors....

...Dickens had breached the standard of care for a neurologist. He testified that the upper body symptoms displayed by Saunders would lead a reasonable physician to believe that a problem in the neck or brain existed. 2. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993); see also § 768.81(3), Fla. Stat....

...In this case, as argued in Merrill Crossings and Stellas v. Alamo Rent-A-Car, Inc., 702 So.2d 232 (Fla. 1997), Budget seeks to offset its negligence by shifting liability to the intentional tortfeasor. As the Florida Supreme Court explained in Merrill Crossings, section 768.81, Florida Statutes, does not permit allocation of fault between both negligent and intentional tortfeasors....

...o attacked the rental vehicle and occupants. Rejecting the rental company's argument, the supreme court explained that it was error to permit both the negligent tortfeasor and the intentional tortfeasor to appear on the verdict. "By its very terms, [section 768.81(4)(b)] simply does not apply to cases involving intentional conduct—either as a vehicle for an intentional tortfeasor to reduce his liability because of the negligence of a third party, or as in this case, for a negligent tortfeasor t...

...The supreme court has explained that "negligent acts are fundamentally different from intentional acts." Merrill Crossings, 705 So.2d at 562. The latter will not serve to reduce the liability of a negligent tortfeasor. See id. Based on this result, we hold that section 768.81 is inapplicable in this case....

...dent and not on the basis of solvency or amenability to suit of other potential defendants." Id. at 1186. The apportionment provision of the Contribution Act is based on the same principle as Florida's comparative fault statute, which is codified at section 768.81. Compare § 768.81(3), Fla....

...The differing constructions applied by other appellate courts makes reliance on our previous decisions tenuous. [5] Florida Bar Staff, Florida Civil Practice: Damages, § 4:35 History (5th ed. 2000). [6] Id. [7] See ch. 71-252, Laws of Fla. [8] See § 768.81 Fla....

...4th DCA 1998) (noting that the sellers' state of mind is irrelevant to a claim of non-disclosure or concealment). However, our acknowledgment of that concept does not convert the purchaser's claim of fraudulent concealment into a negligent misrepresentation claim. Section 768.81(4)(a), Florida Statutes (2002) defines comparative fault and sets forth when the issue should be considered as follows: This section applies to negligence cases....

...The settlement proceeds ($137,500) were thus apportioned by law half to economic damages ($68,750) and half to non-economic damages ($68,750). A party is "liable for non-economic damages in proportion to the percentage of fault by which that party contributed to the accident," id., as determined by the jury. See § 768.81(3), Fla....

...o not apply to noneconomic damages for which defendants are only severally liable." Wells, 659 So.2d at 253. As to economic damages, however, the trial court necessarily entered judgment "on the basis of the doctrine of joint and several liability." § 768.81(3), Fla....

...The supreme court, in its conflict review of the two cases, quashed the third district's Fabre decision, and approved the fifth district's Messmer decision. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). The supreme court held that, with respect to non-economic damages, section 768.81(3), Florida Statutes (Supp....

...entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants." Fabre, 623 So.2d at 1185; see also Allied-Signal, Inc. v. Fox, 623 So.2d 1180 (Fla. 1993) (holding that, with respect to non-economic damages, section 768.81(3) requires that an employer's comparative fault must be considered by the jury in a negligence suit by an employee against a manufacturer, even *157 though the employer is immune from liability under the workers' compensation law)....

...gligence. When the trial court directed a verdict in favor of Dr. Sellinger, who was a joint tortfeasor with Dr. Anderson, it exonerated Dr. Sellinger from liability. Therefore, there were no joint and several tort-feasors to which the principles of section 768.81(3), Florida Statutes (1999) and Fabre v....

...proven at trial.1 The district court granted the motion and directed judgment in favor of AHA in the amount of $1,851,822.40. The instant appeal followed. AHA appealed, inter alia, the district court’s determination that F LA. S TAT. ch. 768.81 applied and limited its recovery to 41% of its proven damages....

...bligated them to defend and indemnify CSX and Amtrak. They argued, inter alia, that sovereign immunity precluded the enforcement of the terms of the Crossing Agreement. Because these 1 Their argument was based on FLA . STAT . ch. 768.81, the Florida comparative fault statute....

...We now proceed to address the certified questions and the Florida Supreme Court’s responses in turn. II. DISCUSSION A. Florida’s Comparative Fault Statute On appeal, AHA argued that the district court improperly applied Florida’s comparative fault statute, F LA. S TAT. ch. 768.81, in determining that its recovery was limited to 41% of its proven damages. Particularly, AHA argued that the fault of Rountree, an active tortfeasor, could not be apportioned to AHA, which was vicariously liable, under the comparative fault statute because “§ 768.81 applies solely to parties who are directly negligent, and that a party who is only vicariously liable cannot have fault apportioned to him under § 768.81.” Nat’l R.R....

...Because the resolution of the parties’ contentions on this issue was not clear from Florida precedent, we certified the following question to the Supreme Court of Florida: SHOULD A VICARIOUSLY LIABLE PARTY HAVE THE NEGLIGENCE OF THE ACTIVE TORTFEASOR APPORTIONED TO IT UNDER FLORIDA STATUTE § 768.81 SUCH THAT RECOVERY OF ITS OWN DAMAGES IS REDUCED CONCOMITANTLY? 9 Id....

...the question in the affirmative. See Am. Home Assurance Co., __ So. 2d at __ (slip op. at 22). Noting that the statute provides that “any contributory fault chargeable to the claimant diminishes proportionately” the amount the claimant may recover, F LA. S TAT. ch. 768.81(2) (emphasis added), the court determined that the statute “must be read to include parties other than those that are directly liable, and thus [the statute] applies to vicariously liable parties such as AHA.” Am. Home Assurance Co., __ So. 2d at __ (slip op. at 22). Because the Florida Supreme Court concluded that F LA. S TAT. ch. 768.81 was properly applied to limit AHA’s recovery to 41% of its proven damages, the district court’s application of the statute and its award of damages to AHA are affirmed. B....

...Supreme Court of Florida. Based on the Florida Supreme Court’s determinations and our analysis of the parties’ remaining arguments, we have concluded that the district court properly applied the Florida comparative fault statute, F LA. S TAT. ch. 768.81, to limit AHA’s recovery to 41% of its proven damages, and properly concluded that the indemnity provision in the Crossing Agreement obligated KUA and FMPA to indemnify CSX and Amtrak....

...reversal is improper where no error is found as to one of the issues, as the appellant is unable to establish that he has been prejudiced. *1300 Under this rule, we must presume that the jury found for the appellees on both theories of negligence. Penske further argues that the court improperly entered judgment pursuant to section 768.81(3) Florida Statutes (1995). Section 768.81(3), provides, in pertinent part: [T]he court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respec...

...Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla.1995), and W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746 (Fla. 2d DCA 1994) to justify the inclusion of the non-parties Johns-Manville and Phillip Carey in the jury instructions and on the verdict form. Addressing apportionment of liability, section 768.81 provides that "the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." § 768.81(3), Fla. Stat. (2002). In Fabre, the supreme court construed section 768.81 and wrote: "Clearly, the only means of determining a party's percentage of fault is to compare that party's percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants." 623 So.2d at 1185....

...parties on a job site and the likelihood of injury from each of the products. Without that evidence, [the defendant has] not satisfied the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81, Florida Statutes (1991) and Fabre....

...the toxicity of those products as they were used." [ Dougherty, ] 636 So.2d at 748. Therefore, since [U.S. Gypsum] failed to satisfy "the foundation necessary for a jury to receive jury instructions and a verdict form to decide the case pursuant to section 768.81," the trial court correctly granted the plaintiff's motion for directed verdict as to the nonparty "others." Id....

...“fault,” and *1342 strict liability is not based on fault. A detailed analysis of Florida law on strict liability is unnecessary. Instead, Florida law is clear that comparative negligence does apply in strict product liability cases. Fla. Stat. § 768.81 (1)(c); see West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla.1976). Moreover, the statutory provision dealing with comparative negligence is entitled “Comparative Fault.” Fla. Stat. § 768.81 . Further, the statute refers to the “contributory fault chargeable to the claimant” and instructs courts to “enter judgment against each party liable on the basis of such party’s percentage of fault.” Fla Stat. § 768.81(2, 3) (emphasis added)....

...Following this doctrine, and assuming arguendo that Mid-Continent breached its duty to defend Winfree, the Court finds that Mid-Continent is precluded from challenging liability for the MSA and Consent Judgment on the basis that joint and several liability does not exist in negligence actions in Florida. See Fla. Stat. § 768.81 (3)....

...ts. We affirm. Appellant does not argue that plaintiff did not incur these costs in proving her case, but rather that there should be a hard and fast rule that costs are assessed in the same percentage as fault, because that would be consistent with section 768.81, Florida Statutes (1993), which partially abrogated joint and several liability. We cannot agree with appellant, since section 768.81 pertains to damages, not costs....

...Wells Fargo Services, 678 So.2d 1262 (Fla.1996), 6.1b(2) may be used to alert the jury to the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of a section 768.81 apportionment of liability in such cases....

...Wells Fargo Services, 678 So.2d 1262 (Fla.1996), 6.1c(2) may be used to alert the jury to the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of a section 768.81 apportionment of liability in such cases....

...efine the terms. 2. Fla. Stat. § 768.0415 refers only to "negligence." The committee takes no position as to whether the statute is limited to negligence cases or the definition of "negligence" in this statutory context. For example, see Fla. Stat. § 768.81(4)(a), defining "negligence cases." 6.2 PERSONAL INJURY AND PROPERTY DAMAGES: ELEMENTS a....

...ault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiffs injuries. § 768.81(3)(b), Fla....

...A close call to some might be a cautious passing to others. Unlike prior accidents which actually took place, there is nothing objective or certain about opinions and estimates of "near misses" and their causes. I find no error by the trial court in excluding this testimony. NOTES [1] See § 768.81(3), Fla....

...asel"), filed suit against Jonathan Queen and McFarland & Sons for damages arising out of a traffic accident. In February 2001, a final judgment in favor of Basel was entered. Basel appealed, arguing that the trial court applied the wrong version of section 768.81, Florida Statutes, which addresses joint and several liability....

...Apportioning comparative negligence, the jury found School Board 20%, Snell 70%, and Petit-Dos 10% at fault. We review de novo the legal question of whether certain conduct qualifies as negligence or intentional tort. See, e.g., Boza v. Carter, 993 So.2d 561, 562 (Fla. 1st DCA 2008). The comparative fault statute, section 768.81, Florida Statutes, provides for apportionment of fault in negligence cases. However, the statute contains an exception “to any action based upon an intentional tort.” § 768.81(4)(b), Fla....

...ional tort is exactly what *1025 the security measures are supposed to protect against”) There, the shooting by the unknown assailant met the first definition of an intentional tortfeasor — conduct exhibiting a deliberate intent to injure. Thus, section 768.81 did not apply and the intentional tortfeasor was properly excluded from the verdict form....

...fault statute in this case, thereby improperly allowing the jury to apportion fault for the injuries he sustained as a result of his physical altercation with Michael Schmidt to not only City Tropics, but also to himself and to Betten. We disagree. Section 768.81 of the Florida Statutes (2007), sets forth Florida's comparative fault statute....

...Schnepel, 795 So.2d 959, 961 (Fla.2001), under the common *1154 law doctrine of joint and several liability all negligent defendants were held responsible for the total amount of the plaintiff's damages regardless of the extent of each defendant's fault in causing said damages. However, the Legislature's enactment of section 768.81 represented a policy shift away from joint and several liability toward the apportionment of fault, with each defendant being held responsible only for its percentage of fault. Of importance to the instant appeal, the statute expressly applies only to negligence cases and does not apply to "any action based upon an intentional tort." Hennis contends that the trial court erred in applying section 768.81 in this case in order to apportion fault for his injuries to himself and to Betten because his lawsuit against City Tropics for negligent failure to maintain reasonable security procedures was an action based upon an intentional tort committed by Schmidt....

...e sustained as a result of the defendants' failure to maintain reasonable security measures. Of importance to that appeal, during trial the trial court refused to place the name of McDonald's assailant on the verdict form, relying on the language of section 768.81 which states that the apportionment statute does not apply "to any action based upon an intentional tort." Upon review of the evidence presented, the jury returned a verdict finding Wal-Mart seventy-five percent negligent and Merrill Crossings twenty-five percent negligent for McDonald's injuries....

