IN AUTOMOBILE ACCIDENTS, THE DIFFERENCE
BETWEEN ONE AND ZERO IS MORE THAN ONE –
AN EXPLANATION OF THE DIFFERENCE
BETWEEN JOINT AND SEVERAL LIABILITY
In applying the principles of comparative negligence under Nevada
law, the difference between zero and one can mean the difference between
being fully compensated for your injuries, and receiving little or no
compensation at all. This is because Nevada law will apply “joint and
several” liability to all negligent defendants in instances where the victim –
(frequently a passenger in an auto accident) - is free of any contributory
negligence, i.e., 0% negligent. When “joint and several” liability applies,
each defendant is liable to the injured victim for 100% of their damages,
even if such defendant’s comparative fault is only 1%.
This is different from the situation where the victim is partially at fault
for their own injuries. You see, when the victim is partially at fault for the
accident that caused their injuries, even just 1%, the liability of the
defendants will be “several,” and that means each defendant will only be
required to pay their proportionate share of the victim’s damages.
In the real world, this can greatly impact the amount that an injured
person can recover. This is because you may have two defendants, with only
one of them having insurance or other assets that are adequate to fully
compensate the injured person.
By way of example, assume you have a victim of an automobile
accident whose total damages would be $100,000, with an 89% at fault
defendant having a $15,000 insurance policy, and a 10% at fault defendant
having a $500,000 insurance policy. If there is only “several” liability due to
the victim being 1% or more at fault, the victim will be able to recover the
$15,000 in policy limits from the 89% at fault defendant, but will only
recover 10%, i.e., $10,000 from the 10% at fault defendant. Thus, despite
having $100,000 in damages, the victim’s recovery will only be $25,000.
In comparison, if the victim of the automobile accident is negligent
free, liability will be “joint and several,” and they will be able to recover the
full $100,000 in damages from either defendant, even a defendant who only
bears 1% of the total fault. In such instance, it will up to the defendants to
seek reimbursement from one another for any amount they may have paid in
excess of their proportionate fault.
This result may seem odd, but it is mandated by Nevada Revised
Statutes 41.141, as interpreted by applicable case law. The pertinent text of
NRS 41.141 is as follows:
NRS 41.141 When comparative negligence not
bar to recovery; jury instructions; liability of multiple
defendants.
1. In any action to recover damages for death or
injury to persons or for injury to property in which
comparative negligence is asserted as a defense, the
comparative negligence of the plaintiff or the plaintiff’s
decedent does not bar a recovery if that negligence was
not greater than the negligence or gross negligence of the
parties to the action against whom recovery is sought.
2. In those cases, the judge shall instruct the jury
that:
(a) The plaintiff may not recover if the plaintiff’s
comparative negligence or that of the plaintiff’s decedent
is greater than the negligence of the defendant or the
combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to
recover, it shall return:
(1) By general verdict the total amount of
damages the plaintiff would be entitled to recover
without regard to the plaintiff’s comparative negligence;
and
(2) A special verdict indicating the percentage of
negligence attributable to each party remaining in the
action.
…….
4. Where recovery is allowed against more than one
defendant in such an action, except as otherwise provided
in subsection 5, each defendant is severally liable to the
plaintiff only for that portion of the judgment which
represents the percentage of negligence attributable to
that defendant…
The seminal case in Nevada for applying joint and several liability to
all defendants where the injured person is free of negligence is Buck v.
Greyhound Lines, 105 Nev. 756, 783 P.2d 437 (1989). In Buck, two threeyear-old twins were severely injured in an automobile versus bus accident,
while they were sleeping in the backseat. Since they were negligent free
passengers, the Nevada Supreme Court held that the comparative negligence
statute did not apply to them, and instead of being only “severally” liable,
each of the defendants were “jointly and severally” liable for the injuries.
The Court explained the rationale for its decision as follows:
“In the instant case, claims asserted on behalf of the
three-year-old twins sleeping in the Bucks' Mustang at
the time of the collision would not, as a matter of law, be
subject to the defense of contributory negligence.
Therefore, the statute has no application to Tina and
Heather and the judgments entered and to be entered in
their favor are to be joint and several as to all defendants.
We realize that the result of the entry of joint and several
judgments against all defendants may cause substantial
inequities. Such a contingency has always been a
possible if not probable result of the application of the
common law rule. It is apparent, however, that the rule
favored the proposition that it is better to fully
compensate an innocent victim of the combined
negligence of multiple defendants than to assure that
each defendant is held responsible only for his
proportionate share of the plaintiff's damages. If the
general rule is to be changed, we are content to leave it to
the Legislature to do so.” (Emphasis added). See 105
Nev. at 763-764.
Thus, when it comes to individuals who are injured through no fault
of their own, Nevada law favors the interest of the victim over the interest of
the tortfeasors, increasing the likelihood of full compensation being afforded
to victims of the negligence of others. This approach extends not only to
negligent free passengers, but also to those drivers whose actions did not
contribute to the cause of the auto accident.
In summary, under Nevada law, the difference in recovery between a
0% negligent person and a 1% negligent person can be considerable, due to
the decisions establishing joint and several liability on the part of all
defendants causing harm to a negligent free victim. So, when it comes to
compensation for victims of automobile accidents, it is fair to say that under
Nevada law, the difference between one and zero can be much, much more
than one.
© 2010 Foley & Oakes, PC