LIABILITY AND THE SOLE DEFENDANT

Transcription

1 LIABILITY AND THE SOLE DEFENDANT APPLYING MINNESOTA STATUTE SECTION AFTER STAAB V. DIOCESE OF ST CLOUD By Laura A. Moehrle and Matthew M. Johnson Quinlivan & Hughes, P.A. Johnson & Condon, P.A. INTRODUCTION Minnesota courts have applied some form of joint and several liability for more than 100 years. Over the past several decades, the Minnesota legislature has gradually limited its application. In 2003, the Minnesota legislature modified joint and several liability requiring, in most instances, that a defendant must be more than 50% at fault in order for that defendant to be jointly liable so as to owe 100% of all damages not apportioned to the plaintiff under the Minnesota Comparative Fault Statute, Minn. Stat In the recent case, Staab v. Diocese of St. Cloud, 813 N.W.2d 68, (Minn. 2012), the Minnesota Supreme Court for the first time analyzed what damages a sole defendant owes to an innocent plaintiff when that defendant is 50% or less at fault and no other defendants are parties to the lawsuit. THE FACTS Alice Staab and her husband Richard went to Holy Cross Parish School, where their daughter was an elementary school teacher, to attend a series of events commemorating the anniversary of the school. Alice Staab was confined to a wheelchair. Richard Staab regularly assisted his wife by pushing the wheel chair. The couple attended a noon mass at Holy Cross Church and when the mass ended about an hour later, the Staabs crossed the street and entered the school building through the front entrance. After visiting their daughter s classroom, they went to the school gymnasium where they ate a meal and listened to the parish priest address the guests. When the Staabs prepared to leave, the door through which they had entered earlier that day was crowded with people. Seeing a set of double doors in the gymnasium that were propped open to the outdoors, the Staabs chose to exit the building through that doorway instead. As they proceeded out of the gymnasium and started through the doorway, the front wheels of Mrs. Staab s wheelchair tipped over the step and Mrs. Staab fell forward out of her chair onto the sidewalk. In seeking compensation for her injuries, Mrs. Staab sued Holy Cross alleging that the premises posed an unreasonable risk of harm. She did not sue her husband. Holy Cross did not bring a third party claim against Mr. Staab however, at trial, both Holy Cross and Mr. Staab were included on the special verdict form. The jury ultimately found Holy Cross and Richard Staab were each negligent and that the negligence of each directly caused Mrs. Staab s injuries. The jury found 50% fault on the part of Holy Cross and 50% fault on the part of Mr. Staab and awarded $224, in damages. Following post-trial motions, the District Court ordered Holy Cross, the only named defendant, to pay the full amount of Mrs. Staab s damages, despite the jury s finding that Holy Cross was only 50% at fault, holding Staab v. Diocese of St. Cloud continued on page 24 Laura Moehrle was born and raised in St. Cloud, Minnesota. She graduated from the University of Minnesota Law School in May 2005, and became an associate at the firm in October Ms. Moehrle practices primarily in the area of insurance defense litigation, including automobile liability and professional liability and also practices in the areas of premises liability, employment law and appellate law. She serves an active role in the litigation process by participating in investigations, discovery, depositions and using her written and oral advocacy skills to argue motions in state and federal court. Matthew Johnson is a shareholder with Johnson & Condon. His litigation practice involves representing clients defending personal injury and property damage claims involving automobile, liquor, premises, and products liability. He also represents his clients in contractual disputes. His corporate clients include trucking and car rental companies, hotels, restaurants, retailers, and marinas. Mr. Johnson also pursues subrogation claims on behalf of workers compensation insurers and employers. He also represents insurance companies in automobile, homeowners, and commercial coverage disputes. Mr. Johnson is a frequent lecturer on a number of topics, including workers compensation subrogation, liquor liability, hospitality law, Minnesota s No-Fault Act, Alternative Dispute Resolution, insurance fraud, and the Minnesota Fair Claims Practices Act. MN DEFENSE s SUMMER