...The court then accepted McDonald's contention that the substance of his lawsuit arose from him being intentionally shot by an assailant and that, therefore, his lawsuit was "based on" an intentional tort and, as such, the trial court properly applied section 768.81 to exclude the assailant's name from the verdict....

...Merrill Crossings. The case of Burns International Security Services of Florida v. Philadelphia Indemnity Insurance Company, 899 So.2d 361 (Fla. 4th DCA 2005) is factually similar to the instant case and supports the trial court's decision to apply section 768.81....

...r D & H's loss amongst Burns, D & H, ADT Security Services, and the Parkway Commerce Center (the owner of the industrial park). On appeal, Philadelphia Indemnity asserted that the trial court had improperly ruled that the apportionment provisions of section 768.81 applied to the action. In resolving the issue, the Fourth District held: Florida law allows Burns and defendants in similar negligence actions to apportion fault between themselves and negligent non-parties. See Fla. Stat. § 768.81 (2001); Fabre v....

...Philadelphia Indemnity misunderstands Fabre and its progeny as well as Florida's comparative fault statute. Under its view, a defendant in a negligent security case would never be able to apportion liability with other negligent parties (and non-parties). This interpretation is inconsistent with Section 768.81, which the trial court properly applied in this case....

...D & H's loss, the action against Burns is not based upon an intentional tort but instead is based on the negligent manner in which Burns conducted its security responsibilities. Philadelphia Indemnity cites to no case in this state which holds that Section 768.81, Florida Statutes, does not apply to cases in which the theory of recovery is negligence....

...slature's intent. State v. J.M., 824 So.2d 105, 109 (Fla. 2002). To determine legislative intent, courts look first to the plain language of the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Id. at 303. The plain language of section 768.81 of the Florida Statutes states that the apportionment provisions apply to "negligence cases"....

...Hennis and Betten was based on their alleged comparative negligence. As such, as for the issues before the trial court, there was no claim submitted by either party "based upon an intentional tort"; therefore, the trial court properly concluded that section 768.81 applied to permit the jury to apportion damages amongst the joint negligent tortfeasors....

...The trial court did not submit the agent's negligence to the jury because there was no expert testimony to the effect that the agent was negligent. A jury found the appraiser liable, and she appeals. In order to include a nonparty, such as this agent, on the verdict form under section 768.81(3), Florida Statutes (2002), and Fabre v....

...2d DCA 2001) (applying the Behar reasoning to an offer from multiple plaintiffs to one defendant). We recognize this court has held that a failure to apportion may be harmless error if "the theory for the defendant's joint liability does not allow for apportionment under section 768.81, Florida Statutes." Danner Constr....

...Plaintiffs also argue that comparative fault, as enacted in Florida in 1986, must be applied in order to prevent the Arai defendants from escaping without liability for their alleged negligence in manufacturing the helmet that Timothy Williams was wearing when his accident occurred. See Fla.Stat. § 768.81....

...other joint tortfeasor. Mathis v. Virgin, 167 So.2d 897, 899 (Fla.3d DCA 1964), cert. denied, 174 So.2d 30 (Fla.1965). Nevertheless, as this court has stated previously, this decision has been superseded by later decisions of the Florida courts. [4] 768.81....

...o this section is attributed to a teaching hospital ..., the court shall enter judgment against the teaching hospital on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability. Fla.Stat.Ann. § 768.81 (West Supp.1989)....

...At common law, under the doctrine of joint and several liability, all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. Gouty v. Schnepel, 795 So.2d 959 (Fla.2001). In 1986, the Legislature enacted section 768.81, the comparative fault statute....

...feasors. Instead of each defendant being severally responsible for all of the plaintiffs' damages, with limited exceptions, the defendant is responsible only for the percentage of fault determined by the jury. Gouty. In 1999, the Legislature amended section 768.81 to provide joint and several liability for economic damages based on a sliding scale, depending on whether the plaintiff was with or without fault and the percentage of fault of the defendant....

...The amendment made a defendant less than 10% at fault not subject to joint and several liability, regardless of whether the plaintiff had some fault or not. Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002). However, this court has held the 1999 amendment to section 768.81 is prospective only and may not be applied retroactively to causes of action accruing prior to its effective date. Basel. The 1997 version of section 768.81, in effect at the time of the accident in this case, apportioned damages as follows: (3) Apportionment of damages.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such p...

...ions under section 113(h). See State of Ala., 871 F.2d at 1558-59. [14] Assuming liability is ultimately established, the Defendants will be able to place Escambia Treating on the verdict form and argue their liability to the jury. See FLA.STAT.ANN. § 768.81 (West Supp.2001); Fabre v....

...The trial court, accordingly, properly overruled Hyundai's objections based on Frye. Last, we hold that the trial court erred by refusing to instruct the jury on the comparative negligence of the nonparty, accident-causing driver and include that driver on the verdict form. Florida's comparative negligence statute, section 768.81, [5] applies in strict liability cases....

...occupant. Ferayorni I, 711 So.2d at 1173 n. 1. [3] "Human factors," otherwise known as "ergonomics," concerns the relationship between human beings and the objects in the world around them. [4] Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). [5] Section 768.81 provides, (3) APPORTIONMENT OF DAMAGES In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.... (4) APPLICABILITY— (a) This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability.... §§ 768.81(3), (4)(a), Fla....

...The court added the economic damages of $811.19 to the noneconomic damages of $25,937.50 for a total award of $26,748.69. Dewitt asserts that the court's computation made Dewitt responsible for much more than its 25% share of the Walters' noneconomic damages, contrary to the plain language of section 768.81, Florida Statutes (1991). Section 768.81(5) provides: Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions in which the total amount of damages does not exceed $25,000....

...1993), the court held that a defendant is responsible only for that portion of the noneconomic damages equivalent to the percentage of fault attributable to that defendant. In a footnote, the court provided examples of how to calculate the amount of damages: 3. Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages....

...alued at $98,309.59. The Court entered Final Judgment, based on joint submission by the parties, on January 20, 1994. The final judgment apportioned the damages based on the allocation of fault on the verdict form, in accordance with Florida Statute § 768.81....

...gs. Plaintiff alleges she was injured due to the dangerous condition and that Defendants had a duty to warn her of that condition. Recently the Florida Supreme Court decided Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and interpreted Florida Statutes § 768.81(3) which reads: (3) APPORTIONMENT OF DAMAGES....

...s if it were a simple negligence action. Therefore, the jury will be directed to determine the percentage of fault, if any, properly allocable to Plaintiff and to the underinsured motorist under Florida’s comparative fault approach. See Fla. Stat. § 768.81 (3)....

...empts. The trial court did not err in denying the Board’s motion for judgment as a matter of law. IV. In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), the Supreme Court of Florida held that Florida’s comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), requires fault to be “apportioned among all responsible entities who contribute to an accident even though not all of them have been joined as defendants.” 18 Nash v....

...the dangers of touring in certain areas of Miami, especially with a Rent-A-Car bumper sticker, and should have warned the plaintiffs of the danger. Id. Discussing Florida’s comparative fault statute, the court held that the unmistakable intent of section 768.81 was to limit a defendant’s liability to only his percentage of “fault.” The court looked to the dictionary definition of fault, and found nothing to suggest that intentional actors should be excluded from the blameworthy individuals who are supposed to share liability under section 768.81....

...The plaintiff filed suit against Burger King, claiming that the restaurant had negligently failed to protect her, as a business invitee, from the reasonably foreseeable intentional attack of a third party. Id. The trial judge determined that the plaintiff’s claim was governed by section 768.81, and consequently requested the jury to apportion fault between Kidd and Burger King....

...ng 20% responsible. Id. On appeal, the Fourth District Court of Appeals reversed. The Fourth District could not reconcile Burger King’s duty to protect the plaintiff from foreseeable intentional assaults with Burger King’s assertions that, under section 768.81, it was entitled to diminish or defeat its liability for the breach of that duty by transferring liability to the very intentional actor it was charged with protecting the plaintiff from: If the likelihood that a third person may act i...

...While we could make a guess as to which of these approaches is the proper one, we think the more prudent course is to submit the issue to the Florida Supreme Court. Accordingly, we respectfully certify the following question of law to the Supreme Court of Florida: Does Florida’s comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of “fault” between both negligent and intentional tortfeasors? Our statement of the question is not meant to limit the scope of inquiry by the Supreme Court, of Florida: “ ‘[T]he particular...

...route to or from school or is presumed by law to be attending school. Fla. Stat. ch. 232.25 (1989) (amended 1995 & 1996). . The School Health Services Act was also in effect at the time of Shawn’s death. Fla. Stat. ch. 402.32 (1989). . Chapter 768.81 provides: (3) Apportionment of Damages....

...and not the concluso-ry terms used by the parties. (b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, [or] to any action based upon an intentional tort.... Fla. Slat. Arm. § 768.81(3), (4) (West 1997 Supp.)....

FAY, Circuit Judge: Following oral argument in this case, we certified the following question of law to the Florida Supreme Court: Whether the interpretation of Fla.Stat. § 768.81(3) requires consideration by the jury of a non-party’s comparative fault in order to determine a party’s liability? Fox v....

...other type of conduct) ]; and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 401.22Í See F.S. 768.81 (1993); Fabre v....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so that the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases....

...The trial court also found that the right of contribution exists only in favor of a tortfeasor who has paid more than its pro rata share of common liability and that the third-party complaint failed to state a cause of action for contribution as a matter of law. Section 768.81, the Uniform Contribution Among Tortfeasors Act, was in effect at the time of the trial court's ruling and is still in effect....

...ed. That section now provides that in negligence cases such as this one, the court shall enter judgment against each party liable on the basis of such party's percentage of fault "and not on the basis of the doctrine of joint and several liability." § 768.81(3). In order to allocate any fault to a nonparty, a defendant must affirmatively plead this fault and prove it at trial "by a preponderance of the evidence." § 768.81(3)(a) & (b)....

...d not be a named party. T & S has the *413 opportunity to plead that Wink is partially or completely at fault and the cause of the plaintiffs' injuries. The evidence would presumably be the same whether presented in this case under the provisions of section 768.81(3) or in an action brought under the Uniform Contribution Among Tortfeasors Act. The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that T & S will be required to pay more than its pro rata share of any common liability. While the cases cited in this opinion may not have been overruled by the enactment of the current version of section 768.81, they appear to have been rendered obsolete, at least in cases like this one....

...First, they argue that Florida’s comparative-fault statute mandates a reduction according to the jury’s determination of Burkhart’s comparative negligence. 32  Case: 14-14708 Date Filed: 03/07/2018 Page: 33 of 45 The statute, Fla. Stat. § 768.81, mandates comparative-fault reduction in negligence and products-liability actions but does not apply “to any action based upon an intentional tort.” Id. § 768.81(3)–(4) (emphasis added)....

...r. 403.16 ISSUES ON CRASHWORTHINESS AND “ENHANCED INJURY” CLAIMS (RESERVED) NOTES ON USE FOR 403.16 In 2011, the legislature amended F.S. 768.81 to state that in a products liability case in which the plaintiff claims that a defect in the product increased the injury, the defendant should be treated the same as all other defendants for the purposes of apportionment of fault....

...whether that [negligence] [fault] [responsibility] [(specify other type of conduct)] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 403.18e See F.S. 768.81; Fabre v....

...upon the amount of damages received in settlement from other jointly or severally liable tortfeasors. [4] More importantly, this case raises the *657 question of the effect, if any, upon the applicability of these statutes created by the adoption of section 768.81(3), which provides for the apportionment of damages based upon each party's percentage of fault, and not on the basis of joint and several liability. [5] TMRMC urges that notwithstanding the abolition of joint and several liability accomplished by section 768.81 (except as to economic damages, with respect to a defendant whose percentage of fault equals or exceeds that of the claimant), the other previously existing statutory provisions still require a setoff or reduction in the amount of the...

...d the Third District's decision in Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992) ( Fabre I ), and approved the ruling of the Fifth District in Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1992). In Fabre II, the court found that section 768.81(3), Florida Statutes (1991), is unambiguous; that by its terms the statute requires entry of judgment against each party liable based upon their percentage of fault; and further, that the only means of determining a party's percentage...

...ned liability of a non-settling defendant, the amount of the judgment should be reduced by sums paid in return for a release from liability by settling parties. Nevertheless, the court expressed a belief that any conflicts or inconsistencies between section 768.81(3) and other statutes could be harmonized; and in event they cannot be harmonized, the court said, then the issue must be resolved by application of the legislative directive appearing in section 768.71(3) which states that in event of...

