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III. Allocation of Fault

1. Contribution, Joint & Several Liability Abolished
2. Allocation of Fault to Absent Parties
3. Allocation of Fault to Employers
4. Statute of Limitation Doesn't Apply to Equitable Apportionment

A. Contribution, Joint & Several Liability Abolished

In 1989, Alaska abolished the system of joint and several liability which previously held each tortfeasor fully liable for the injured party's damages. Robinson v. Alaska Properties and Inv., Inc., 878 F. Supp. 1318, 1321 (D. Alaska 1995); Benner v. Wichman, 874 P.2d 949, 955 (Alaska 1994).¹ Alaska has adopted a system of pure several liability, in which a plaintiff "[can] only recover from each tortfeasor in the proportion that his fault played to the total fault of all the persons and entities at fault including the plaintiff herself." Robinson, 878 F. Supp. at 1321; AS 09.17.080.

Prior to 1989, Alaska applied the Uniform Contribution Among Joint Tortfeasors Act. With the adoption of Alaska's earlier tort reform initiative, which became effective on March 5, 1989, contribution was abolished in Alaska. Since that time Alaska has followed a pure several liability system which holds each tortfeasor liable only for their relative proportion of fault. AS 09.17.080(c).

B. Allocation of Fault to Absent Parties

Prior to the Tort Reform Act of 1997, the Alaska courts allowed a defendant to allocate a percentage of fault to a third party under the theory of equitable apportionment. However, a defendant who wished to allocate fault to a non-party was required to join the party to the action. Benner v. Wichman, 874 P.2d 949 (Alaska 1994) (fault may not be allocated to individuals who may have been at fault, but who were not properly joined as parties).

Under the 1997 Tort Reform Act, it is no longer necessary for a defendant to join a party in order to allocate fault in all situations. Fault may now be apportioned to non-parties if the parties did not have "sufficient opportunity to join" the absent party. The statute holds there is not "sufficient opportunity to join" if the party is outside the jurisdiction of the court, is not reasonably locatable, or where joinder is precluded by law. Where a party to an action has sufficient opportunity to join a party, but chooses not to do so, fault still cannot be allocated to the absent party. AS 09.17.080.

C. Allocation of Fault to Employers

Prior to the 1997 Tort Reform Act, fault could not be allocated to employers or co-employees who were at fault for injuries to a worker because of the worker's compensation bar. Lake v. Construction Machinery, Inc., 787 P.2d 1027 (Alaska 1990). Under the 1997 Tort Reform statute, fault may be allocated to employers and co-employees, although they cannot be held liable to plaintiff for damages.

D. Statute of Limitation Doesn't Apply to Equitable Apportionment

The 1997 Tort Reform Act is committed to allowing equitable apportionment of fault among defendants. The Alaska Supreme Court made this abundantly clear in Alaska General Alarm v. Grinnell, in which the court held a third-party defendant could be sued for apportionment of fault even after the statute of limitation on the underlying claim had run. Alaska General Alarm v. Grinnell, 1 P.3d 98 (Alaska 2000) (statute of limitation for tort actions does not apply to claims for equitable apportionment). Alaska General Alarm further held that the third-party defendant must pay damages to the plaintiff for its percentage of fault, even if the third-party claim is brought after the statute of limitation has run.

The plaintiff, however, cannot bring a direct action against the third-party defendant after the statute of limitations has run. Janitschek v. U.S., 2002 WL 31027964 (9th Cir. 2002).

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