Apart from rare cases like the massive, multiple car pileup which recently occurred near Dallas, most auto accident cases involve two or possibly three vehicles at most where the major focus is on quantifying the extent of the injuries and determining which driver was at fault. But what happens where one of the drivers flees the scene? Has no liability insurance coverage? Florida is a comparative negligence state. As a result, juries have the ability to apportion fault between the parties, even those not directly involved in the lawsuit or present at trial.

This occurrence was a result of the case of Fabre v Marin, a case decided by the Florida Supreme Court in 1993. In that case, found at 623 So2d 1182( Fla. 1993), Mrs. Marin was injured in an auto accident while a passenger in a car being driven by her husband. She thereafter sued Fabre for negligence. At trial, Fabre asked the judge to permit the jury to decide whether Mr. Marin was at least partially to blame for the accident. The trial judge agreed to bifurcate the trial into two parts: in the first part, Mrs. Marin's damages were determined. The second deliberation would decide liability regarding Fabre, Mr. Marin, or both. The jury subsequently returned a verdict of $350,000.00 and thereafter found that Mr. Marin was 50% liable. The judge overruled the verdict on liability on the basis of interspousal immunity and entered judgment against Fabre for the entire amount.

On appeal, the Florida Supreme Court saw that outcome as unfair and held that in all cases where there is an issue of shared liability between the parties, the jury can weigh the potential liability of any actor who might have been involved. In the typical two or three car crash, this is not a problem. But what if the defendant alleges a hit and run driver was at fault? What if the plaintiff settles with one of the parties before trial? The verdict form will contain a name of a "defendant" who doesn't even appear at the trial. This is the "straw man" or "empty chair" defense. As a result of the Supreme Court's decision, the phantom defendant is now usually referred to as the "Fabre" defendant. Makes life a bit easier for the defendant to be able to blame a third party who does not defend himself. In those cases it is up to the plaintiff to provide a defense to a third party he or she believes was not responsible.

To be fair, Florida law requires the defendant to prove that the "Fabre" defendant was at fault by a preponderance of evidence - the same burden of proof borne by the plaintiff. But what is the result? While I am not a fan of it, the creation of the "Fabre" straw man has forced plaintiffs to sue everyone who may be only peripherally involved in the accident, regardless of the evidence. While that may needlessly drag parties into the litigation, at least they are able to defend themselves through their own attorneys. At trial, it is up to the plaintiff's attorney to convince the jury which parties are at fault. Should you be involved in an accident where numerous parties may be at fault, please contact me at my office at 727-822-3700 to discuss your options and develop a strategy to defuse those persons truly at fault from blaming the straw man named Mr. Fabre sitting in the empty chair at trial.