...ply." From these and other expressions of the court in its Fabre II opinion, it is clear that the appellee's arguments, both here and in the lower court, that the setoff provisions do not survive the abolition of joint and several liability found in section 768.81(3), must yield to the contrary legislative intent expressed in section 768.71(3). Should there remain any doubt as to the applicability of the setoff provisions in the light of section 768.81(3), we find such doubt eliminated by reference to footnote 3 of the Fabre II opinion, which we think can be best explained here by quoting in its entirety: Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages....

...We are unable to determine from the Fabre II opinion whether any of the arguments briefly outlined above were addressed to the court. We find it highly unlikely, however, given the Fabre II court's carefully drafted interpretation and discussion of section 768.81(3), that the court overlooked any of these arguments, if made, or if not made, that a different result would have been reached if they had been made....

...in Florida, and that it is likely to arise with such frequency as to justify a direct ruling by our highest court. Therefore, we certify as one of great public importance the following questions: (A) IS A NON-SETTLING DEFENDANT IN A CASE TRIED UNDER SECTION 768.81(3) ENTITLED TO SETOFF OR REDUCTION OF HIS APPORTIONED SHARE OF THE DAMAGES, AS ASSESSED BY THE JURY, UNDER THE PROVISIONS OF SECTIONS 768.041(2), 46.015(2) OR 768.31(5)(a), BASED UPON SUMS PAID BY *660 SETTLING DEFENDANTS IN EXCESS OF...

...ce with this opinion. ALLEN and MICKLE, JJ., concur. NOTES [1] The parties agreed at trial that the jury would be instructed to render a verdict as to each party according to such party's percentage of fault. The case was thus tried in conformity to section 768.81(3), Florida Statutes (1991)....

...y or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and, [5] Section 768.81(3), Florida Statutes, reads: (3) APPORTIONMENT OF DAMAGES....

...Garrote, 920 So.2d 1168 , 1171 n. 2 (Fla. 3d DCA 2006) (holding that trial court should have allowed a defendant leave to amend its answer to add a Fabre defendant who was the co-defendant who had just been dismissed from the suit, saying “[sjection 768.81(3)(d) of the Florida Statutes requires a defendant seeking to impute fault to a negligent non-party to plead such a defense.” (emphasis added))....

...iated when the trial judge on remand addresses Mr. Claudio’s counterclaim in the ordinary processes of the court. We anticipate that one or more hearings will be necessary to effect a mini-trial of the counterclaim. C. The Statutory Requirement of Section 768.81 That Reduces Mr. Claudio’s Liability We note before continuing our discussion, and as Mr. Claudio has hastened to point out to us, that this case presents no conflict between section 768.20 and section 768.81....

...We adhere to the proviso of section 768.20 because our disposition does not in any manner reduce the award to Mr. Regalado, the other and non-negligent statutory survivor of the decedent, Ismelys. 11 Our disposition only reconfigures the apportionment of Mr. Regalado’s award to the negligent parties. Section 768.81(3) is the guide to setting the parameters of Mr....

...The district court concluded that Metro-Dade could not be responsible for that part of the father’s award that was attributable to the aunt. 701 So.2d at 420 . But the district court went on to explain that because section 768.20 had priority over section 768.81 where the two conflict, as it did in relation to the father’s award, the father’s award could not be reduced because of the mother’s negligence and “[ljikewise, the provisions of section 768.81 that eliminate joint and several liability do not apply.” Id....

...egligent parent’s award. 14 This must be *459 done to fully compensate Mr. Regalado and avoid Mr. Claudio’s paying more than his 50% liability. Similarly in Gurney, 588 So.2d 244 , the Fourth District discussed the proper application of sections 768.81, 768.31, and 768.20....

...It does not appear from our reading of Frazier that the child’s aunt was a named party; she may have been a Fabre defendant because she was not a named appellee. . The Third District's calculations were the following: As the starting point, the father must receive the full $100,000 the jury awarded him. Section 768.81 controlled as between Metro-Dade and the aunt in relation to the father’s award, because she was not a statutory survivor, so Metro-Dade should not be responsible for her part (39.5% or $39,500) of the father’s award, leaving Metro-Dade responsible (as a preliminary calculation) for the remainder, or $60,500....

...Mr. Hudson and $25,000 by Mrs. Hudson. Although the opinion is silent as to whether there was any issue regarding this $50,000 judgment in favor of Mr. Moss, it is clear that no change was needed due to the application of the comparative fault act, section 768.81, Florida Statutes (1993)....

...Claudio was attempting and was precluded from pleading a counterclaim against the plaintiff in his suit. Cf. Zurich Am. Ins. Co. v. Hi-Mar Specialty Chems., LLC, 2010 WL 298392 , at *4 (S.D.Fla. Jan. 19, 2010) (interpreting T & S Enterprises to mean that "the current version of section 768.81 appears to have ‘rendered obsolete’ prior case law that a defendant could file a third-party claim against another in the same case brought by the plaintiff, even though the liability of the third-party plaintiff had not yet been e...

...ault had to be imputed to Sindoni, leaving Sindoni 70% at fault. Long and Irving, additionally, argued that because Sindoni should be apportioned 70% of the fault, none of the defendants were jointly and severally liable for the damages, pursuant to section 768.81(3)(c), Florida Statutes (1999)....

...patrons ended by one of them falling on Appellant, knocking her to the floor. Appellant asserts error in the trial court’s allowing Appellee to add the unidentified non-party tortfeasors to the jury instructions and verdict form. We recognize that section 768.81, Florida Statutes, governing apportionment of liability, provides that it does not apply “to any action based on an intentional tort.” However, we need not address whether the intentional tort exception applies in this instance, as the jury returned a verdict finding no negligence on the part of Appellee....

...The Legislature thereafter amended the comparative fault statute to require the jury, “in a products liability action,” to “consider the fault of all persons who contributed to the accident when apportioning fault.” Ch. 2011-215 § 1, Laws of Florida (codified at § 768.81(3)(b), Fla....

...e fault statute. However, Florida appellate courts that have had the opportunity to address the issue directly have concluded that the comparative fault statute did not legislatively overrule Stuart. See, e.g., Caccavella, 814 So.2d at 1149 (holding § 768.81, Fla....

...for which several may be responsible upon only one of those at fault." Id. at 391. Interestingly, Florida's comparative fault statute "applies to negligence cases" and "does not apply ... to any action based upon an intentional tort." Fla.Stat. Ann. § 768.81(4)(a)-(b) (West 1997) Thus, the Florida legislature's decision to include the words "wilfully or wantonly" in the contribution statute, but in parentheses, might be interpreted as merely defining the word "intentionally", the only level of...

...ry to apportion fault between the nonparty and the negligent tort-feasor); Jones v. Budget Rent-A-Car Sys., Inc., 723 So,2d 401, 402 (Fla. 3d DCA 1999) (citing Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla.1997), for the proposition that section 768.81, Florida Statutes, the comparative fault statute, does not permit allocation of fault between both negligent and intentional tortfeasors and noting that the comparative fault statute does not apply to cases involving intentional conduct)....

...After a two-week trial, the jury awarded the Mejias damages in excess of $6.5 million. The jury apportioned five percent of the negligence to Mr. Mejia, ten percent to Worthington, and eighty-five percent to Sunshine Masonry. Under the applicable version of the joint and several liability statute, section 768.81, Florida Statutes (1999), Worthington was liable for ninety-five percent of the economic losses, which totaled more than $5 million....

...The trial court, of course, was simply following the law as we understood it to be correct in this district prior to Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017). See R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d at 495–96 (interpreting section 768.81 to require apportionment of comparative fault in a tobacco case because at its core it is a product liability action, and concluding “that section 768.81 cannot be avoided simply because the action includes an intentional tort”)....

...Whether a Fabre defendant should have been on the verdict form is reviewed de novo. See R.J. Reynolds Tobacco Co. v. Grossman, 96 So.3d 917, 919-20 (Fla. 4th DCA 2012). We addressed this issue in Grobman v. Posey, 863 So.2d 1230 (Fla. 4th DCA 2003), and see no reason to recede from that opinion. In Grobman , we held that “section 768.81 [the statute interpreted in Fabre ] does not require the apportionment of responsibility between a defendant whose liability is derivative and the directly liable negligent tortfeasor.” Grobman, 863 So.2d at 1236 ....

...not apportion liability as to them. Non-economic damages First, we conclude that the trial court properly determined that no setoff should be made from non-economic damages. In Wells, the supreme court reviewed the apportionment of damages statutes, section 768.81(3), Florida Statutes (Supp.1988), and Florida's setoff statutes, sections 46.015, 768.041, and 768.31. Recognizing that under section 768.81(3), each defendant is solely, not jointly, responsible for his or her share of non-economic damages, and that the setoff statutes presuppose the existence of multiple defendants jointly liable for the same damages, the court concluded that setoff statutes do not apply to non-economic damages....

...The Legislature thereafter amended the comparative fault statute to require the jury, “in a products liability action,” to “consider the fault of all persons who contributed to the accident when apportioning fault.” Ch. 2011-215 § 1, Laws of Florida (codified at § 768.81(3)(b), Fla....

...However, Florida appellate courts that have had the opportunity to address the issue directly have concluded that the comparative - 16 - fault statute did not legislatively overrule Stuart. See, e.g., Caccavella, 814 So. 2d at 1149 (holding § 768.81, Fla....

...- 33 - Id. at cmt. b. As in almost all states, this was the long-standing rule in Florida. See J. Ray Arnold Lumber Corp. v. Richardson, 141 So. 133, 135 (Fla. 1932). And, the Legislature did not change this rule when it adopted section 768.81, Florida Statutes....

...udgment 9. Because Florida generally apportions damages based upon fault rather than cause, the jury was not asked to link the initial head injury to the respective breaches of duty by the plaintiff and the initial tortfeasor. See generally § 768.81(2)-(3), Fla....

...1955 . III. Discussion A Miami-Dade County Has Adequately Pled a Claim for Contribution Blue Martini seeks to dismiss Miami-Dade County’s claim for contribution arguing that claims for contribution have become obsolete as a result of Florida Statute, section 768.81. Section 768.81(3) states that “In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” Miami-Dade County responds that section 768.81(3) does not apply to the instant action because it is not a negligence action, it is based on intentional torts....

...A review of the complaint indicates that of the fifteen counts only two are for negligence and the rest are based on intentional actions. Furthermore, the negligence claims are against Blue Martini. Thus, the Miami-Dade County’s contribution claim is not based on underlying claims of negligence. Consequently, section 768.81(3) does not apply....

...tiff "never argued to the jury or the court that the damages ... should be reduced by his [the smoker’s] portion of fault”). Accordingly, we do not reach the merits of plaintiff’s argument that reduction of the compensatory damages pursuant to section 768.81, Florida Statutes, was not appropriate as the gist of the suit is an intentional tort.

...orida’s comparative negligence law should have precluded HDR from introducing its evidence against Barnard. Florida’s comparative negligence law renders a party liable only for the share of total damages proportional to its fault. Fla. Stat. § 768.81(3)....

...The statute prescribes a limited exception to such strict liability: the plaintiff's comparative negligence."). Ms. Culp points out, correctly, that section 767.04 does not include a third-party or Fabre defense in its text. And the statute that governs allocation of fault to nonparties, section 768.81(3)(a), Florida Statutes (2016), includes the preface, "[i]n a negligence action"—which, under Florida precedent, is not the cause of action at issue here....

contributed to his own injuries. See Fla. Stat. § 768.81(2) (stating that in a civil action for damages

...*380 1982); National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063 (Fla. 3d DCA 1989). 4. In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court held that the doctrine of comparative negligence, as codified in § 768.81, Fla....

...igation.” Black’s Law Dictionary 998 (9th ed. 2009). To be sure, Florida law provides that “[i]n a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault.” Fla. Stat. § 768.81(3)....

[damage] complained of. Comment on 3.8f 1. See § 768.81, Florida Statutes (1993); Fabre v. Marin, 623

...Further, we conclude that the Kalitan court properly applied the McCall holding to personal injury medical malpractice actions and we agree with the Fourth District on this issue. B. Setoff Against Economic Damages In granting Peace River's motion for setoff, the trial court relied on section 768.81(3), Florida Statutes (2010), and D'Angelo v....