2 Staab v. Diocese of St. Cloud continued from page 23 Minnesota s Joint and Several Liability Statute did not apply in cases involving only one defendant. Defendant appealed and the Minnesota Court of Appeals reversed the District Court s decision. Plaintiff appealed to the Minnesota Supreme Court. THE ISSUE The issue before the Minnesota Supreme Court on appeal was whether Holy Cross, the sole defendant found to be only 50% at fault, must nevertheless pay 100% of the jury s award because the plaintiff elected not to join her husband as a defendant. The resolution of this issue, in the Court s view, turned on whether Minnesota s Joint and Several Liability Statute should be interpreted to require that a sole defendant in a lawsuit is liable for a non-party s liability. Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn. 2012). THE HOLDING The Court held that the statute applies even where only one of multiple tortfeasors is actually joined as a defendant in a lawsuit, and its application serves to limit the contribution a defendant must make to a jury s award to only an amount commensurate with that party s percentage of fault if that party is found to be 50% or less at fault. THE STATUTE In 2003, the Minnesota Legislature chose to drastically modify Minnesota s joint and several liability law. In 2003, the Minnesota Legislature amended Minnesota Statute subd. 1 as follows: Subd. 1 [Joint Liability.] When two or more persons are jointly severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that each is the following persons are jointly and severally liable for the whole award: (1) A person whose fault is greater than 50 percent. (2) two or more persons who act in a common scheme or plan that results in injury; (3) a person who commits an intentional tort; or (4) a person whose liability arises under [various enumerated chapters]. Except in cases where: [ ] A person whose fault is 15 percent or less is liable for a percentage of the whole award no greater than four times the percentage of fault, including any amount reallocated to that person under subdivision 2. Prior to the amendment, any person could be held liable for 100% of a jury s verdict unless certain specified conditions were met. Indeed, it was a defendant s expectation that if another at-fault party was insolvent or otherwise could not pay their share of a judgment, the defendant was nevertheless jointly liable for, and would be required to pay, the entire award. Under the revised law, however, a person is only responsible for damages proportionate to their own percentage of fault unless one of the four enumerated exceptions in subdivision 1 applies. Most relevant in this case is if a person is allocated fault of 50% or less, there is no joint liability for the entire award and a person is only severally liable for damages in proportion to the allocation of fault. On the other hand, if a person s fault is 51% or greater, only then is that person jointly and severally liable for 100% of the jury s verdict. Minn. Stat subd. 1. Following the 2003 amendment, joint liability was no longer the default position from which exceptions could be made to limit a defendant s liability. Indeed, the Staab Court held it is undisputed that Minnesota Statute was intended to modify the common law rule of joint and several liability in Minnesota. The revised statutory scheme directs that every tortfeasor is severally liable, but joint liability for an entire award only arises in certain enumerated circumstances. The Staab Court held that a severally liable defendant is responsible for his or her equitable share of an award. The revised statute limits the magnitude of a severally liable person s contribution to an amount that is in proportion to his or her percentage of fault. This limitation is abrogated only to the extent a person falls within the exceptions enumerated in subparts (1)-(4) of subdivision (1), and these persons are then subject to joint liability. Staab at p. 73. APPLYING THE STATUTE TO A SOLE DEFENDANT In determining whether Minnesota s joint and several liability statute applies where there is only one named defendant, the Minnesota Supreme Court reached several important holdings. On appeal, Staab argued that the statute could not apply in a case where there was only one defendant because the plain language of the statute applied where two or more persons are severally liable. In advancing this argument, Staab took the position that the word person must be limited to parties to the lawsuit and the word liable must refer to a party s liability for a judgment. The Court rejected these arguments, holding that for purposes of the joint and several liability statute, liability is determined at the time the tort is committed, not at the time a jury apportions fault and that person refers to parties to the transaction giving rise to harm, not parties to the lawsuit. Staab v. Diocese of St. Cloud continued on page MN DEFENSE s SUMMER 2012

3 Staab v. Diocese of St. Cloud continued from page 24 Second, Staab argued that the statute could not apply in single defendant cases because the statute directs that contributions to awards shall be in proportion to the percentage of fault attributable to each and non-parties may not be subject to a judgment. Staab at 76. The Court disagreed, holding that this clause simply provides that the principle of several liability limits the magnitude of a severally liable person s contribution to an amount that is in proportion to his or her percentage of fault as determined by the jury. Id. The court held that while a plaintiff may sue fewer than all of the tortfeasors who caused the harm, a jointly and severally liable defendant is responsible for the entire award whereas a severally liable defendant is responsible for only his or her equitable share of the award. Indeed, the court held that the statutory language would be