Products Liability Law Reporter

A federal district court held that under Kentucky law, a court in a diversity case may apportion fault to a party over which it lacks jurisdiction.

Here, after Jack Papineau was diagnosed as having mesothelioma, he and his wife sued Brake Supply and several manufacturers of alleged asbestos-containing products. Brake Supply sought indemnification or apportionment from Fras-Le South America and its American subsidiary, asserting that these third-party defendants had sold asbestos-containing brakes. The court dismissed the claims against Fras-Le based on lack of personal jurisdiction. The court, however, left open the issue of apportionment, and Brake Supply briefed the issue for the court.

The district court held that although Ky. Rev. Stat. Ann. §411.182 allows a court to apportion liability against a tortfeasor that is not actually a defendant, it does not authorize a court to exercise jurisdiction over parties that are not subject to jurisdiction. Citing case law, the court added that, therefore, a court may not impose liability on a party not subject to jurisdiction but may apportion liability to that party to limit the liability of a defendant remaining before the court. Under these circumstances, the court said, apportionment serves merely as a defense to limit the liability of existing parties, not to allow recovery against non-parties.

Applying these principles here, the court found that although it may not hold Fras-Le liable for its relative fault, it may limit Brake Supply’s liability by asking a jury to determine whether Fras-Le was at fault, if at all. Consequently, the court concluded that it must allow an instruction on apportionment provided Brake Supply presented sufficient evidence that a reasonable jury could find Fras-Le liable.

Citation: Papineau v. Brake Supply Co., 2022 WL 2705259 (W.D. Ky. July 12, 2022).