...responsible for the damages that correspond to its percentage of fault and Peace River is not entitled to a setoff based on a settlement Suarez reached with another defendant. In D'Angelo, 863 So. 2d at 314, the supreme court recognized that prior to the enactment of section 768.81, the existing setoff statutes "presuppose[d] the existence of multiple defendants jointly and severally liable for the same damages." But in 1997, Florida enacted section 768.81(3), which read as follows: APPORTIONMENT OF DAMAGES.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percenta...

...claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. -6- Thus, by enacting section 768.81, Florida "eliminate[d] joint and several liability for noneconomic damages and limit[ed] joint and several liability for economic damages." 863 So....

...settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form. Id. at 319. However, in 2006, the Florida Legislature amended section 768.81(3) and specifically deleted the provision applying joint and several liability to economic damages....

...2006-6 at 191, § 1, Laws of Fla. The current version of this subsection now reads: "[T]he court shall enter judgment against each party on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." § 768.81(3); see T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maintenance & Repair, Inc., 11 So. 3d 411, 412 (Fla. 2d DCA 2009) (recognizing that joint and several liability was eliminated in section 768.81(3))....

...decedent' was seventy percent at fault. Although there is a split of authority among the Florida district courts, this court held in R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013), that apportionment of fault is not required by section 768.81, Florida Statutes, where a jury finds—as it found at trial- here— that a defendant committed intentional torts of fraudulent concealment and conspiracy to fraudulently conceal....

...Plaintiff cross-appeals the trial court’s order reducing the compensatory damages award based on the jury’s finding that Mr. Schoeff was 25% at fault for his lung cancer. She asserts that because the jury found RJR committed the intentional tort of fraudulent concealment, section 768.81(4), Florida Statutes, barred application of Mr....

...RJR counters that the trial court correctly found Plaintiff invited the reduction and further, the substance of Plaintiff’s action was a products liability suit. Thus, RJR maintains that Plaintiff’s damages were subject to reduction under the comparative fault statute. We agree with RJR. Sections 768.81(2) and (4), Florida Statutes (1994)3, provide, in pertinent part, that in “negligence cases,” “any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an inj...

...“Negligence cases” include, but are not limited to, “civil actions for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.” § 768.81(4)(a), Fla. Stat. “In determining whether a case falls within the term ‘negligence cases,’ the court shall look to the substance of the action and not the conclusory terms used by the parties.” § 768.81(4)(a), Fla. Stat. Section 768.81 does not permit the reduction of compensatory damages by plaintiff’s comparative fault where the suit is based upon an intentional tort (“the intentional tort exception”). See § 768.81(4)(b) Fla....

...The First DCA disagreed, 3 The parties dispute which version of the statute governs: Plaintiff asserts it is the version as amended in 1992 while RJR contends it is the version as amended in 2011. Courts generally have held that the applicable version of section 768.81 is the version in effect at the time the cause of action accrued. See Basel v....

...As outlined above, Florida’s comparative fault statute provides: “In determining whether a case falls within the term ‘negligence cases,’ the court shall look to the substance of the action and not the conclusory terms used by the parties.” § 768.81(4)(a), Fla....

...In other words, the issue is whether an action comprehending one or more negligent torts actually has at its core an intentional tort by someone.’” Id. (quoting Slawson v. Fast Food Enters., 671 So. 2d 255, 258 (Fla. 4th DCA 1996)). Merrill Crossings makes it clear that section 768.81 cannot be avoided simply because the action includes an intentional tort — rather the “entire action” must be “founded on an intentional tort.” Stated another way, the entire action must have an intentional tort “at its core.” Considering the interplay between section 768.81 and an Engle progeny suit alleging causes of actions for negligence and intentional tort, the Sury court came to a decision in accord with the direction of Merrill Crossings. 118 So....

...made the elimination of joint and several liability retroactive. Appellee James T. Gelsomino was injured in 2002 and the trial and verdict was in 2014. The trial court applied joint and several liability. Therefore, the question remains: which version of section 768.81, applies—the statute passed and effective in 2002, 2006, or 2011? We find that when the legislature passed the legislation in 2011, it included language that made the abolition of joint and several liability retroactive....

...at 691. In 2006, the legislature amended the comparative fault statute to provide that “[i]n cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3), Fla....

...legislature’s inclusion of an effective date should be considered as evidence rebutting the retroactive application of that statute. Devon Neighborhood 3 Ass’n, 67 So. 3d at 196. In 2011, the legislature amended section 768.81 to include new statutory language that related in part to products liability, and to legislatively overrule D’Amario v....

...Ford Motor Co., 806 So. 2d 424 (Fla. 2001), which adopted what the Florida Supreme Court acknowledged to be a minority view. That minority view fails to apportion fault for damages consistent with Florida’s statutory comparative fault system, codified in s. 768.81, Florida Statutes, and leads to inequitable and unfair results, regardless of the damages sought in the litigation....

...vested rights. Rather, the law affects only remedies, permitting recovery against all tortfeasors while lessening the ultimate liability of each consistent with this state’s statutory comparative fault system, codified in s. 768.81, Florida Statutes....

...State Constitution and the Constitution of the United States. Ch. 2011-215, §§ 2-3, Laws of Fla. In this case, it is uncontested that at the time of appellee’s injury and the subsequent complaint, the statute in force was the 1999 version of section 768.81....

...of Cty. Comm’rs, 442 So. 2d 1050, 1052 (Fla. 1st DCA 1983) (stating that an enrolled act is generally the best evidence of the law in a period between enactment and official adoption of statutes). The enacting legislation for the 2011 amendment to section 768.81 stated that the act was retroactive and the entire amended statute should be applied retroactively....

...D’Amario, section 3 must have independent significance. The plain language of section 3, which states that “[t]his act is remedial in nature and applies retroactively,” informs our decision. (emphasis added). Section 3 clearly applies to the entire statute, section 768.81. We are also persuaded by Schoeff v....

...intentional relinquishment of a known right.” Hiott, 129 So. 3d at 479 (quoting Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n.12 (Fla. 2001)). However, courts apply a de novo standard when considering the apportionment of damages under section 768.81(4), Florida Statutes (2011)....

...This appeal followed. In Schoeff, the plaintiff cross-appealed the trial court’s order reducing the compensatory damages award based on the plaintiff’s comparative fault. 178 So. 3d at 492. The plaintiff alleged that fraudulent concealment was an intentional tort, and comparative fault was barred under section 768.81(4). Id. There, Reynolds countered that the trial court correctly applied comparative fault. Id. This court held, “Section 768.81 does not permit the reduction of compensatory damages by plaintiff’s comparative fault where the suit is based upon an intentional tort (‘the intentional tort exception’).” Id. In its analysis of Reynolds’ claim that the...

...at 495. Under such circumstances, this court found that “reversing would unfairly allow the plaintiff to ‘have it both ways.’” Id. This court also discussed the “applicability of the comparative fault intentional tort exception to this suit.” Id. We stated that “section 768.81 cannot be avoided simply because the action includes an intentional tort— rather the ‘entire action’ must be ‘founded on an intentional tort.’” Id. Therefore, “at its core, Plaintiff’s suit is a products liability suit...

PER CURIAM. Affirmed. § 766.102(2), Fla. Stat. (2003); § 768.81(3)(6), Fla....

...The supreme court’s holding in Fabre , recognizing the abrogation of joint and several liability, along with the fact that the Yablons have waived a claim to economic damages, are sufficient to show this lack of prejudice. Fabre involved the interpretation of section 768.81(3), Florida Statutes (Supp.1988), which provides in pertinent part: (3) Apportionment of damages....

...In a negligence action not founded on an intentional tort, “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” § 768.81(2), Fla....

...MPLOY REASONABLE SECURITY MEASURES, WITH SAID OMISSION RESULTING IN AN INTENTIONAL, CRIMINAL ACT BEING PERPETRATED UPON THE PLAINTIFF BY A NON-PARTY ON PROPERTY CONTROLLED BY THE DEFENDANTS, AN “ACTION BASED UPON AN INTENTIONAL TORT” PURSUANT TO SECTION 768.81(4)(b), FLORIDA STATUTES (1993), SO THAT THE DOCTRINE OF JOINT AND SEVERAL LIABILITY APPLIES? IN SUCH AN ACTION, IS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCLUDE AN INTENTIONAL, CRIMINAL NON-PARTY TORTFEASOR FROM THE VERDICT FORM?...

...District Court of Appeal in Main Street Entertainment, Inc. v. Faircloth, 342 So. 3d 232 (Fla. 1st DCA 2022). There the district court passed on and certified the following question as one of great public importance: Whether the comparative fault statute, section 768.81, Florida Statutes, applies to tort actions involving the dram-shop exception contained in section 768.125, Florida Statutes, against a vendor who willfully and unlawfully sold alcohol to an underage patron, resulting in the patron’s intoxication and related injury? Id. at 249.  To unpack the certified question, we note that section 768.81 1 says that percentage-of-fault-based liability, rather than joint and several liability, governs a “negligence action.” § 768.81, Fla....

...Without approving all the district court’s reasoning, we agree that the answer to the certified question is yes: the action permitted by the underage drinker exception in section 768.125 is a negligence action for purposes of the comparative fault statute, section 768.81. I Late one night in November 2014, a speeding pickup truck struck 18-year-old Jacquelyn Faircloth as she crossed a street on foot....

...Cantina 101 had defaulted and did not appear at trial. Over a dissent, the First District reversed the judgment on appeal. The district court held that the trial court should have allowed Potbelly’s to assert a comparative fault defense under section 768.81....

...iminated the preexisting negligence cause of action and replaced it with something other than a negligence action. The negligence label matters, of course, because the guardianship seeks to avoid the application of the comparative fault statute, section 768.81(3). That statute says: “In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3), Fla. Stat. It “does not apply . . . to any action based upon an intentional tort.” § 768.81(4), Fla. Stat. Under the comparative fault statute, a “negligence action” includes “a civil action for damages based upon a theory of negligence.” § 768.81(1)(c), Fla....

...That is negligence, not an intentional tort. III Our answer to the certified question is yes: the action permitted by the underage drinker exception in section 768.125 is a negligence action for purposes of the comparative fault statute, section 768.81....

...apportion fault on a percentage basis thereby allowing for meaningful comparison of analogous types of negligent conduct.” Faircloth, 342 So. 3d at 240 (Makar, J., dissenting) (emphasis added). In 1986, the Florida Legislature codified the comparative fault statute at section 768.81, Florida Statutes....

...willfully and unlawfully furnished alcoholic beverages to Devon Dwyer, knowing him to be a minor.” (Emphasis added.) The complaint does not allege a negligent act. “[T]he ‘substance’ of the claim is intentional misconduct.” Id. at 241 (quoting § 768.81(1)(c), Fla....

...Because the substance of the claim against Potbelly’s is based on intentional tortious misconduct, the trial court correctly ruled that Florida’s comparative negligence statute—by its own terms—is inapplicable. Id. at 248 (quoting § 768.81, Fla....

...limited its recovery to 41% of its damages. As subrogee of S&S, AHA claims that, because S&S was only vicariously liable for the collision, the district court erred in applying Florida comparative fault principles, as enunciated in Florida Statute § 768.81, to reduce the proven damages. AHA contends that § 768.81 applies solely to parties who are directly negligent, and that a party who is only vicariously liable cannot have fault apportioned to him under § 768.81....

...The district court granted the motion. The court ruled that the subrogee AHA could recover only 41% of the damages that it had proven were incurred by S&S because Rountree’s fault (59%) was to be apportioned to S&S, and hence to AHA, under Florida Statute § 768.81. Rountree’s fault was apportioned to the subrogee AHA under § 768.81 because S&S had been held vicariously liable for, and thus had been imputed with, Rountree’s negligence under the inherently dangerous work doctrine. Not only was S&S legally obligated to pay damages owed by Rountree to the collision victims, but also, through AHA, it was to have its own damages for loss of the combustion turbine and of the enclosure reduced under § 768.81 in proportion to Rountree’s negligence. Upon reaching this conclusion regarding the application of § 768.81, the district court, having ruled already that Rountree’s liability to AHA 21 KUA and FMPA enjoyed an identity of interest with the Rail Companies over the damages awarded to AHA because the district court previously had held that KUA and FMPA had to indemnify the Rail Companies....