ineffective if a severally liable person were compelled to contribute out of proportion to his or her percentage of fault. Id. at 77. In reaching the holdings in this case, the Supreme Court noted that the legislative history of Minnesota Statute leading up to the 2003 amendments demonstrates a clear legislative intent to limit joint and several liability in Minnesota. The 2003 amendments continued in this trend limiting joint and several liability, restricting its application to four enumerated circumstances which enable an injured person to recover more than a tortfeasor s comparative-responsibility. The rule of several liability applies in all other circumstances. Accordingly, the Court ordered Holy Cross to pay 50% of the jury award, which corresponds to its share of fault as determined by the jury. Following the Supreme Court s decision, various practitioners have wondered how this decision will impact civil litigation both generally and within specified areas of law. Others have asked how this case arose in the first place, specifically, why Richard Staab was not made a party to the claim. The remainder of this article seeks to answer those questions. THE TRIAL: HOW RICHARD STAAB GOT ON THE SPECIAL VERDICT FORM One of the most common questions asked when discussing the Staab case is Why wasn t Richard Staab added as a defendant in the case? The answer to that question is relatively simple. Blaming Mr. Staab for this accident was not consistent with my theory of the case, said Quinlivan & Hughes attorney Michael LaFountaine. Plaintiff s claim against Holy Cross was premised on an allegation that the four to five inch drop from the edge of the gymnasium floor to the top of the sidewalk was a dangerous condition that created an unreasonable risk of harm. Holy Cross maintained that the area was not unsafe and furthermore that the step was an open and obvious condition such that Holy Cross did not have an obligation to warn the Staabs about its existence. Plaintiff took depositions of various school officials, all of whom testified that they had never considered that doorway to be unsafe. The school maintenance worker, who had been employed there for over 20 years, testified that the doorway area had always been that way. It had never been the subject of any discussions of any school officials. The principal testified he had never distinctly observed the drop-off, and it never registered as being a problem. There were no teachers, students, parishioners or other regular visitors to the school who used a wheelchair prior to this incident, and a building inspector had not come through the building for any reason prior to this incident. Neither Mr. or Mrs. Staab could offer any reason for their failure to see the drop-off, both were able to clearly see and identify the drop-off in the photographs at their depositions. As we were proceeding through discovery, I thought about whether I should bring Mr. Staab in as a defendant on several occasions and talked to other attorneys about the strategy, commented LaFountaine. The testimony of our witnesses was supportive of our defense theory. Ultimately, I decided that bringing a claim against Mr. Staab was not only inconsistent with our theory of defense, but I also did not want to stand in front of a jury on behalf of my client a Catholic School - and blame Mr. Staab for causing serious injury to his wife. Shortly before trial, Holy Cross made a motion in limine seeking an order that Mr. and Mrs. Staab s collaboration in the maneuvering and direction of her wheelchair constituted a joint enterprise for purposes of establishing joint liability between them. This motion was denied and the matter proceeded to trial. The day before trial, I met with my clients to prepare. I confirmed that each witness was expected to testify consistent with their deposition testimony, LaFountaine recalled. Accordingly, LaFountaine continued on with the no negligence theory. However, the best laid plans of mice and men often go awry. At trial, one of the defense witnesses offered testimony that was inconsistent with his deposition testimony, and instead indicated that the step near the doorway had caused him some concern. With the no negligence theory jeopardized, LaFountaine had to explore Mr. Staab s role in contributing to the accident, eliciting testimony about the safety precautions that he typically Staab v. Diocese of St. Cloud continued on page 26 MN DEFENSE s SUMMER

