11.3 Joint and Several Liability, the Fabre Doctrine and Damages
Key Takeaways
- Florida abolished joint and several liability, so under F.S. § 768.81 each defendant pays a judgment only in proportion to its own percentage of fault.
- Under the Fabre doctrine the jury may apportion fault to non-parties whose negligence contributed to the injury, which reduces the share payable by the named defendants.
- Compensatory damages divide into special or economic damages such as medical bills, lost wages and repair costs, and general or non-economic damages such as pain and suffering, mental anguish and loss of consortium.
- Punitive damages require clear and convincing evidence of intentional misconduct or gross negligence and may not be pleaded initially without a reasonable evidentiary showing under F.S. § 768.72.
- F.S. § 768.73 caps punitive damages at the greater of three times compensatory damages or $500,000, rising to four times or $2 million for conduct motivated by unreasonable financial gain, and removes the cap for specific intent to harm or intoxication.
1. Abolition of Joint and Several Liability & The Fabre Doctrine
Historically, Florida followed the common-law doctrine of joint and several liability, which allowed a plaintiff to collect 100% of their judgment against any single defendant found even 1% at fault, leaving that defendant to seek contribution from other tortfeasors ("deep pocket" recovery).
Under Florida Statutes § 768.81, the Florida Legislature has completely abolished joint and several liability in Florida negligence actions. Florida now adheres strictly to pure proportionate fault apportionment:
- In any negligence case, the court must enter judgment against each liable party strictly on the basis of that party's percentage of fault, not jointly and severally.
- A defendant who is found 20% liable can never be forced to pay more than 20% of the total damages awarded.
The Fabre Doctrine (Fabre v. Marin, 1993)
Because joint and several liability is abolished, Florida permits defendants to shift or dilute liability using the Fabre Doctrine:
- A named defendant in a civil lawsuit may formally plead that a non-party (known as a Fabre defendant) shares fault for the plaintiff's injuries.
- If the defendant meets their evidentiary burden, the trial judge must include the non-party Fabre defendant's name on the jury verdict form alongside the named parties.
- The jury allocates fault percentages across all responsible entities—both parties and non-parties. The named defendant pays only their assigned percentage, significantly lowering casualty claim exposures for insurers.
2. Damages in Florida Casualty Claims
When legal liability is established, the claims adjuster must quantify the damages owed. Florida law divides civil damages into two broad categories: compensatory (designed to make the plaintiff whole) and punitive (designed to punish and deter).
Civil Damages
├── Compensatory Damages
│ ├── Special Damages (Economic: bills, wages, out-of-pocket costs)
│ └── General Damages (Non-Economic: pain & suffering, anguish)
└── Punitive Damages (Punishment/Deterrence: F.S. § 768.73 statutory caps)
Compensatory Damages: Special vs. General
- Special Damages (Economic Damages): Quantifiable, objectively measurable out-of-pocket financial losses directly resulting from the tort:
- Past and future medical, surgical, and rehabilitation expenses.
- Lost past wages and verified loss of future earning capacity.
- Property damage repair costs, total loss fair market values, and vehicle loss-of-use expenses.
- General Damages (Non-Economic Damages): Intangible, subjective non-monetary losses that cannot be calculated with mathematical exactness:
- Physical pain and suffering, physical impairment, and permanent disfigurement or scarring.
- Mental anguish, emotional distress, and loss of capacity for the enjoyment of life.
- Loss of Consortium: A derivative claim brought by the uninjured spouse for the deprivation of companionship, affection, and spousal relations.
Punitive Damages Standards & Statutory Caps (F.S. § 768.72 & § 768.73)
Punitive damages are not intended to compensate the victim; their sole legal purpose is to punish extreme wrongdoing and deter the defendant and the public from similar conduct.
- Evidentiary Threshold: Under F.S. § 768.72, punitive damages cannot even be alleged in an initial complaint; the claimant must make a preliminary evidentiary proffer showing a reasonable basis. At trial, punitive damages must be established by clear and convincing evidence (a higher standard than the civil preponderance of evidence) that the defendant was personally guilty of intentional misconduct or gross negligence.
- Gross Negligence Defined: Conduct so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to its effects.
Statutory Caps on Punitive Damages (F.S. § 768.73)
To prevent catastrophic, runaway jury awards, the Florida Legislature enacted strict statutory limitations on punitive damage awards:
- Standard Statutory Cap: Punitive damages are capped at the greater of three (3) times the amount of compensatory damages awarded to the claimant, or $500,000.
- Heightened Cap for Financial Gain: If the wrongful conduct was motivated primarily by unreasonable financial gain and the unreasonably dangerous nature of the conduct was known, the cap rises to the greater of four (4) times compensatory damages, or $2,000,000.
- Uncapped Punitive Damages: Punitive damages are completely uncapped (no statutory limit) if the jury finds the defendant acted with specific intent to harm the claimant, or if the defendant was intoxicated by alcohol or illegal drugs at the time of the incident (F.S. § 768.736).
3. Pleading and Proving Nonparty Fault
The Fabre doctrine is not self-executing. F.S. § 768.81(3) puts two burdens on the defense, and the adjuster's investigation is what satisfies them:
- The defendant must affirmatively plead the fault of the nonparty in its answer, identifying that person or entity rather than gesturing at "others."