...45 was limited to $1,000,000,22 entered judgment against the Rail Companies jointly and severally for the remaining $851,822.40. In discussing the district court’s conclusion, we turn first to Florida Statute § 768.81, entitled “Comparative Fault.” The section states that “any contributory fault chargeable to the claimant diminishes proportionally the amount awarded as economic . . . damages for an injury attributable to the claimant’s contributory fault.” Fla. Stat. Ann. § 768.81(2) (West 1997).23 The section further provides that “[t]he court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3). AHA’s primary assertion is that the district court improperly treated vicarious liability as synonymous with the word “fault” in § 768.81, given that “fault,” in AHA’s view, means direct negligence....

...Wells Fargo Guard Servs., Inc., 678 So. 2d 22 AHA does not challenge the district court’s determination that it could recover no more than $1,000,000 from Rountree. 23 In its appellate brief, AHA references Florida Statutes Annotated § 768.81 (West 1997) as the version of the section applicable to this case. This version was last amended in 1992, before the turbine collision occurred. The Florida legislature amended § 768.81 in 1999, before the damages trial over AHA’s damages took place. See Fla. Stat. Ann. § 768.81 (West Supp. 2002)....

...AHA also notes that in this case, the district court specifically stated that S&S is an “innocent part[y] who [i]s vicariously liable for damages which are wholly the fault of Rountree.” R100-1979-22 n.17. As a consequence of such case law, AHA concludes that when Florida Statute § 768.81(3) states that damages are to be apportioned based on a party’s “percentage of fault,” it means based on a party’s direct negligence, not on a party’s status or relationship with another party. Fla. Stat. Ann. § 768.81(3); see also Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993), overruled in part on other grounds, Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So. 2d 249 (Fla. 1995) (“We conclude that [§ 768.81] is unambiguous....

...By its clear terms, judgment 47 should be entered against each party liable on the basis of that party’s percentage of fault.”) (emphasis added). Indeed, AHA indicates that at least one Florida appellate panel has interpreted Fabre as equating fault under Florida Statute § 768.81 with direct negligence. See Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 20 (Fla. Dist. Ct. App. 1996), aff’d sub nom., Merrill Crossing Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997) (stating that, in addressing § 768.81, the Fabre court “equated a defendant’s fault with the amount of its negligence”) (quotations omitted). The essence of AHA’s contention, therefore, is both that Florida law consistently has drawn a sharp distinction between vicarious liability and fault, and that this same distinction should be recognized in the application of Florida Statute § 768.81, which refers only to fault and never specifically mentions vicarious liability. Additional arguments can be made in favor of AHA’s position. AHA claims that a vicariously liable party cannot be said to have contributed to, or to have participated in, the accident at issue in a given torts case. But the Fabre court stated that apportionment of damages under § 768.81 is between “participants to the accident.” Fabre, 623 So....

...Furthermore, one can argue that a vicariously liable party is not a joint or concurrent tortfeasor, given that such a party is being held liable solely for the conduct of another. Some 48 Florida cases, however, have indicated that § 768.81 only applies to joint or concurrent tortfeasors....

...2d __ (Fla. November 21, 2001) (No. SC95881, SC96139) (per curiam) (holding that, in a crashworthiness case between a car accident victim and an automobile manufacturer, the third-party driver responsible for the initial collision cannot have fault apportioned to him under § 768.81 because the third-party driver and manufacturer are not joint or concurrent tortfeasors ); Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So. 2d 520, 524-25 (Fla. Dist. Ct. App. 1999) (stating that, in an action between an injured party and an initial tortfeasor, a health care provider who aggravates the initial injury cannot have fault apportioned to him under § 768.81 because the physician and initial tortfeasor are successive, rather than joint, tortfeasors). In sum, AHA’s assertion is that a party who is only vicariously liable cannot have another’s fault apportioned to him under § 768.81, which AHA argues only applies to parties who are directly negligent, who actively participate in the accident at issue, or who constitute joint or concurrent tortfeasors. The subrogee AHA therefore contends that it should be able to recover all of the damages that it had proven were incurred by S&S without having Rountree’s negligence apportioned to it under § 768.81. This interpretation of § 768.81 would not harm 49 the C.F....

...us liability for Rountree’s negligence. Moreover, irrespective of the outcome here, AHA points out that, should Rountree seek to recover its own damages from the C.F. Appellees, Rountree still would be required to have its damages reduced under § 768.81 as a result of its direct negligence in causing the turbine collision. The C.F. Appellees raise several rebuttal arguments. They too focus on the precise wording of § 768.81. The C.F. Appellees note that under § 768.81(2), any contributory fault that is “chargeable to the claimant” has the effect of diminishing his or her damages “for an injury attributable to the claimant’s contributory fault.” Fla. Stat. Ann. § 768.81(2) (emphasis added); see also Cody v....

...1996) (noting that the doctrine of contributory fault applies “ to reduce . . . economic . . . damages by the percentage of fault which can be attributed to the plaintiff”). Terms like “chargeable” and “attributable,” in the view of the C.F. Appellees, indicate that the meaning of “fault” for purposes of § 768.81 goes beyond direct negligence. Furthermore, § 768.81(4)(b) lists several situations where comparative fault does not apply, such as where liability is “based upon an intentional tort,” but the list does not include situations where liability is based upon vicarious liability. Fla. Stat. Ann. § 50 768.81(4)(b). Based on this statutory language, the C.F. Appellees have a basis for arguing that the district court did not overreach by treating S&S’s vicarious liability as within the ambit of the term “fault” found in § 768.81. In addition to arguing that their position synchronizes with the statutory language of § 768.81, the C.F....

...gh AHA, is the plaintiff. Finally, the C.F. Appellees turn to distinguishing the cases relied on by 51 AHA, including Fabre, Nash, and Walmart. They contend that Fabre only held that in enacting § 768.81, the Florida legislature intended for all joint or concurrent tortfeasors who cause an accident to be included in the apportionment of fault for that accident, even those tortfeasors who are non-parties to the suit. Fabre, 623 So. 2d at 1185. Fabre never indicated that fault under § 768.81 can only mean direct negligence, the C.F....

...the active tortfeasor’s negligence for purposes of reducing its own damages recovery. Finally, the C.F. Appellees point out that Walmart held that a non-party intentional tortfeasor should not be included on the verdict form for purposes of apportioning fault under § 768.81....

...They claim that 52 Walmart is not relevant to the vicarious liability context because the case focuses exclusively on the interaction between intentional torts and comparative fault. Unfortunately, there is no easy method for resolving the conflicting interpretations of § 768.81 and of Florida precedent provided by AHA and the C.F. Appellees....

...Brooks & Son, Inc. v. Quiroz, the Florida appellate court stated that when the named defendant’s “liability for the accident was purely vicarious in nature . . . it is obvious, contrary to the ruling below, that the comparative fault statute, section 768.81 ....

...1998). Brooks, however, held only that a vicariously liable party is entitled to a complete set off as to settlement amounts paid to the plaintiff by the active tortfeasor. Id. The case was about the interaction between Florida set-off statutes and § 768.81, a different subject than the one addressed in the present litigation. We therefore are hesitant to interpret broadly the language of the opinion concerning the interaction between vicarious liability and § 768.81. Similarly, in Suarez v....

...ween two parties even though the liability of the two should be coextensive. As with Brooks, we refrain from broadly analogizing Suarez to the present case. It therefore is clear that existing Florida case law does not resolve the question of how § 768.81 is to be interpreted with regard to vicarious liability. Both sides in the present case have good arguments for their respective interpretations of § 768.81, and the issue is one upon which reasonable persons can disagree. Having concluded that the comparative fault issue raised here involves an unanswered question of Florida law that is not specifically addressed by controlling state precedent, we certify the following question of law to the Supreme Court of Florida for instructions: SHOULD A VICARIOUSLY LIABLE PARTY HAVE THE NEGLIGENCE OF THE ACTIVE TORTFEASOR APPORTIONED TO IT UNDER FLORIDA STATUTE § 768.81 SUCH THAT RECOVERY OF ITS OWN DAMAGES IS REDUCED CONCOMITANTLY? 54 If the Florida Supreme Court decides to accept this certification, we note that the phrasing of the question is not meant...

...AHA argues that the court erred in this regard. We review the district court’s decision on whether to award prejudgment interest for abuse of discretion. Insurance Co. of 24 As we already noted, the parties dispute which version of Florida Statute § 768.81 applies to this case. If the Florida Supreme Court decides that a vicariously liable party should have the active tortfeasor’s fault apportioned to it under § 768.81, then it is clear under both versions of the section that the Rail Companies cannot be held jointly and severally liable for AHA’s damages. See Fla. Stat. Ann. § 768.81(3) (West 1997); § 768.81(3)(c) (West Supp. 2002)....

...Under the earlier version cited by AHA, “with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.” Fla. Stat. Ann. § 768.81(3) (West 1997)....

...Under this version, both of the Rail Companies would be jointly and severally liable for AHA’s damages because the direct negligence of CSX (33%) and Amtrak (8%) would exceed the direct negligence of S&S (0%), and therefore of AHA. Yet, under the later version of § 768.81 that FMPA argues should apply, “[a]ny defendant found 10 percent or less at fault shall not be subject to joint and several liability.” § 768.81(3)(b)(1) (West Supp....

...rtified question. Otherwise, we would run the risk that our decision on the issue would become moot, in the event that the Florida Supreme Court decides that a vicariously liable party should be apportioned the active tortfeasor’s negligence under § 768.81. 55 North America v....

...We have decided, however, to certify one of the issues raised by AHA to the Florida Supreme Court for review. The issue concerns the 81 interrelationship between vicarious liability and comparative fault under Florida Statute § 768.81....

...The trial court did not err in denying the Board’s motion for judgment as a matter of law. IV. In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla. 1993), the Supreme Court of Florida held that Florida’s comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), requires fault to be “apportioned among all responsible entities who contribute to an accident even though not all of them have been joined as defendants.”18 Nash v. Wells Fargo Guard Servs., 678 So.2d 1262, 18 Chapter 768.81 provides: (3) Apportionment of Damages.— In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability....

...(b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, [or] to any action based upon an intentional tort. . . . Fla. Stat. Ann. § 768.81(3), (4) (West 1997 Supp.). 19 The first Judgment entered in this case was awarded to “Carol Wyke, as Personal Representative of the Estate of Shawn David Wyke.” R3-134....

...s of touring in certain areas of Miami, especially with a Rent-A-Car bumper sticker, and should have warned the plaintiffs of the danger. Id. Discussing Florida’s comparative fault statute, the court held that the unmistakable intent of section 768.81 was to limit a defendant’s liability to only his percentage of “fault.” The court looked to the dictionary definition of fault, and found nothing to suggest that intentional actors should be excluded from the blameworthy individuals who are supposed to share liability under section 768.81....

...The plaintiff filed suit against Burger King, claiming that the restaurant had negligently failed to protect her, as a business invitee, from the reasonably foreseeable intentional attack of a third party. Id. The trial judge determined that the plaintiff’s claim was governed by section 768.81, and consequently requested the jury to apportion fault between Kidd and Burger King....

...Id. 28  On appeal, the Fourth District Court of Appeals reversed. The Fourth District could not reconcile Burger King’s duty to protect the plaintiff from foreseeable intentional assaults with Burger King’s assertions that, under section 768.81, it was entitled to diminish or defeat its liability for the breach of that duty by transferring liability to the very intentional actor it was charged with protecting the plaintiff from: If the likelihood that a thir...

...nk the more prudent course is to submit the issue to the Florida Supreme Court. Accordingly, we respectfully certify the following question of law to the Supreme Court of Florida: Does Florida’s comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of “fault” between both negligent and intentional tortfeasors? Our statement of the question is not meant to limit the scope of inquiry by the Supreme Court of Florida: “‘[T]...

...The trial court did not err in denying the Board's motion for judgment as a matter of law. IV. In Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993), the Supreme Court of Florida held that Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), requires fault to be "apportioned among all responsible entities who contribute to an accident even though not all of them have been joined as defendants."18 Nash v....

...mount of $500,000, and attributing 33% of the fault to the School Board, 32% to Wyke, and 35% to Schmidt. The court entered a $165,000 judgment in favor of Wyke,19 that being the portion of the total damage award attributed 18 Chapter 768.81 provides: (3) Apportionment of Damages.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and...

