S.B. 10 Enrolled

LIABILITY REFORM ACT AMENDMENTS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Gregory S. Bell
House Sponsor: Ross I. Romero

LONG TITLE
General Description:
This bill specifies conditions for allocating fault to nonparties in a lawsuit.
Highlighted Provisions:
This bill:
. provides for a reasonable time to designate nonparties to whom fault may be
allocated;
. requires that a party who makes a request to the court to allocate fault to nonparties
to provide specific information about the nonparties; and
. allows the court to deny the request if specific provisions are not complied with.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78-27-38, as last amended by Chapter 95, Laws of Utah 1999
78-27-39, as last amended by Chapter 95, Laws of Utah 1999
78-27-41, as last amended by Chapter 95, Laws of Utah 1999

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 78-27-38 is amended to read:
78-27-38. Comparative negligence.

(1) The fault of a person seeking recovery [shall] may not alone bar recovery by that
person.
(2) A person seeking recovery may recover from any defendant or group of defendants
whose fault, combined with the fault of persons immune from suit and nonparties to whom fault
is allocated, exceeds the fault of the person seeking recovery prior to any reallocation of fault
made under Subsection 78-27-39 (2).
(3) No defendant is liable to any person seeking recovery for any amount in excess of the
proportion of fault attributed to that defendant under Section 78-27-39 .
(4) (a) [In determining the proportionate fault attributable to each defendant, the] The
fact finder may, and when requested by a party shall, [consider the conduct of any person who
contributed to the alleged injury regardless of whether the person is a person immune from suit or
a defendant in the action and may allocate fault] allocate the percentage or proportion of fault
attributable to each person seeking recovery, to each defendant, to any person immune from suit,
and to any other person [whether joined as a party to the action or not and whose identity is
known or unknown to the parties to the action, including a person immune from suit who
contributed to the alleged injury] identified under Subsection 78-27-41 (4) for whom there is a
factual and legal basis to allocate fault. In the case of a motor vehicle accident involving an
unidentified motor vehicle, the existence of the vehicle shall be proven by clear and convincing
evidence which may consist solely of one person's testimony.
(b) Any fault allocated to a person immune from suit is considered only to accurately
determine the fault of the person seeking recovery and a defendant and may not subject the
person immune from suit to any liability, based on the allocation of fault, in this or any other
action.
Section 2. Section 78-27-39 is amended to read:
78-27-39. Separate special verdicts on total damages and proportion of fault.
(1) The trial court may, and when requested by any party shall, direct the jury, if any, to
find separate special verdicts determining the total amount of damages sustained and the
percentage or proportion of fault attributable to each person seeking recovery, to each defendant,

to any person immune from suit, and to any other person [whether joined as a party to the action
or not and whose identity is known or unknown to the parties to the action, including a person
immune from suit who contributed to the alleged injury] identified under Subsection 78-27-41 (4)
for whom there is a factual and legal basis to allocate fault.
(2) (a) If the combined percentage or proportion of fault attributed to all persons immune
from suit is less than 40%, the trial court shall reduce that percentage or proportion of fault to
zero and reallocate that percentage or proportion of fault to the other parties and those identified
under Subsection 78-27-41 (4) for whom there is a factual and legal basis to allocate fault in
proportion to the percentage or proportion of fault initially attributed to each [party] by the fact
finder. After this reallocation, cumulative fault shall equal 100% with the persons immune from
suit being allocated no fault.
(b) If the combined percentage or proportion of fault attributed to all persons immune
from suit is 40% or more, that percentage or proportion of fault attributed to persons immune
from suit may not be reduced under Subsection (2)(a).
(c) (i) The jury may not be advised of the effect of any reallocation under Subsection (2).
(ii) The jury may be advised that fault attributed to persons immune from suit may
reduce the award of the person seeking recovery.
(3) A person immune from suit may not be held liable, based on the allocation of fault, in
this or any other action.
Section 3. Section 78-27-41 is amended to read:
78-27-41. Joinder of defendants.
(1) A person seeking recovery, or any defendant who is a party to the litigation, may join
as a defendant, in accordance with the Utah Rules of Civil Procedure, any person other than a
person immune from suit [who may] alleged to have caused or contributed to the injury or
damage for which recovery is sought, for the purpose of having determined their respective
proportions of fault.
(2) A person immune from suit may not be named as a defendant, but fault may be
allocated to a person immune from suit solely for the purpose of accurately determining the fault

of the person seeking recovery and [a defendant] all defendants. A person immune from suit is
not subject to any liability, based on the allocation of fault, in this or any other action.
(3) (a) A person immune from suit may intervene as a party under Rule 24, Utah Rules of
Civil Procedure, regardless of whether or not money damages are sought.
(b) A person immune from suit who intervenes in an action may not be held liable for
any fault allocated to that person under Section 78-27-38 .
[(4) A party seeking to allocate fault shall identify in its answer those persons then
known to that party who may be at fault and shall identify within a reasonable time any
additional persons later discovered to have been at fault.]
(4) Fault may not be allocated to a non-party unless a party timely files a description of
the factual and legal basis on which fault can be allocated and information identifying the
non-party, to the extent known or reasonably available to the party, including name, address,
telephone number and employer. The party shall file the description and identifying information
in accordance with Rule 9, Utah Rules of Civil Procedure or as ordered by the court but in no
event later than 90 days before trial as provided in Rule 9, Utah Rules of Civil Procedure.