4 Staab v. Diocese of St. Cloud continued from page 25 takes in navigating his wife s wheelchair, the reasons for those precautions, and the fact that he did not take any of these precautions when exiting the doorway of the gymnasium. In light of the trial testimony, LaFountaine determined it was in his client s best interest to include Richard Staab on the special verdict form so that the jury could consider Mr. Staab s negligence. Mr. Staab was added to the special verdict form on the last day of trial. PRACTICAL APPLICATION OF THE STAAB DECISION CIVIL LITIGATION: GENERALLY The Supreme Court s decision may impact decisions attorneys make in crafting their complaint, in decisions regarding asserting third party claims, and in determining who should be included on the verdict form. On appeal, Mrs. Staab argued the joint and several liability statute should not apply to cases involving only one defendant, positing that allowing such application would require a Plaintiff to sue every conceivable wrongdoer, no matter how miniscule their fault, in order to ensure a full recovery for the Plaintiff. 1 However, the Court s decision does not compel this result. In order to ensure she has a right to collect 100% of a judgment, a plaintiff must only sue those persons who are likely to be found most at fault for a plaintiff s damages. If a defendant is found to be 51% or more at fault, that defendant will be jointly and severally liable for the entire jury award 2, ensuring a full recovery for the plaintiff, even if minimally at fault defendants are not named as parties or otherwise are unable to pay a judgment. A plaintiff would, however, be at risk for receiving less than a full recovery if the plaintiff sued a minimally at fault tortfeasor (50% or less at fault) and chose not to sue the tortfeasor who was primarily at fault. In this circumstance, a plaintiff would only be entitled to collect a judgment in an amount commensurate with the defendant s allocation of fault and the defendant would only be severally liable (as distinct from jointly and severally liable) for this amount. The Staab decision may also impact decisions regarding third-party practice and drafting of special verdict forms. The Supreme Court has held that the joint and several liability statute applies regardless of whether 1 This section assumes all defendants are solvent and have resources to pay a jury s verdict. The following section regarding the reallocation statute addresses situations where one or more tortfeasors is unable to pay a judgment. 2 Assuming no comparative fault on the part of the plaintiff. Any comparative fault of the plaintiff would reduce the amount owed by the defendant. all tortfeasors are actually joined as defendants in the lawsuit. Accordingly, it is in a defendant s best interest to try to ensure the jury finds him 50% or less at fault for a plaintiff s damages. In this instance, the defendant will be severally liable and therefore only required to pay damages in proportion to its allocation of fault. Certainly, the strategy of whether to add another tortfeasor to the litigation by third-party practice or including a non-party on the special verdict form will vary depending on the facts of each individual case. In some instances, allowing the jury to consider the fault of another tortfeasor may put enough focus on that person s conduct so as to reduce the allocation of fault for a defendant to 50% or less. However, in some instances, particularly where a defendant is likely to be found very minimally at fault, it may be prudent to forego third party practice or to leave non-parties off the verdict form so as not to allow the jury an opportunity to split the verdict among defendants where they may have otherwise simply entered a verdict of no negligence against a single defendant. The Staab decision may also have an impact on thirdparty practice as it relates to claims for contribution. If a defendant brings a third-party claim against another tortfeasor, there is no direct action between the plaintiff and the third-party defendant. Instead, the claim is between the defendant/third-party plaintiff and the third party defendant. As such, the third-party defendant is not obligated to pay any judgment directly to the plaintiff. Instead, a claim for contribution only arises when a defendant has paid more than his fair share of a judgment. Coble v. Lacey, 101 N.W.2d 594 (Minn. 1960). Accordingly, under principles of contribution, a defendant must actually pay a plaintiff more than the defendant s fair share before a defendant may collect from another at-fault party. Hoverson v. Hoverson, 12 N.W.2d 501 (Minn. 1943). Following the decision in Staab, if a defendant/first party plaintiff is found to be 50% or less at fault by a jury, the defendant/first party plaintiff is severally liable and will only be obligated to pay a judgment commensurate with its percentage of fault, and therefore will not have paid more than his fair share of the award. In this circumstance, there is no viable claim for contribution because it is joint liability, rather than joint or concurring negligence, which determines the right of contribution. Spitzack v. Schumacher, 241 N.W.2d 641, 645 n.2 (Minn. 1976). Under the 2003 version of the statute, a minimally at fault defendant no longer bears the burden of another tortfeasor s insolvency. Under the prior law, all tortfeasors were jointly liable for a judgment unless certain exceptions applied. Under this prior scheme, Staab v. Diocese of St. Cloud continued on page MN DEFENSE s SUMMER 2012