...(b) This section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, [or] to any action based upon an intentional tort.... Fla. Stat. Ann. § 768.81(3), (4) (West 1997 Supp.). 19 The first Judgment entered in this case was awarded to "Carol Wyke, as Personal Representative of the Estate of Shawn David Wyke." R3-134....

...ers of touring in certain areas of Miami, especially with a Rent-A-Car bumper sticker, and should have warned the plaintiffs of the danger. Id. Discussing Florida's comparative fault statute, the court held that the unmistakable intent of section 768.81 was to limit a defendant's liability to only his percentage of "fault." The court looked to the dictionary definition of fault, and found nothing to suggest that intentional actors should be excluded from the blameworthy individuals who are supposed to share liability under section 768.81....

...The plaintiff filed suit against Burger King, claiming that the restaurant had negligently failed to protect her, as a business invitee, from the reasonably foreseeable intentional attack of a third party. Id. The trial judge determined that the plaintiff's claim was governed by section 768.81, and consequently requested the jury to apportion fault between Kidd and Burger King....

...responsible. Id. On appeal, the Fourth District Court of Appeals reversed. The Fourth District could not reconcile Burger King's duty to protect the plaintiff from foreseeable intentional assaults with Burger King's assertions that, under section 768.81, it was entitled to diminish or defeat its liability for the breach of that duty by transferring liability to the very intentional actor it was charged with protecting the plaintiff from: If the likelihood that a third person...

...hink the more prudent course is to submit the issue to the Florida Supreme Court. Accordingly, we respectfully certify the following question of law to the Supreme Court of Florida: Does Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of "fault" between both negligent and intentional tortfeasors? Our statement of the question is not meant to limit the scope of inquiry by the Supreme Court of Florida: " "[T]he particular...

...PER CURIAM: In our earlier opinion in this matter, Wyke v. Polk County Sch. Bd., 129 F.3d 560 (11th Cir.1997), we certified the following question to the Supreme Court of Florida: Does Florida's comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of "fault" between both negligent and intentional tortfeasors? Following our certification the Supreme Court of Florida decided the cases of Merrill Crossings Assoc....

...verdict form. That court ruled that the jury could not apportion liability to Shawn since he had not committed a negligent act but rather an intentional one (suicide). This ruling was in accord with what is now the clear law of Florida under Florida Statute § 768.81. Having resolved all the issues presented in these matters, the judgment of the district court is affirmed. AFFIRMED. 

...PER CURIAM: In our earlier opinion in this matter, Wyke v. Polk County Sch. Bd., 129 F.3d 560 (11th Cir. 1997), we certified the following question to the Supreme Court of Florida: Does Florida’s comparative fault statute, Fla. Stat. Ann. § 768.81 (West 1997 Supp.), require the allocation of “fault” between both negligent and intentional tortfeasors? Following our certification the Supreme Court of Florida decided the cases of Merrill Crossings Assoc....

...form. That court ruled that the jury could not apportion liability to Shawn since he had not committed a negligent act but rather an intentional one (suicide). This ruling was in accord with what is now the clear law of Florida under Florida Statute § 768.81. Having resolved all the issues presented in these matters, the judgment of the district court is affirmed. AFFIRMED. 2 3 

...2 1 The district court determined that Florida law governed Nice’s negligence claim, and that Florida’s comparative fault doctrine would allow the defendants to attempt to shift some or all of the fault to the Navy. See Fla. Stat. § 768.81(3)(a). 2 The district court found that its order involved a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b)....

...Thermoset at risk of receiving inadequate relief. Florida is not a joint-and-several liability state. Under Florida law, a defendant in a product liability action (like GAF) is liable only for the amount of damages proportional to its percentage of fault. See Fla. Stat. § 768.81(3)....

...In a negligence action not founded on an intentional tort, “contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” § 768.81(2), Fla....

...The jury was asked to determine which driver, if either or both, was negligent in causing that collision. The jury did so. The fact that Schultz settled with the one the jury found most negligent is of no moment. We do agree with Schultz, however, that since the total judgment was under $25,-000, section 768.81(5), Florida Statutes, requires that the entire award be “joint and several.” The judgement, therefore, after deducting the $1,000 settlement from Keim, should be in Schultz’s favor in the amount of $4,000....

BARKDULL, Judge. The first question raised in this appeal is whether or not Florida’s comparative negligence statute, § 768.81, Fla.Stat....

...refusal to impute the negligence of a parent to the child. See McDonough Power Equip. Inc. v. Brown, 486 So.2d 609 (Fla. 4th DCA 1986). The recent decision of the Florida Supreme Court in Fabre, supra, interprets the comparative negligence statute, § 768.81 *873 Fla.Stat....

...If the parents fear possible liability through contribution then it would be their decision, and not that of the child, to withhold the suit. This distinction from other tort eases, not involving minors, plays an important role in the outcome of this decision. The language of § 768.81 Fla.Stat....

...prosecution of his action, and the guardian might be deterred by the prospect of diminished recovery because of his or her own negligence. However, it would have been proper for the trial court to include Ms. Godales on the verdict form, pursuant to § 768.81(3) Fla.Stat....

...o recover only one-half of the jury’s assessed damages. We hereby certify to the Florida Supreme Court that the decision of this Court on this issue passes upon a question of great public importance concerning the interpretation and application of § 768.81 Fla.Stat....

The order before us was entered pursuant to section 768.81(3), Florida Statutes (1993), providing that

...in compensatory damages and $9 million in punitive damages. Because Brown pre- vailed on her fraud claims, the District Court did not reduce the compensatory damages award by the percentage of comparative fault attributable to Brown. See Fla. Stat. § 768.81(4) (“This section does not apply to any action ....

tortfeasor for purposes of apportioning fault under section 768.81, Florida Statutes. The trial court denied Appellants’

...Cuyahoga 60% negligent. 2 Over objection *623 by Van Antwerp, the trial court entered an $81,000 judgment against Florida Mining, which represents 30% of $270,000. In arriving at this amount, the trial court apparently relied in whole or in part on section 768.81, Florida Statutes (Supp.1986), 3 which requires the apportionment of damages based upon the respective parties’ percentage of fault. This was error. Section 768.81 applies only to causes of action arising on or after July 1, 1986....

...the issue has not been raised by either party in this appeal. We determine this deficiency not controlling in that the substantive issue of law upon which our decision is grounded has been adequately preserved and presented by the cross-appellant. . Section 768.81, Florida Statutes (Supp.1986), provides in pertinent part: (3) APPORTIONMENT OF DAMAGES....

We turn now to the issue on cross appeal. Section 768.81, Florida Statutes, abrogated the doctrine of

...We therefore must clarify that claims brought under the Act—whether under section - 22 - 556.106(2)(a) or section 556.106(2)(b)—are governed by principles of comparative fault. Florida’s comparative fault statute applies to “negligence action[s].” § 768.81(2), Fla. Stat. (2019). And that statute defines a “negligence action” to include a “civil action for damages based upon a theory of negligence.” § 768.81(1)(c), Fla....

...2d 1175, 1180 (Fla. 3d DCA 2000) (in which the plaintiff claimed that the defendants violated section 83.67, Florida Statutes (1997), and “the defendants had the burden of proving the defense of comparative negligence”). Beyond the applicability of section 768.81, we deem comparative fault to be among the background principles that inform a reasonable reading of the Act....

...member operator whose revenues are used to support payments on principal and interest on bonds may not be - 50 -  limited. Any liability by an excavator which arises herein is subject to the provisions of s. 768.81. “[A] court cannot construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications.” Casais v....

...In Grobman v. Posey, 863 So.2d 1230 (Fla. 4th DCA 2003), which also involved a settlement with an HMO in a medical malpractice action, we held that: “setoff turns on whether [the HMO] was a party defendant to which the apportionment requirement of section 768.81(3) applied. If section 768.81(3) did not apply, then ... the failure to include it on the verdict form had no legal effect.” 863 So.2d at 1233 . We went on to explain that: “To decide whether section 768.81 applies requires more than determining whether the case at hand is a negligence case. One must examine the cause of action asserted against a settling defendant to determine if section 768.81 requires apportionment of liability with another defendant. Such an inquiry asks if the settling defendant was the type of defendant that could have been added as a Fabre [v. Marin, 623 So.2d 1182 (Fla.1993) ] defendant on the verdict form.” 863 So.2d at 1234 . We further noted that section 768.81 requires apportionment of non-economic damages in cases involving joint tortfeasors, those whose independent acts unite in causing a single injury....

...liability based on the percentage of wrongful conduct attributable to each party. See id. at 437–38. Our legislature has since enacted a modified comparative negligence standard. See H.R. 837, 28th Leg., 1st Reg. Sess. (Fla. 2023) (adding subsection (6) to section 768.81, Florida Statutes (2023), to establish modified comparative negligence standard for negligence actions, effective March 24, 2023). Under the new statutory edict, a plaintiff found to be more than fifty percent at fault for his or her injury cannot recover. See § 768.81(6), Fla....

...d a part in the occurrence of the accident.”). “Obviously, this cannot be done without complete information as to the quantity, quality, nature and degree 13 The amendment excludes negligence actions sounding in medical malpractice. See § 768.81(6), Fla....

...malpractice by proving his/her care conformed to that of a “reasonably prudent” physician. § 766.102(1), Fla. Stat. (2013). A defending medical provider can also “allocate any or all fault to a nonparty” for the “purpose[] of apportioning damages.” § 768.81(3)(a)2., Fla....

...required to do so. But the nuanced question in this case is whether the defendant’s burden to prove a Fabre nonparty’s proportional fault requires him to provide expert testimony? In this case, we hold it does not. Here, the defendant argues section 768.81—which abolished joint-and- several liability—limits a defendant’s liability to damages proportionate to its “percentage of fault.” See § 768.81(3), Fla....

...or, alternatively, that the acts claimed to have been committed were not “demonstrably separable in time and effect,” both doctors being jointly responsible for the injury. Barrios v. Darrach, 629 So. 2d 211, 213 (Fla. 3d DCA 1993) (citation omitted). Section 768.81(3)(a)2....

...respectively. Triple R answered and raised the affirmative defense that the County’s damages were caused in whole or in part by the County, CH2M, URS, and BV. CH2M answered and raised the affirmative defenses that fault should be apportioned under section 768.81, Florida Statutes, to Triple R and to various nonparties, including URS and BV. The Trial A....

...ordered Triple R to pay the County $899,575.75. As for CH2M, the trial court ordered it to pay the County $899,745.45. The County appealed the final judgment. CH2M and Triple R both cross-appealed. The circuit court properly apportioned damages pursuant to section 768.81(3), Florida Statutes (2018). In its appeal, the County attacks the circuit court’s allocation of fault, which placed the bulk of responsibility on the conduct of URS....

...te breaches of contract cause a single, indivisible injury, comparative fault is inapplicable, so that the breaching parties are held jointly and severally liable for the plaintiff’s damages. We reject the County’s argument and conclude that section 768.81, Florida Statutes (2018), authorized the circuit court to allocate fault in this case. 8  Section 768.81 is contained in Part II of Chapter 768....

...specifically provided.” § 768.71(1), Fla. Stat. (2018). That provision states in full: “(1) Except as otherwise specifically provided, this part applies to any action for damages, whether in tort or contract.” Id. (emphasis supplied). Although section 768.81(3) requires apportionment of damages in “negligence” actions, section 768.81(1) defines negligence in a way that embraces the County’s action against CH2M. Subsection 768.81(1)(c) defines a “negligence action” as without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action. (Emphasis supplied). An engineer is a “professional” within the meaning of subsection 768.81(1)(c)....

...Pinellas Cty., 698 So. 2d 1238, 1240 (Fla. 2d DCA 1997). The gravamen of the County’s action against CH2M was that CH2M failed to adhere to the contractual standard of care that required it to design a taxiway in accordance with FAA standards. Under subsection 768.81(1)(c), the essence of a professional malpractice action is the breach of a standard of care, whether that standard is derived from the common law or contract....

...The crucial statutory language is this: “professional malpractice whether couched in terms of contract or tort.” Id. The County’s claims against CH2M were “couched in terms of contract” and fell within the definition of a “[n]egligence action” in the statute. 2 If the action against CH2M is a subsection 768.81(1)(c) “negligence action,” where does that leave Triple R, which is a general contractor, not a professional under that subsection? Section 768.81(3) requires a court to “enter judgment against each party liable on the basis of such party’s percentage of fault.” Applying a holistic approach to analyzing the complaint, we conclude that the contract action against Triple R fe...

