- posted: Dec. 01, 2015
- Civil Litigation
Arizona is a comparative fault state. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault. A.R.S. § 12-2506. For example, if you slip on water that has accumulated on the floor in your local grocery store and fall to the ground breaking your wrist, you might decide to sue the store to recover some damages. If a jury awards you $100,000 and then determines that the store is only 40% responsible for your fall, then you will only receive $40,000 from that store. Hopefully, Plaintiff’s attorney has named a second Defendant that is responsible for the other 60% of your injuries. Assuming the correct Defendants were named in the Complaint or added at a later time, Plaintiff will recover the full award.
This comparative fault scheme incentivizes Defendants to point the blame at other people to minimize the amount of money they must pay. In order to do this, the Defendant must name a nonparty at fault. To correctly name a nonparty at fault, the Defendant must name, with some specificity, who that party is and must state facts to prove that person is in some way responsible for the Plaintiff’s injury. Scottsdale Ins. Co. V. Cendejas, 220 Ariz. 281, 205 P.3d 1128 (App. 2009) . According to the Arizona Rules of Civil Procedure, Rule 26(b)(5), the Defendant must “provide the identity, location, and the facts supporting the claimed liability of such nonparty…” The Defendant must name this non-party within 150 days of their Answer being filed with the Court. Ariz. R. Civ. P. 26(b)(5).
If the Defendant files Notice of a nonparty at fault after the statute of limitation has run, it may cause significant trouble for the Plaintiff. In this situation, the Plaintiff may have overlooked this nonparty when filing the lawsuit and the time to do so has since passed. Meanwhile, the Defendant, who did get sued will try to place all of the blame on a person that is not involved in the lawsuit. This nonparty will not have to pay any money and so therefore will have no incentive to point the finger back at the named Defendant and may simply admit to fault. If the named Defendant can convince a jury that this nonparty who is protected from paying any damages to the plaintiff, is partially responsible for the Plaintiff’s injuries, then the Plaintiff will never recover that portion of the award.
Let’s go back to the initial example. If the Jury awards $100,000 and determines that the Defendant is 40% responsible and the Non-Party is 60% responsible, then Plaintiff will only recover $40,000 in total.
It is therefore extremely important that all parties are correctly named in the initial lawsuit or that the lawsuit is filed with enough time to allow the Defendant 150 days to name a Nonparty at fault and still be able to amend the Complaint to name that party and bring him/her into the lawsuit. Failure to do so may result in some rather dire consequences for the Plaintiff.
The importance of hiring an experienced Law Firm to protect your interests is of utmost importance in any case, especially when there is the potential for multiple Defendants.