In our judgment, plaintiffs' counsel should take an offensive posture with regard to nonparty defenses that are asserted by defendants and aggressively seek to force defense counsel to properly identify nonparties in a timely manner and move to strike inappropriate nonparty defenses.
Indiana's Comparative Fault Act(1) provides that in an action based upon fault, the trial court shall instruct the jury that in reaching its verdict it shall first determine the percentage of fault of the claimant, of the defendant(s), and of any person or entity who is a nonparty. The total of those percentages of fault must equal 100%.(2) If the claimant's percentage of fault is not greater than 50% of the total fault, the jury shall next determine the total amount of the claimant's damages without regard to fault.(3) The jury shall next multiply the percentage of fault of each defendant by the total amount of the claimant's damages and enter a verdict against each defendant in an amount that equals the product of that multiplication.(4)
The nonparty defense is a powerful tool because the claimant loses the percentage of his/her damages that equals any percentage of fault that is attributed to a nonparty. Therefore, defendants search for individuals and entities to name as nonparties to reduce their liability to a plaintiff. Defense counsel frequently name nonparties whose legal liability to the plaintiff is marginal (or nonexistent) and whose percentage of fault is small at best. Once a defendant pleads a nonparty defense, the plaintiff is then put in the position of making a tactical decision as to whether to add the nonparty as a defendant in the case.
I.C. 34-4-33-10(b) provides that the burden of proving a nonparty defense rests with the defendant, who must affirmatively plead the defense. If the plaintiff adds the nonparty as a defendant in the case, the plaintiff then bears the burden of proof with regard to that party's fault. Therefore, if a nonparty's fault is slight and/or the nonparty's liability is marginal, plaintiff's counsel may decide that the better strategy is not to sue the nonparty. The purpose of this article is to suggest steps that should be taken to identify nonparty defenses, determine whether asserted nonparty defenses are valid, and to eliminate invalid nonparty defenses from a case.
Plaintiffs counsel must take the offensive with regard to identifying nonparty defenses and determining whether they are valid. I.C. 34-4-33-10(c) provides that:
A nonparty defense that is known by the defendant when he files his first answer shall be pleaded as a part of the first answer. A defendant who gains actual knowledge of a nonparty defense after the filing of an answer may plead the defense with reasonable promptness. However, if the defendant was served with a complaint and summons more than one hundred fifty (150) days before the expiration of the limitation of action applicable to the claimant's claim against the nonparty, the defendant shall plead any nonparty defense not later than forty-five (45) days before the expiration of that limitation of action. The trial court may alter these time limitations or make other suitable time limitations in any manner that is consistent with:
(1) giving the defendant a reasonable opportunity to discover the existence of a nonparty defense; and
(2) giving the claimant a reasonable opportunity to add the nonparty as an additional defendant to the action before the expiration of the period of limitation applicable to the claim. [Emphasis added.]
In view of I.C. 34-4-33-10(c), plaintiffs counsel should generally file suit at least 150 days prior to the expiration of the applicable statute of limitations. However, that is not always possible -- as in the situation where the plaintiff does not hire counsel until shortly before the expiration of the statute of limitiations. In addition, there are situations in which defendants name nonparties who plaintiff's counsel decides to sue, who then name other nonparties less than 150 days prior to the expiration of the statute of limitations. In such situations, pursuant to I.C. 34-4-33-10(c), plaintiff's counsel should ask the court to alter the time limitations for pleading nonparty defenses.