...the umbrella of the “negligence action” against CH2M, so that the circuit court’s allocation of fault was appropriate. See Martinez v. Miami-Dade Cty., 975 F. Supp. 2d 1293, 1296 (S.D. Fla. 2013) (analyzing complaint in its entirety to determine whether it was a section 768.81(1)(c) “negligence action”). After all, Triple R was to perform the contract according to 2 The County relies on Bre/Cocoa Beach Owner, LLC v. Rolyn Companies, Inc., 2012 WL 12905849 (M.D. Fla. 2012), to argue that section 768.81 has no application here....

...l responsibilities was a substantial factor in causing the County’s extensive damages.” Centex-Rooney Const. Co. v. Martin Cty., 706 So. 2d 20, 25 (Fla. 4th DCA 1997). This is compatible with the concept of “fault” that is at the heart of subsection 768.81(3) and parallels the tort notion of a violation of a duty of care that is the proximate cause of damages....

...* Not final until disposition of timely filed motion for rehearing. 3 Although CH2M did not raise this issue on cross-appeal, we conclude that CH2M necessarily benefits from the reversal on this issue in Triple R’s cross- appeal. Section 768.81(3) contemplates a single damage amount to which percentages of fault are applied to craft a final judgment. 13 

response to the legislature’s amendment to section 768.81, Florida Statutes (Supp.1988), entitled “Comparative

...766, Florida Statutes. The jury found Appellant liable for damages on both counts. On the medical-malpractice issue, Mr. Barth cross appeals the trial court’s ruling designating Heartland of Orange Park as a non- party under Fabre v. Martin 1, and section 768.81(3), Florida Statutes....

...A trial court should only grant directed verdict if no evidence was presented on which the jury could rely. Id. Adding a non-party to the verdict form requires the defendant to prove by a preponderance of the evidence that the non-party’s negligence caused the plaintiff’s injury. § 768.81(3)(a)2., Fla....

...Barth’s injury or damages would have been any different without Heartland’s negligence. Thus, under Stuart, the trial court erred in allowing apportionment of damages between Specialty and Heartland, based on a lack of causation evidence. Florida’s adoption of comparative fault by statute in section 768.81, Florida Statutes, did not abrogate the Stuart rule, which states that an initial tortfeasor is liable for subsequent medical malpractice that adds new injuries or aggravates the initial injury. There is no discussion of Stuart in Fabre, and the supreme court does not reverse itself sub silentio....

...caused by Specialty, but under Stuart, Specialty is liable for all damages resulting from its negligent treatment of Mr. Barth that caused the deep-tissue pressure ulcer. Whether Heartland’s medical treatment may have exacerbated that injury is not legally relevant under Stuart. Section 768.81, Florida Statutes, which provides for the allocation of fault among joint and several tortfeasors, does not apply to independent and subsequent tortfeasors....

...Applying that standard, we held that whether conduct in the context of a tobacco action is considered negligent or intentional, comparative negligence applies. See Schoeff, 40 Fla. L. Weekly at D2480. 8  Sections 768.81(2) and (4), Florida Statutes (1992),4 provide, in part, that in “negligence cases,” the claimant’s contributory fault “diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault,” however, it does not prevent recovery. § 768.81(2), (4), Fla....

...The term “negligence cases” “includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.” Id. § 768.81(4)(a). In deciding whether a case constitutes a “negligence case,” courts must examine “the substance of the action and not the conclusory terms used by the parties.” Id. If the action is based upon an intentional tort, compensatory damages cannot be reduced by the plaintiff’s contributory fault. Id. § 768.81(4)(b). Here, the trial court remarked: If the judgment were solely being entered based on the Plaintiff’s strict liability and negligence claims, the non- economic damages would be reduced based on the jury’s comparative fault findings....

...recover her full non-economic damages without regard to comparative fault as the jury was advised. The trial court failed, however, to look to the substance of the action to determine if the claims were grounded in negligence as required by section 768.81(4)(a)....

...Schnurr’s injury. We review de novo “[w]hether a Fabre defendant should have been on the verdict form.” Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. v. Wilde, 199 So. 3d 333, 341 (Fla. 4th DCA 2016). The comparative fault statute, section 768.81, Florida Statutes, provides that “[i]n a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 4 768.81(3), Fla....

...“In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.” § 768.81(3)(a)(2), Fla....

not Florida’s comparative negligence statute, § 768.81, Fla.Stat. (1993), as recently interpreted by

...This $4,000 loss would be borne by Miss Kane rather than Commercial Carrier if the joint enterprise doctrine applied. . Although inapplicable to this case, the recent statutory limitation of joint and several liability also eliminates some of the harsher effects of that doctrine. § 768.81, Fla.Stat....

...The thirdsecond paragraph of this instruction should be used to inform the jury of the appropriate procedure, so that the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases....

...The thirdsecond paragraph of this instruction should be used to inform the jury of the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases....

...However, that finding did not affect her compensatory recovery because the jury also found Philip Morris liable on Mrs. Berger’s intentional tort claims. Under Florida law, there is no reduction to compensatory damages that result from an intentional tort. See Fla. Stat. § 768.81(4). 4  USCA11 Case: 19-14074 Date Filed: 01/19/2021 Page: 5 of 17 After the jury returned the verdict in favor of Mrs....

...ine whether Mrs. Bland owned the vehicle her husband was driving. Following the verdict, the Defendants filed a motion to reduce the award to Mrs. Bland on the theory that she was legally responsible for the comparative negligence of Mr. Bland under section 768.81, Florida Statutes (2001)....

...The hauler rig was hit by a train while it was stopped on the tracks at a railroad crossing, *1191 American Home insured the owner of the turbine engine, who had hired the hauler. The supreme court held that the activity of transporting this large engine was inherently dangerous and that the fault of the hauler under section 768.81 could be attributed vicariously to the owner, who had hired the hauler as an independent contractor. Rountree Transport is the same case on remand to the federal court. We are not aware of any case that has extended the holding in American Home to apply section 768.81 to allow a reduction in a plaintiffs damages for the plaintiffs vicarious liability as the owner of a dangerous instrumentality. Although we cannot deny the logic in the argument presented by the Defendants, we have some doubt that the legislature intended section 768.81 to work in conjunction with the dangerous instrumentality doctrine so as to cause an owner of a family automobile to have his or her damages reduced by the negligence of anyone who is driving the vehicle while the owner is a passenger. [2] Section 768.81(2) does not reference vicarious liability under the dangerous instrumentality doctrine and only reduces damages for the proportion of "fault" that is "chargeable to the claimant." In this case, however, we merely conclude that the Defe...

intended to demonstrate that our interpretation of section 768.81(3) would not lead to a double reduction in

...(providing that a person who “sells or furnishes alcoholic beverages” to an underage person “may become liable for injury or damage caused by or resulting from the intoxication” of the person). 4 There, we held 3 Apportionment of fault under the comparative fault statute does not apply to intentional torts. § 768.81(4), Fla....

...Legislature, through its adoption of pure apportionment of damages among joint tortfeasors in negligence actions, abolished sub silencio the statutory right to a setoff in negligence cases. Id. at 1054, n.1. The Legislature did no such thing. While section 768.81(3) of the Florida Statutes abolishes the doctrine of joint and several liability and requires judgments to be entered against each defendant based on the defendant’s percentage of fault (i.e., pure apportionment), the Legislature has never abolished any of the three substantive statutes that provide defendants with a right to a setoff. In fact, 18 the pure apportionment statute (section 768.81(3)) rests in Part II of Chapter 768, governing damages in negligence actions....

...Section 768.71(3) of the Florida Statutes, addressing the applicability of Part II of Chapter 768, provides that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” Ergo, to the extent section 768.81(3) conflicts with the statutory provisions establishing the substantive right to a setoff (i.e., sections 46.015(2), 768.041(2), and 768.31(5)(a)), the right to such a setoff endures. Because I find Strachan’s suggestion tha...

...whether that [negligence] [fault] [responsibility] [(specify other type of conduct)] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made). NOTE ON USE FOR 403.18e See F.S. 768.81; Fabre v....

...The “patent danger doctrine” is not an independent defense but, to the extent applicable (see note 1), it is subsumed in the defense of contributorycomparative negligence. Auburn Machine Works Inc. v. Jones, 366 So. 2d 1167 (Fla. 1979). 3. Apportionment of fault. See F.S. 768.81; Fabre v....

PER CURIAM. Affirmed. § 768.81(3), Fla....

...e terms. 2. Fla. Stat. § 768.0415 refers only to “negligence.” The committee takes no position as to whether the statute is limited to negligence cases or the definition of “negligence” in this statutory context. For example, see Fla. Stat. § 768.81 (4)(a), defining “negligence cases.” 6.2 h....

...veral may be responsible upon only one of those at fault.” Id. at 391 . Interestingly, Florida’s comparative fault statute “applies to negligence cases” and “does not apply ... to any action based upon an intentional tort.” FlaStat. Ann. § 768.81(4)(a)-(b) (West 1997) Thus, the Florida legislature’s decision to include the words “wilfully or wantonly” in the contribution statute, but in parentheses, might be interpreted as merely defining the word “intentionally”, the only...

...We affirm as to tlie issues raised in the main appeal without comment. As to the issue raised on cross-appeal, we reverse and remand with directions to the trial court to enter judgment against GACS, Inc., in the amount of $454,799.50. The plain language of section 768.81, Florida Statutes, requires that a plaintiffs percentage of contributory fault in a negligence . action be subtracted from the amount of economic damages determined by the jury, see § 768.81(2), Fla. Stat., before it is determined whether the amount of economic damages in the case exceeds the $500,000 limit for imposing joint and several liability on a defendant found at least 25 percent, but not more than 50 percent, at fault. See § 768.81(3), Fla.....

...[2] Reference to "the court" in the statutes requiring offsets does not indicate that a double recovery is appropriate if done by an arbitration panel. Wells, however, in a case in which the jury decided the percentage of fault between the defendants responsible for the damages, held that the comparative fault provisions of section 768.81(3) would apply and that there could be no offset against one tortfeasor's share of the non-economic damages for the proceeds from a settlement with another joint tortfeasor because *1046 there was no joint and several liability for non-economic damages....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so that the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of an F.S. 768.81 apportionment of liability in such cases....

...The third paragraph of this instruction should be used to inform the jury of the appropriate procedure, so the jury does not make inappropriate adjustments to its verdict. There is support for giving a special instruction explaining to the jury the impact and effect of F.S. 768.81 apportionment of liability in such cases....

defendants jointly and severally liable pursuant to section 768.81(5), Florida Statutes (1997). GROSS and TAYLOR

...Question # 1 on the verdict-form asked the jury "[wjas there negligence on the part of the defendant, Flamingo Oil Company which was a legal cause of injury to the plaintiff, Jesus Veloz?” Question # 4 requested the jury to allocate the percentages of fault for Veloz's injury between Bird Road Mazda, Veloz, and Flamingo. . Section 768.81(3) Florida Statutes (1997) provides: (3) Apportionment of damages....

...unconstitutionally impair vested rights. Rather, the law affects only remedies, permitting recovery against all tortfeasors while lessening the ultimate liability of each consistent with this state’s statutory comparative fault system, codified in s. 768.81, Florida Statutes. -8- Ch....

...of Health, 898 So. 2d 61, 64 (Fla. 2005); see also QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass’n, 94 So. 3d 541 (Fla. 2012). The comparative fault statute reduces defendants’ liability by the percentage of fault of other culpable parties. § 768.81, Fla....

...The statute provides, “In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for -9- an injury attributable to the claimant’s contributory fault, but does not bar recovery.” § 768.81(2), Fla. Stat. (2011). “Negligence action” is defined as “without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, [or] professional malpractice.” Id. § 768.81(1)(c). The intentional tort exception is codified in subsection (4) of the statute: “Applicability.-- This section does not apply . . . to any action based upon an intentional tort . . .” Id. § 768.81(4). The plain language of the comparative fault statute is unequivocal: the comparative fault statute applies to an enumerated, but not exhaustive, list of negligence claims and “does not apply ....

...Therefore, if the comparative fault statute is applied to compensatory damages in Engle progeny cases, any reduction necessarily affects - 10 - damages arising from “action[s] based upon an intentional tort” in violation of the intentional tort exception, section 768.81(4), Florida Statutes. RJR asks this Court to find that while individual intentional tort claims are exempted under subsection (4), comparative fault applies to entire cases that include both negligence and intentional tort cla...