- The defendant must then prove the nonparty's fault at trial by the greater weight of the evidence — the same preponderance standard the plaintiff carries.
That is why a liability adjuster who suspects a third party should preserve the evidence early: the failed component, the maintenance contract, the subcontractor's scope sheet, the 911 audio, the surveillance video. A Fabre defendant who cannot be proved is simply a percentage the insured pays.
Apportionment does not apply everywhere. Under F.S. § 768.81(4) the statute does not reach actions for damage from pollution, actions based on an intentional tort, or situations where another chapter of the Florida Statutes expressly imposes joint and several liability. In an intentional-tort case the old common-law rule survives, so an insured who committed a battery cannot dilute the judgment by pointing at a bystander.
Section 11.2 covers the companion rule from House Bill 837 — the modified comparative negligence bar that ends recovery for a claimant found more than 50 percent at fault, with a carve-out for medical negligence actions under chapter 766. Read the two together: fault percentages first decide whether the claimant recovers at all, then decide how much each defendant pays.
4. Proving Medical Damages After F.S. § 768.0427
House Bill 837 also rewrote what a claimant may put in front of a jury as medical damages, and it changed how a bodily injury adjuster values a file:
| Category of medical charge | Admissible evidence of the amount |
|---|---|
| Past charges already satisfied | The amount actually paid, regardless of who paid it |
| Past charges still unpaid, claimant has health coverage | What the health insurer is obligated to pay plus the claimant's share of deductible, copay and coinsurance |
| Past charges still unpaid, claimant is uninsured or on Medicare or Medicaid | 120 percent of the Medicare reimbursement rate for that service |
| No applicable Medicare rate exists | 170 percent of the Florida Medicaid rate |
| Future medical care | The same coverage-based or Medicare/Medicaid benchmarks, projected forward |
When treatment was furnished under a letter of protection, the claimant must disclose the letter itself, itemized bills coded to CPT, HCPCS or ICD standards, the identity of any factoring company that bought the account and the discount it paid, whether the claimant had health coverage, and who referred the claimant for treatment. A referral by the claimant's own attorney is admissible, and the financial relationship between the law firm and the provider is fair game as evidence of provider bias. The practical effect for the adjuster is that a $180,000 letter-of-protection bill is no longer the starting point for negotiation; the Medicare-based benchmark usually is.
5. Collateral Sources and Settlement Leverage
F.S. § 768.76 requires the court to reduce a damages award by collateral source payments made for the claimant's benefit — but not by payments from any source that holds a right of subrogation or reimbursement. Medicare, Medicaid, workers' compensation and Department of Health medical programs are therefore excluded from the setoff. The claimant must notify collateral source providers by certified or registered mail of the intent to pursue the tortfeasor; a provider that does not assert its subrogation or reimbursement right within 30 days waives it.
F.S. § 768.79 gives both sides a fee-shifting tool. A defendant's offer of judgment that the plaintiff rejects entitles the defendant to fees and costs if the judgment is at least 25 percent less than the offer; a plaintiff's demand entitles the plaintiff to fees if the judgment is at least 25 percent greater than the demand. An offer stays open for 30 days. Adjusters use the proposal to convert a soft liability defense into real downside risk for the plaintiff.
6. Putting It Together: Allocating a Florida Verdict
A slip-and-fall claimant is awarded $600,000 in compensatory damages. The jury assigns 25 percent fault to the insured store, 55 percent to the nonparty janitorial contractor named as a Fabre defendant, and 20 percent to the claimant. The claimant's health insurer paid $48,000 of a $130,000 hospital bill and has asserted a written subrogation lien.
| Step | Computation | Result |
|---|---|---|
| Does the claimant recover at all? (§ 768.81(6)) | The claimant is 20 percent at fault, which is not more than 50 percent, so the bar does not apply | Recovery permitted, diminished in proportion to fault under § 768.81(2) |
| Store's share of the judgment (§ 768.81(3)) | $600,000 × 25 percent | $150,000 |
| Nonparty contractor's share | $600,000 × 55 percent | $330,000, collectible only from the contractor |
| Collateral source setoff (§ 768.76) | Health insurer asserted subrogation, so no setoff | $0 reduction |
The store's carrier owes $150,000 and nothing more. Under the old joint and several liability rule, before the Legislature abolished it in § 768.81 and before Fabre allowed fault to be placed on non-parties, the same verdict could have exposed that carrier to the entire award.
In a Florida casualty lawsuit where the jury finds by clear and convincing evidence that a defendant was guilty of gross negligence, what is the standard statutory cap on punitive damages under Florida Statutes § 768.73?
A jury awards $500,000 in compensatory damages and finds the defendant 30 percent at fault, a non-party contractor 60 percent at fault, and the plaintiff 10 percent at fault. Under Florida law, what does the named defendant owe?
An uninsured bodily injury claimant treated under a letter of protection presents $180,000 in unpaid surgical charges. Under F.S. § 768.0427, what evidence of those past medical charges may be placed before the jury?