Tortfeasors Act reads in part as follows:
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The Gap Must Be Filled As noted by the Court in Sewer Improvement District v. Delinquent Lands: “A right without a remedy to declare it is not a valuable right.”12 One can only assume that both the General Assembly and the Supreme Court intended the right to several liability to be a “valuable right.” How then does the “valuable right” to several liability take form? Act 1116 of 2013 is the Answer and Survives Constitutional Challenge When considering a constitutional challenge: It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality; every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear. . . . Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. [Johnson.13] In its amended form the Arkansas iteration of the Uniform Contribution Among 40
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§16-61-201. Definitions. As used in this subchapter: (1) “Joint tortfeasor” means two (2) or more persons or entities who may have joint liability or several liability in tort for the same person or property, whether or not judgment has been recovered against all or some of them; and (2) “Several liability” means that each person or entity is liable only for the amount of damages allocated to that defendant in direct proportion to the defendant’s percentage of fault. § 16-61-202. Right of contribution – accrual – prorata share. (a) The right of contribution exists among joint tortfeasors. ... (c) The right of contribution is not limited to money damages but also includes the rights and allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204. ... §16-61-204. Release – effect on injured person’s claim and on right of contribution. (d) When the injured person releases a joint tortfeasor, the remaining defendants are entitled to a determination by the finder of fact of the released joint tortfeasor’s prorata share of responsibility for the injured person’s damages. Attention is also drawn to Section 1 of Act 1116: It is the intent of the General Assembly that the rights afforded to joint tortfeasors by this Act apply with equal force after modification of joint and several liability as provided in § 16-55-201, and that none of the rights granted to tortfeasors by this Act, including allocation of fault and credits for settlement entered into by other joint tortfeasors, shall be denied to joint tortfeasors.14 It is clear from the language in both the legislation and the statute the General Assembly intended for the allocation of fault by a fact finder to be a right, not a procedure. Consequently and as noted by the Court in Roy v. Farmers & Merchants Insurance Company, the judiciary must “give effect to
the intent of the General Assembly.”15 Though the amended UCATA (Act 1116) creates a substantive right to an allocation as to all “joint tortfeasors,” the judiciary is free to craft the procedure by which this right is exercised. While it seems the easiest and best method is to simply send a single verdict interrogatory asking the jury to apportion fault as to all “joint tortfeasors,” the court is free to conduct bifurcated “allocation” proceedings or any other procedure which gives effect to the substantive right of fact finder apportionment as between all “joint tortfeasors.”16 The Challenges to Act 1116 Make No Sense The typical challenge17 to the constitutionality of Act 1116 argues the non-party provisions of the AJCRA18 are unconstitutional and again argue this determination was reaffirmed in subsequent decisions.19 It appears those on opposite sides of this issue have at last found common ground. The constitutional challenge to the non-party fault procedure set forth in Ark. Code Ann. § 16-55-202 was sustained because of the constitutional “separation of powers” doctrine. Unless and until the framers of a constitutional amendment revisit that issue, it is decided. On the other hand, the Court in Johnson20 did not hold the procedure or mechanism in the statute was itself suspect. Rather the court held that any attempt to create procedure, good or bad, by the General Assembly was constitutionally prohibited.21 Those opposed to the shift from “joint and several” to “several” liability frequently make the argument that under ancient law “joint and several” has the same meaning as “joint.”22 We are not required to engage in those sorts of linguistic gymnastics. Just as the Court in Johnson held that the attempt to create procedure by the General Assembly (the inclusion of non-parties on verdict forms) was constitutionally infirm, the Court stated the modification of the then prevailing law of “joint and several” liability to “several” liability was substantive, and consistent with the Arkansas Constitution,23 solely within the purview of the General Assembly. The next argument typically advanced by those challenging Act 1116 centers on those portions of the Act which state: (c) The right of contribution is not limited to money damages but also includes the right to an allocation of fault as among all joint tortfeasors and the rights provided for in § 16-61-204.24