...“action[s] based upon an intentional tort” in derogation of the intentional tort exception of subsection (4). RJR further contends that whether a case is a “negligence action” hinges on “[t]he substance of an action, not conclusory terms used by a party.” § 768.81(1)(c), Fla....

...attributed to a teaching hospital as defined in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability. § 768.81, Fla....

...t included in a list. Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976). The Legislature enumerated, “without limitation,” negligence claims which may be considered part of a “negligence action” and did not enumerate any intentional torts. § 768.81(1)(c), Fla....

...See majority op. at 8. It is immaterial “which version of the comparative fault statute controls” in this case as the intentional tort exception is substantively the same under both the 1992 and 2011 versions of the statute. Majority op. at 8; see § 768.81, Fla....

...determination of the substance of an “action,” as opposed to individual “causes of action,” the trial court properly reduced the compensatory award by the plaintiff’s percentage of fault, and the Fourth District properly affirmed as to this issue. Section 768.81, Florida Statutes, provides for a reduction in damages based upon “fault” attributable to the plaintiff in “a negligence action.” § 768.81(2), Fla. Stat. (2011) (emphasis added). The statute further defines a negligence “action” as “a civil action for damages based upon a theory of negligence, strict liability, products liability, [or] professional malpractice.” § 768.81(1)(c) (emphasis added). Comparative fault does not apply to an “action based upon an intentional tort.” § - 29 - 768.81(4) (emphasis added). And, the statute plainly directs that “[t]he substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action.” § 768.81(1)(c) (emphasis added)....

...re joined. Fla. R. Civ. P. 1.110(g). There can be no question that the Legislature was aware of our civil procedure rules when it chose its language for the comparative fault statute, because the statute itself plainly references them. See § 768.81(3)(a)1....

...(“In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault . . . in accordance with the Florida Rules of Civil Procedure.”). It is also clear that the Legislature understood the term “cause of action” because it plainly used that phrase as well. See § 768.81(4) (exempting from comparative fault several - 31 - statutory “cause[s] of action” such as those related to securities fraud, antitrust violations, and criminal racketeering laws)....

...d class pursuant to this Court’s decision in Engle). Determining the “substance” of an “action” is not a wholly unfamiliar legal concept, see, e.g., Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560, 563 (Fla. 1997) (applying section 768.81and holding that damages should not be reduced based upon plaintiff’s fault because the “the substance of this action was an intentional tort, not merely negligence”), even where multiple causes of action are alleged....

...1991) (“The gravamen of the complaint’s multiple counts was that [the defendant] had caused her husband’s death . . . .”). And, to be clear, our comparative fault statute plainly directs courts to determine whether the action is a negligence action based upon the “substance of [the] action,” § 768.81(1)(c), which is exactly what this court did in Merrill Crossings. Where a plaintiff alleges both negligence and intentional tort causes of action in the same suit and a defendant raises the plaintiff’s comparative fault in defens...

...2011-215, § 2, Laws of Fla. Ironically, the failure to first focus exclusively on what this statute actually says results in a holding that once again, as in D’Amario, thwarts the Legislature’s intent. 6. Use of the word “cases” in earlier versions of section 768.81 points to the Legislature’s concern with the overall judicial proceeding, rather than individual causes of action. See § 768.81(4), Fla. Stat. (2001, 2006). Before 2011, section 768.81 used the terms “case” and “action” interchangeably. E.g., § 768.81, Fla. Stat....

...�� while specifying in subsection (4) that “[t]his section applies to negligence cases,” defined as “civil actions” based on certain theories). The 2011 amendments consolidated the terminology in favor of the word “action.” See generally § 768.81, Fla....

...The trial court, of course, was simply following the law as we understood it to be correct in this district prior to Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017). See R.J. Reynolds Tobacco Co. v. Schoeff, 178 So. 3d at 495–96 (interpreting section 768.81 to require apportionment of comparative fault in a tobacco case because at its core it is a product liability action, and concluding “that section 768.81 cannot be avoided simply because the action includes an intentional tort”)....

Hunter’s inability to stop safely behind Myrick. . § 768.81, Fla. Stat.

PER CURIAM. AFFIRMED. See T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So.3d 411, 413 (Fla. 2d DCA 2009) (“The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that [a defendant] will be required to pay more than its pro rata share of any common liability.”)....

...damages, and against appellee Braun & May in the amount of $1,500, or 5% of the damages. Appellants first argue that the trial court erred when it failed to award them the full amount of damages against appellees, jointly and severally. We disagree. Section 768.81, Florida Statutes (1997), governing comparative fault, provides: (1) Definition.—As used in this section, "economic damages" means ......

...e percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against the party on the basis of the doctrine of joint and several liability. Initially, we hold that pursuant to section 768.81(2), the $30,000 award of damages must be reduced to $25,500, to account for appellants' percentage of fault. We also hold that because appellants were only 15% at fault while Weigand was 20% at fault, Weigand is jointly and severally liable for the full $25,500, pursuant to section 768.81(3). See Metropolitan Dade County v. Frederic, 698 So.2d 291 (Fla. 3d DCA 1997). As to appellee Braun & May, however, the judgment is correct. Section 768.81(3) provides that a party whose percentage of fault does not equal or exceed that of the claimant shall not be subject to joint and several liability....

...4 And why would it? Florida’s comparative negligence statute requires that “contributory fault chargeable to the [plaintiff] diminish[] proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the [plaintiff’s] contributory fault.” § 768.81(2), Fla....

...proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant” (emphasis supplied)); Y.H. Invs., Inc. v. Godales, 690 So. 2d 1273, 1277 (Fla. 1997) (explaining that section 768.81, Florida Statutes, is based on “considerations of fairness” and provides a “straightforward proposition” by which a plaintiff will have his “damages reduced only by [his] percentage of fault”). Notably, the jury finds...

...Yet the ALJ refused to award AHCA the lower lien amount ($29,812.50) because Palacios’s settlement exceeded an amount by which the trial judge would have remitted the jury verdict to comport with the comparative-negligence apportionment requirement of section 768.81....

...Agency for Health Care Admin., 24 So. 3d 590, 592 (Fla. 5th DCA 2009). We should return to a straightforward application of the statute. * Unlike the proportionality methodology, the comparative- negligence discount at least finds support in substantive Florida law. See § 768.81(2), Fla....

...Fabre defendant from the verdict form. We review the trial court’s decision de novo. Christensen v. Bowen, 140 So. 3d 498, 501 (Fla. 2014). A non-party may be added to the verdict form by a defendant to reduce the defendant’s potential liability. § 768.81(3), Fla....

...Florida law holds each of multiple tortfeasors responsible for only that tortfeasor’s portion of liability. Fabre, 623 So. 2d at 1185. The only applicable exception to this rule is found in the statute, preventing application of the statute to actions “based upon an intentional tort.” § 768.81(4), Fla....

...Thus, Martin does not fall within the only exception that would disqualify him as a Fabre defendant.3 We therefore conclude that the trial court improperly removed Martin from the verdict form as a Fabre defendant because Martin’s conduct did not fall within the exception to section 768.81, Florida Statute (2011), as his conduct did not rise to the level of an intentional tort....

...In the cases cited by Navas in support of her position, the holdings were based on the courts’ findings that the actions were based on an intentional tort. Navas also relies on the Restatement (Second) of Torts, section 449, a position that ignores section 768.81, Florida Statute (2011). 4 

...2d 1246 (Fla. 2006), and that Philip Morris’s conspiracy to conceal was a legal cause of the husband’s death. Because the jury found liability on one intentional-tort theory, its inability to provide verdicts on other theories or on comparative-fault percentages was not critical, see § 768.81(4), Fla....

...Harris and 10% each to Philip Morris, R.J. Reynolds, and Lorillard ( id. at 4 ¶7. The original judgment reflected the total amount of compensatory damages - $ 1,726,650.00 - which did not account for the degree of Mr. Harris's comparative fault pursuant to § 768.81(3), Fla....

...at each defendant is responsible only for a part of the economic damages caused by that defendant. This instruction inaccurately stated the law, and the jury should not have been charged on the issue of joint and several liability. "The enactment of section 768.81, Florida Statutes, represented a policy shift in the State of Florida from joint and several liability that resulted in a single recovery for the plaintiff to the apportionment of fault." Gouty v. Schnepel, 795 So.2d 959, 961 (Fla.2001). This statute, however, makes an exception for actions based upon an intentional tort. See Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 975 (Fla. 4th DCA 1999); § 768.81(4)(b), Fla....

negligent and intentional tortfea-sors, pursuant to section 768.81, Florida Statutes (1989). In that I would,

...The Boatrights' Cross-Appeal The Boatrights contend that the trial court erred when it reduced the compensatory damages award by Mr. Boatright's comparative fault. At issue is whether the comparative fault statute, section 768.81, Florida Statutes (Supp. 1992),2 requires that the Boatrights' verdict be reduced by comparative fault. First, we note that the Boatrights' counsel did not waive the argument that section 768.81 does not apply to the verdict....

...either of the intentional torts, then the amount of compensatory damages would not be reduced by Mr. Boatright's comparative fault. The same information was given to the jury on the verdict form. Second, we address the merits of the Boatrights' argument and agree that section 768.81 is inapplicable....

...addictive nature of smoking cigarettes or both" by Philip Morris "was a legal cause of Richard Boatright's COPD." The jury also found as to both Philip Morris and Liggett that "the agreement to conceal 2The applicable version of section 768.81 is the one that was in effect when the cause of action arose....

...that the "Defendants had actual knowledge of the wrongfulness of their conduct and the high probability that injury or damage to the Smoker would result, and despite that knowledge, intentionally pursued their course of conduct." Section 768.81 applies to "negligence cases" which include actions based on theories of negligence, strict liability, and product liability. § 768.81(4)(a)....

...The statute provides that "[i]n an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery." § 768.81(2). The statute explicitly does not apply to "any action based upon an intentional tort." § 768.81(4)(b). Further, the statute instructs that "[i]n determining whether a case falls within the term 'negligence cases,' the court shall look to the substance of the action and not the conclusory terms used by the parties." § 768.81(4)(a). As to our standard of review, we agree with the Fourth District in R.J. Reynolds Tobacco Co....

...To the extent the First District applied an abuse of discretion standard in R.J. Reynolds Tobacco Co. v. Sury, 118 So. 3d 849, 852 (Fla. 1st DCA 2013), we disagree with the use of that standard. But we agree with the Sury court's conclusion that section -8- 768.81 did not require reduction of the compensatory damage award by the smoker's percentage of fault. See id. In Sury, the First District recognized that "the public policy behind the exclusion in section 768.81 for intentional torts" is based on the fact that intentional wrongs and simple negligence are different as to the type of fault " 'and in the social condemnation attached to it.' " 118 So....

...rt to enter an amended judgment to reflect the full amount of the jury's verdict. In doing so, we certify conflict with Schoeff, Grossman, and Calloway to the extent that they hold that the core of those actions is grounded in negligence and that section 768.81 is applicable to reduce the verdict by the smoker's comparative fault. Philip Morris's Main Appeal In issue one, Philip Morris contends that a new trial is necessary because the trial cou...

...not otherwise established reversible error as to the admission of the evidence. In issue three, Philip Morris contends that the trial court erred in failing to ask the jury to determine Liggett's share of fault based on the comparative fault statute, section 768.81....

...severally liable for compensatory damages because the jury was not given an opportunity to allocate fault to Liggett. However, based on the resolution of the cross-appeal that the exception for intentional torts in the comparative fault statute, section 768.81(4)(b), applies, Liggett is not entitled to relief on this issue. In issue three, Liggett requests that the punitive damages award be vacated if this court finds merit in either of its arguments in its first and second...

...on We affirm on Philip Morris's main appeal and on Liggett's main appeal. Because we have determined on the Boatrights' cross-appeal that the core of this action is grounded in intentional misconduct, the comparative fault statute, section 768.81, does not apply....

...jury's verdict. In doing so, we certify conflict with Schoeff, Grossman, and Calloway to the extent that they hold - 14 - that the core of these types of actions are grounded in negligence and that section 768.81 is applicable to reduce the verdict by the smoker's comparative fault. Affirmed in part, reversed in part, and remanded. LaROSE and BADALAMENTI, JJ., Concur. - 15 - 

recover 100% of her damages from the Hudsons. Section 768.81, on the other hand, requires that “the court