5 Staab v. Diocese of St. Cloud continued from page 26 even a minimally at-fault defendant would have been required to pay a plaintiff 100% of a judgment and been forced to pursue a claim for contribution to recover sums paid above and beyond its allocation of fault often from insolvent or otherwise judgment proof individuals. The revised statute removes this burden from the minimally at fault defendant, and requiring a defendant pay the entire award and be left to seek contribution only in those cases where the defendant is 51% or more at fault. Now that several liability applies as the default rule, plaintiffs may be more inclined to bring claims against persons who actually harmed them. Consider the following scenario. Plaintiff P was injured by the negligence of defendant D and tortfeasor T. P sues D but does not sue T. The jury assigns 55% liability to D and 45% liability to T. Under this scenario, D is jointly liable for the entire jury award regardless of the fact that T is not a party to the action. P is entitled to recover 100% of the judgment and D must pursue a claim of contribution against T to recoup amounts paid above its allocation of fault. Under this scenario, the at-fault defendant will bear the financial burden if T is insolvent. Assume however that the jury assigns 10% fault to D and 90% fault to T. D will simply pay its 10% of the judgment and has no further obligation to pay because D is severally liable. T, a non-party, is not subject to any judgment because judgments against non-parties are not enforceable. Accordingly, P will have no right to collect against T and will not recover 90% of the jury s verdict. However, if P would have sued T in the first instance, P would have a judgment against T and would have the right to recover amounts commensurate with this judgment. Under the revised statute, plaintiffs have an incentive to sue those parties that caused harm because a failure to do so could result in a less than full recovery for the plaintiff. STAAB S IMPACT ON CONSTRUCTION CLAIMS Construction claims such as water intrusion claims often involve multiple tortfeasors who may share some fault for the damages sustained by the property owner. In these cases, typically the property owner sues the general contractor. The general contractor then must determine whether to include any subcontractors as third-party defendants for the purpose of seeking contribution and/or indemnity. 3 Prior to Staab, a lone defendant general contractor faced uncertainty as to whether any benefit existed to 3 A significant number of construction claims involve both contribution and indemnity claims between contractors. Pursuit of indemnity claims is an entirely separate and distinct topic. This article focuses solely on contribution claims. being the only named defendant when the possibility existed that any finding of negligence (assuming the property owner is not at fault) could result in the general contractor owing the entire verdict. Conversely, property owners may not have been concerned about whether they needed to sue subcontractors directly based on the assumption that a finding of negligence against the general contractor would result in a 100% recovery of all damages resulting from the general contractor s negligence. Based on the clarification provided by the court in Staab, both general contractors and property owners need to make strategic decisions based on their analysis of how much fault will ultimately rest with the general contractor in deciding whether to include other subcontractors as either direct defendants or as thirdparty defendants. This will vary from case to case. Where the general contractor shares the majority of the fault, the property owner will most likely not be concerned about including additional subcontractors as defendants. Conversely, the general contractor will want to include potentially liable subcontractors in order to avoid owing 100% of the damages. Where it is uncertain whether the general contractor may have more than 50% at fault, it will be necessary for the property owner to include all potentially at-fault subcontractors in order to make a full recovery. At the same time, the general contractor may not want to include any subcontractors since it may prefer to point at the empty-chair to deflect liability away from it and towards other non-parties. Regardless of how a general contractor analyzes its potential liability at the onset of a construction lawsuit, it must still be mindful of the short two-year statute of limitations to seek contribution based on either the date the general contractor was sued or after it has made payment of a final judgment, paid an arbitration award, or settled with the property owner, whichever occurs earliest. See Minn. Stat STAAB S IMPACT ON EMPLOYER LIABILITY- LAMBERTSON CLAIMS Generally, an employee injured in the work place may not bring common law tort claims against their employer. See Minn. Stat While in most instances the employee cannot bring common law claims against their employer for work-related injuries, an at-fault third-party may seek contribution from the employer for damages owed to the injured employee based on the Minnesota Supreme Court s ruling in Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (Minn. 1977). Contribution claims by non-employer tortfeasors against the employer are commonly known as Lambertson Staab v. Diocese of St. Cloud continued on page 28 MN DEFENSE s SUMMER

