Changes coming to key defense apportionment tactic?
June 21, 2015
A decision on whether a person or entity, which may be immune from a suit, can be put on the verdict form by the defendant for apportionment purposes may be coming soon. As part of a 2005 package, apportionment has been used as a key defense tactic as a way to determine damages. A defendant may add nonparties to the verdict form if that person or entity contributed to the alleged injury or damages. Issues arise when the nonparties would typically be immune, such as spousal immunity, or by statute, such as workers compensation.
A federal trial judge has asked the state Supreme Court whether a person or entity that may be immune from a suit can nonetheless be put on the verdict form by the defendant for apportionment purposes. The nonparty at issue in the federal case is an employer protected from suit by worker's compensation law. Recent 2012 decisions have upheld spousal immunity and denied apportionment in these cases, however there has not been a decision for workers compensation. Only time will tell how this important issue will be decided.
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