Murphy's law

The matter on review in Allen seemed to have been whether non-settling defendants are jointly and severally liable for the whole delay damages award, or merely liable according to their individual share of fault. This is somewhat different from the issue that ultimately was decided.



The jury verdict in Allen was nearly $2.9 million. PennDot’s share of fault was 40 percent. Ignoring joint and several liability, the trial court molded the verdict against PennDot to reflect the $250,000 sovereign damages cap plus its 40 percent share of total delay damages, an extra $500,000.



This spared the commonwealth from having to pay the initial tab for more than $1 million in delay damages and then having to chase its co-defendant for contribution.



The Commonwealth Court, relying heavily on U.S. Fidelity & Guaranty Co. v. Royer Garden Center and Greenhouse Inc., 598 A.2d 593 (Pa. Commw. 1991), affirmed, apparently rejecting the joint and several liability concept for paying delay damages.



On joint and several liability for delay damages in general, the Supreme Court majority was quite clear. The Commonwealth Court and the trial court had erred.



“We hold as a general precept,” the majority wrote, “Rule 238 damages awarded against all defendants in a negligence action are properly aggregated with the verdict such that the defendants are jointly and severally liable for the aggregated delay damages.”

Good News for the Commonwealth

With equal clarity, however, the majority parted company with the 1992 Court that handed down Woods, and gave sovereign parties a new exception from the “general precept.” Interpreting the language of Rule 238 to conform to the Comparative Negligence Act, 42 Pa. C.S. Section 7102(b), and the Sovereign Immunity Act, 42 Pa. C.S. Section 8522(a), the court found that the Woods adjudication was misguided.



In sum, it observed that Section 8522(a) had made sovereign immunity a “bar to an action against commonwealth parties,” except, of course, to the extent waived by the damages cap. In turn, it said joint and several liability under the Comparative Negligence Act applied to a “defendant against whom the plaintiff is not barred from recovery.”



Putting this “two and two” together, the majority reasoned that joint and several liability as defined in the Comparative Negligence Act is subject to the “bar” of sovereign immunity as measured by the $250,000 damages cap. Reviewing language in Rule 238 that does not specifically address the commonwealth as a defendant, the majority concluded, “It defies reason to suggest that the basis for calculating such compensation could be anything other than the amount the commonwealth party could actually be responsible for paying to the plaintiff.”



Hence, the commonwealth is not jointly and severally liable for delay damages based on the jury’s total award of damages. Instead, its Rule 238 liability is to be calculated by using its statutory cap as a maximum and applying the Rule 238 formula separately. Woods is history.

Rule 238: Substance or Procedure?