6 Staab v. Diocese of St. Cloud continued from page 27 claims. The right of contribution in the Lambertson context was codified in the Workers Compensation Act: Subd. 11. Right of Contribution. To the extent the employer has fault, separate from the fault of the injured employee to whom workers compensation benefits are payable, any non-employer third-party who is liable has a right of contribution against the employer in an amount proportional to the employer s percentage of fault but not to exceed the net amount the employer recovered pursuant to Subd. 6, (c) and (d). The employer may avoid contribution exposure by affirmatively waiving, before selection of the jury, the right to recover workers compensation benefits paid and payable, thus removing compensation benefits from the damages payable by any third party. Minn. Stat , Subd. 11. The employer s Lambertson liability is separate and distinct from the right of subrogation. While the employer s workers compensation carrier subrogation rights stem from the duty to pay compensation benefits under the Part One portion of the workers compensation insurance policy, the employer s duty to pay contribution (Lambertson liability) normally falls under Part Two of the employer s liability portion of the policy. Similar to other liability policies, Part Two normally has a set policy limit which may be less than the Part One workers compensation exposure. In cases involving Lamberston exposure, conflicts may arise for the workers compensation insurer and/or employer when the potential subrogation recovery is greater than the employers liability policy limits under Part Two. In such cases, the insurer must retain separate counsel to pursue subrogation and to defend the contribution claim against the insured since the insured has a potential excess exposure. Based on the court s ruling in Staab, in order to recover for contribution, the non-employer tortfeasor must first be found more than 50 percent at fault. That is because any finding of 50 percent or less would result in a finding that the non-employer tortfeasor was only severally liable thus precluding it from paying more than its fair share. If the non-employer tortfeasor does not pay more than his fair share, no right of contribution will exist. In turn, in cases where an employer s fault is equal to or greater than that of the non-employer tortfeasor, no Lambertson exposure will exist. Note that a finding of less than 50% fault against the non-employer tortfeasor will also reduce the workers compensation insurer s subrogation recovery. As a result of the court s decision in Staab, conflicts resulting from Lambertson exposures exceeding Part Two coverage limits will decrease since no Lambertson exposure will exist in cases where the employer s percentage of fault equals or exceeds the tortfeasor s percentage of fault. As a further result of the decrease in the instances where employers face potential Lambertson contribution claims, the instances where workers compensation insurer and/or employer elect to waiveand-walk under the last sentence of Minn.Stat , subd. 11, which allows the insurer and/or employer to waive its subrogation claim when faced with a claim for contribution, will also decrease. REALLOCATION Following the Court of Appeal s decision in Staab, Mrs. Staab brought a motion for reallocation, alleging 50% of the judgment was uncollectable from her husband. Ms. Staab renewed this motion following the Supreme Court s decision, arguing the remaining 50% of the jury s verdict assigned to Richard Staab should be reallocated pursuant to Minnesota Statute subd 2. Holy Cross opposed this motion, citing the following rationale. (This matter is currently pending before the Stearns County District Court.) Minnesota Statute subd (2) relates to the reallocation of uncollectible portions of a judgment. The statute provides: Upon motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party s equitable share of the obligation is uncollectable from that party and shall reallocate any uncollectable amount among the other parties, including a claimant at fault, according to their respective percentages of fault. A party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to claimant on the judgment. Minn. Stat subd (2). Reallocation is only allowed when joint liability is established and is only possible when judgment can be entered against more than one person. Eid v. Hodson, 521 N.W.2d 862, 864 (Minn. Ct. App. 1994). Schneider v. Buckman, 433 N.W.2d 98 (Minn. 1988) and Hahn v. Tri-Line Farmers Co-op, 478 N.W.2d 515 (Minn. Ct. App. 1991). Accordingly, in determining whether an uncollectable portion of a judgment may be reallocated, one must determine (1) whether there is a judgment to be reallocated; and (2) whether the party to whom the judgment will be reallocated is jointly liable for the award. Where one party is found to be 50% or less at fault, there can be no reallocation of any judgment to that tortfeasor because the party is not jointly liable for any Staab v. Diocese of St. Cloud continued on page MN DEFENSE s SUMMER 2012

