Lawyers Journal

New England states differ in approaches to damage allocations

Each state's approach to joint and several liability, contribution and comparative negligence can lead to dramatically different results for your client. Although the New England states are geographically close, they are worlds apart in how they apportion damages among joint tortfeasors. Knowing these differences can dramatically affect the outcome in a case. The following summarizes the approaches used by the courts in the various New England states:

Connecticut

Connecticut has adopted a modified comparative negligence statute, C.G.S. § 52-572h(b) (2009). If the jury finds that the plaintiff's fault exceeds the combined fault of all the defendants, recovery is barred. Connecticut holds joint tortfeasors severally liable under C.G.S. § 52-572h(g)(1) (2009). Defendants are only liable for their proportionate share of damages unless the plaintiff fails to collect from one defendant despite good faith efforts to do so.

The courts reallocate uncollectible shares among the remaining defendants in accordance with their relative degree of fault, C.G.S. § 52-572h(g)(2) (2009). Juries apportion damages between named defendants and settling tortfeasors, but not the entire universe of negligent tortfeasors, Donner v. Kearse, 234 Conn. 660, 668-69 (1995). Connecticut applies traditional joint and several liability principles to intentional and strict liability torts, C.G.S. § 52-572h(o) (2009).

Maine

Like Connecticut, Maine has a modified comparative negligence statute, but neither state holds defendants joint and severally liable nor permits juries to reduce damages by a plaintiff's proportionate share of fault, 14 M.R.S.A. § 156 (1999); Pelletier v. Fort Kent Golf Club, 662 A.2d 220, 223 (Me. 1995). Instead, juries reduce "total damages by dollars and cents, and not by percentage, to the extent considered just and equitable," Pelletier, 662 A.2d at 223.

For the purposes of contribution, however, tortfeasors do contribute in proportion to their causal fault, Dongo v. Banks, 448 A. 2d 885, 894 (Me. 1982). The amount that a plaintiff has already recovered from settling tortfeasors will offset the damage award. A non-settling defendant may seek contribution from a settling tortfeasor to the extent the settling tortfeasor's share exceeds the amount paid under the settlement.

Massachusetts

Massachusetts recognizes joint and several liability, Shantigar Found. v. Bear Mountain Builders, 441 Mass. 131, 141 (2004). Each defendant is liable in full regardless of the defendants' relative degrees of fault. Massachusetts defendants may offset their damages somewhat by seeking contribution from other tortfeasors "against whom recovery is sought," but not from settling tortfeasors, M.G.L. c. 231B, § 1 (2009); M.G.L. c. 85, § 4(b) (2009).  If a plaintiff holds a tortfeasor liable for more than their pro-rata share of damages, then that tortfeasor may seek partial reimbursement from other tortfeasors, Shantigar Found., 441 Mass. at 141. Each tortfeasor's proportional fault is irrelevant because tortfeasors contribute equal pro-rata shares.

Although juries do apportion fault between the named defendants and the plaintiff under Massachusetts' modified comparative negligence statute, trial judges only reduce damages by the percentage of fault assigned to the plaintiff and the amount received under settlements, M.G.L. c. 85, § 1 (2009). Each defendant remains fully liable for the rest of the damages, Shantigar Found., 441 Mass. at 141. Massachusetts juries cannot apportion damages to absent tortfeasors, including ones that have settled previously.

New Hampshire

New Hampshire follows joint and several liability to an extent. If the jury apportions 50 percent or more of the fault to one defendant, then that defendant is joint and severally liable for all of the damages, R.S.A. § 507:7-e(b) (2009). A defendant less than 50 percent at fault is only liable severally. Juries may apportion damages among the entire universe of tortfeasors (even including non-parties) and the defendant. DeBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 793, 804 (2006).

New Hampshire's comparative negligence statute provides that the relative fault of the plaintiff will not bar recovery unless it exceeds the fault of the defendants in the aggregate, R.S.A. § 507:7-d (2009). The plaintiff's relative degree of fault will offset damages. A settlement will likewise offset the total recoverable damages and discharge a tortfeasor from any contribution obligations, R.S.A. § 507:7-h (2009). Joint tortfeasors owe contribution in the amount of their proportionate fault, R.S.A. § 507:7-f (2009).

Rhode Island

Rhode Island adopted pure comparative negligence in 1971, G.L. § 9-20-4 (2009). A plaintiff's negligence will never bar recovery, no matter how great, but it will reduce recovery proportionally. This approach abandons "the all-or-nothing effect of the traditional contributory negligence rule," instead providing for some recovery if the jury finds the defendants even marginally negligent, Raymond v. Jenard, 390 A. 2d 358, 361 (R.I. 1978).

As a threshold issue, then, a jury must find both the plaintiff and defendant negligent before apportioning negligence between them, Calise v. Hidden Valley Condo. Ass'n, 773 A. 2d 834, 837 (R.I. 2001). Defendants become joint and severally liable for whatever amount the jury apportions to them collectively, G.L. § 10-6-2 (2009). They may seek contribution from other tortfeasors based on their relative degrees of fault, but not from settling tortfeasors, G.L. § 10-6-3, 8 (2009).

Vermont

Vermont's comparative negligence statute divides damage awards severally among named defendants in proportion to their causal fault, 12 V.S.A. § 1036 (2009). Plaintiffs cannot recover if their negligence exceeds the negligence of all the defendants. If a plaintiff's negligence is less than 50 percent, the courts will diminish the total damages by his or her proportional fault. Vermont only permits juries to apportion damages between named defendants, Levine v. Wyeth, 944 A. 2d 179, 196 (Vt. 2006).

Joint and several liability principles apply to all other tortfeasors. The courts do reduce damage awards by the amount paid to the plaintiff pursuant to settlement agreements, but defendants cannot seek contribution from joint tortfeasors.

How the New England states apportion damages varies widely. An awareness of these differences can impact a case at all its stages, and accordingly, counsel should keep the differences in mind in selecting a jurisdiction for suit, and for evaluating the value of their case.

Whether in settlement negotiations or trial strategy, what state law applies may matter a great deal.

Kenneth E. Rubinstein and Tobias W. Crawford practice in the commercial litigation practice group at Nelson, Kinder, Mosseau & Saturley PC in Boston, and Manchester, N.H.

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