7 Staab v. Diocese of St. Cloud continued from page 28 award. Furthermore, where the jury assigns fault to a non-party, the amount of damages commensurate with the non-party s fault cannot be reallocated to a party defendant because, in the case of a non-party, there is no judgment that can be reallocated. Reallocation is only allowed when joint liability is established. Eid v. Hodson, 521 N.W.2d 862, 864 (Minn. Ct. App. 1994). Before reallocation can occur, a determination must be made as to whether any party to whom a judgment is to be reallocated is jointly liable for the portion of the judgment in the first instance. Id. If there is no joint liability for the judgment, there can be no reallocation of that judgment. Id. The reallocation statute applies to reallocate uncollectable amounts of a judgment. Minn. Stat subd 2 (stating upon motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party s equitable share of the obligation is uncollectable from that party ). Judgments against non-parties are unenforceable. See Hurr v. Davis, 193 N.W.943, 944 (1923) (holding that a judgment against persons not parties to the action was clearly void for want of jurisdiction. ) Accordingly, when a jury assigns fault to a non-party and a party alike, if the named party is 50% or less at fault, the judgment will be against the party defendant in an amount commensurate with that party s allocation of fault. Assuming the party defendant pays this judgment, the judgment will be satisfied, leaving no portion of the judgment uncollectable, and therefore nothing to reallocate under Minnesota Statute subd. 2. The de facto position under the amended statute is one of several, rather than joint, liability. Under this scheme, and in accordance with the existing law, persons who are severally liable are not subject to reallocation. As long as a defendant is found to be 50% or less at fault, it would never be subject to reallocation, regardless of whether other tortfeasors were ever made a party to the action. Conversely, if a defendant is found to be 51% or more at fault, it would then be jointly liable for the whole award, and subject to reallocation, regardless of whether other tortfeasors had been made a party to the action. In considering reallocation, the issue is not whether another tortfeasor is a party either to the tort or to the lawsuit the issue is whether a party can be forced to pay more than its fair share of a jury award. The Supreme Court in Staab repeatedly concluded that a severally liable defendant cannot be forced to pay more than its fair share of an award. See Staab v. Diocese of St. Cloud, N.W.2d, 2012 WL at *1 (Minn. 2012). 50% to a nonparty to the lawsuit, Minn. Stat subd. 1 (2010) requires that the defendant contribute to the award only in proportion to the fault attributed to the defendant by the jury. (Id. at *1)[emphasis added]. The difference between the two rules is that a jointly and severally liable defendant is responsible for the entire award, whereas a severally liable defendant is responsible for only his or her equitable share of the award. (Id. at 76)[emphasis added]. We construe this clause [ contributions to awards shall be in proportion to the percentage of fault attributable to each ] to provide that the principle of several liability limits the magnitude of a severally liable person s contribution to an amount that is in proportion to his or her percentage of fault, as determined by the jury. (Id. at 75)[emphasis added]. The 2003 amendments eliminated the blanket exception that each is jointly and severally liable for the whole award and substituted four specific exceptions. In doing so the Legislature explicitly limited the common law principle of joint and several liability to the four enumerated circumstances, thus enabling an injured person to recover more than a tortfeasor s comparativeresponsibility share in only those four circumstances. (Id. at 78). Indeed, the Court acknowledged that forcing a severally liable defendant to pay more than its fair share of an award would wholly eviscerate the meaning of Minnesota Statute subd. 1, commenting: [c]ontrary to the dissent s assertion, the clause [contributions to awards shall be in proportion to the percentage of fault attributable to each] is not made ineffective if a severally liable person who is not a party to the lawsuit and not subject to an adverse judgment makes no contribution. The clause would be ineffective, however, if a severally liable person were compelled to contribute out of proportion to his or her percentage of fault. Id. at 75. The notion that a severally liable defendant is nevertheless obliged to pay 100% of a jury award is contrary to the entire concept of several liability. CONCLUSION In Staab, The Minnesota Supreme Court confirmed sole defendants who are only severally liability under Minn.Stat because their fault does not exceed 50% must only contribute to an award for damages in proportion to their allocated percentage of fault. The court s decision should create an incentive for plaintiffs to sue the tortfeasors who are most at fault for causing injury, and will have an impact on defense strategies in cases where some, but not all, of the potentially at-fault parties are named in the lawsuit. When a jury attributes 50% of the negligence that caused a compensable injury to the sole defendant in a civil action and MN DEFENSE s SUMMER