Ask most people, including a fair number of lawyers, what Minnesota did to joint and several liability and you will hear that it was “limited” or “reformed.” That understates it. In 2003 the legislature inverted the default: several liability became the rule and joint and several liability became a four-item exception list.
The first item on that list is a percentage, and it is drawn with no cushion at all. A defendant found 50 percent at fault pays 50 percent. A defendant found 51 percent at fault can be made to pay the entire award. Between those two verdicts lies one point of fault and, in a case with an insolvent or uninsured co-defendant, the whole recovery.
What does Minn. Stat. § 604.02 actually say?
Subdivision 1 is one sentence plus a list, and the first clause is the part people skip:
When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that the following persons are jointly and severally liable for the whole award:
(1) a person whose fault is greater than 50 percent;
(2) two or more persons who act in a common scheme or plan that results in injury;
(3) a person who commits an intentional tort; or
(4) a person whose liability arises under chapters 18B — pesticide control, 115 — water pollution control, 115A — waste management, 115B — environmental response and liability, 115C — leaking underground storage tanks, and 299J — pipeline safety, public nuisance law for damage to the environment or the public health, any other environmental or public health law, or any environmental or public health ordinance or program of a municipality as defined in section 466.01.
This section applies to claims arising from events that occur on or after August 1, 2003.
Read clause (1) precisely. It is “greater than 50 percent.” Not “50 percent or more.” A defendant at exactly 50 percent falls outside the exception and is severally liable for its share only.
Read clauses (2) and (3) just as precisely, because they contain no percentage floor at all. A defendant who commits an intentional tort is jointly and severally liable for the whole award whether the jury assigns that defendant 80 percent of the fault or 5 percent. The same is true of two or more persons who act in a common scheme or plan. In a case with a low-percentage intentional actor and a high-percentage negligent actor, the low-percentage defendant is the one exposed to the entire verdict — one more reason the intentional-conduct allegations that also support a motion to add punitive damages deserve attention early.
What changed in 2003, and why it matters to how you read the section
The 2003 amendment is worth looking at in its struck-and-inserted form, because it shows what the legislature was doing rather than what commentators say it was doing. 2003 Minn. Laws ch. 71, § 1 (S.F. No. 872, signed May 19, 2003) amended § 604.02, subd. 1 to:
- change “When two or more persons are jointly liable” to “When two or more persons are severally liable”;
- replace “except that each is jointly and severally liable for the whole award” with “except that the following persons are jointly and severally liable for the whole award,” followed by the four clauses now in the statute;
- delete the prior rule that “a person whose fault is 15 percent or less is liable for a percentage of the whole award no greater than four times the percentage of fault, including any amount reallocated to that person under subdivision 2”; and
- delete the prior rule that where the state or a municipality was jointly liable and its fault was less than 35 percent, it was jointly and severally liable for no more than twice its percentage of fault.
Two consequences follow that still surprise people.
The “four times” rule is gone. Practitioners and older secondary sources sometimes still describe Minnesota as a four-times-fault jurisdiction for minor tortfeasors. That was the law before August 1, 2003, and it is not the law now. Under the current text a 15-percent defendant outside the four exceptions is liable for 15 percent, not 60.
Governmental defendants lost their special cap and gained nothing in exchange. The 35-percent/twice-fault rule for the state and municipalities was struck in the same amendment. A city is now apportioned under subdivision 1 like any other defendant — which cuts both ways, and interacts with the separate notice and damages-cap regime we set out in making an injury claim against a Minnesota city.
The temporal rule is inside the statute rather than in an uncodified effective-date section: it applies to claims arising from events that occur on or after August 1, 2003. The trigger is the event, not the filing date and not the accrual date.
Worked through: the 50/51 cliff
Assume a $1,000,000 verdict, a plaintiff found free of fault, and two defendants.
Verdict A — Defendant One 51 percent, Defendant Two 49 percent. Defendant One’s fault is greater than 50 percent, so clause (1) applies and Defendant One is jointly and severally liable for the whole award. If Defendant Two is uninsured and judgment-proof, the plaintiff collects the entire $1,000,000 from Defendant One, who then pursues contribution from Defendant Two for its 49 percent — and bears the risk that contribution is worthless.
Verdict B — Defendant One 50 percent, Defendant Two 50 percent. Neither exceeds 50 percent. Neither exception applies. Each is severally liable for $500,000. If Defendant Two is judgment-proof, the plaintiff is the one holding an uncollectible $500,000, subject only to the reallocation motion described below.
One point of fault moved the entire risk of the empty chair from the plaintiff to the solvent defendant. That is the practical content of Minnesota’s apportionment statute, and it is why a special verdict form and the argument over a single percentage point deserve more attention than they usually get.
What happens when a defendant’s share is uncollectible?
Subdivision 2 is Minnesota’s reallocation provision, and it is not the plaintiff-protective device it is often assumed to be:
Upon motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party’s equitable share of the obligation is uncollectible from that party and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. A party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.
Four things to take from that.
There is a deadline, and it is post-judgment. The motion must be made “not later than one year after judgment is entered.” Uncollectibility is frequently not apparent until collection has been attempted, and the year runs anyway. Calendar it at entry of judgment, not when the problem appears.
A claimant at fault absorbs part of the loss. The statute reallocates “among the other parties, including a claimant at fault.” Suppose the fault is apportioned 20 percent to the plaintiff, 50 percent to Defendant One, and 30 percent to Defendant Two, and Defendant Two’s share proves uncollectible. The remaining parties’ fault percentages are 20 and 50, a total of 70. The statute directs reallocation “according to their respective percentages of fault” — so the plaintiff absorbs two-sevenths of the uncollectible amount and Defendant One five-sevenths. Comparative fault is not only a reduction at verdict; under subdivision 2 it is also an allocation of the collection risk.
A plaintiff with no fault absorbs nothing under this sentence. If the claimant is not at fault, the entire uncollectible amount is reallocated among the remaining defendants by their percentages.
Reallocation is not a discharge. The reallocated party remains “subject to contribution and to any continuing liability to the claimant on the judgment.” A defendant whose share went uncollectible in year one and who becomes solvent in year three is still a defendant.
The interaction with the rest of the post-verdict math — collateral source reductions, the comparative fault reduction, and settlement credits, each of which is applied in a fixed order — is set out in Minnesota reduces a verdict three times, in a fixed order.
Product liability is apportioned under a different rule
This is the provision most often missed, and in a product case it changes the answer. Subdivision 3 provides:
In the case of a claim arising from the manufacture, sale, use or consumption of a product, an amount uncollectible from any person in the chain of manufacture and distribution shall be reallocated among all other persons in the chain of manufacture and distribution but not among the claimant or others at fault who are not in the chain of manufacture or distribution of the product. Provided, however, that a person whose fault is less than that of a claimant is liable to the claimant only for that portion of the judgment which represents the percentage of fault attributable to the person whose fault is less.
Two distinct rules live in that subdivision.
The reallocation pool is narrowed to the distribution chain. Where a manufacturer is insolvent, its uncollectible share is reallocated among the other persons in the chain of manufacture and distribution — and expressly not among the claimant or among other at-fault persons outside the chain. A comparatively faulted plaintiff who absorbs part of an uncollectible share in an ordinary negligence case does not absorb it in a product case. That is the opposite of the general subdivision 2 rule, and it is a reason to be careful about how a claim is pleaded and characterized.
The proviso is a separate limit. A person “whose fault is less than that of a claimant is liable to the claimant only for that portion of the judgment which represents the percentage of fault attributable” to that person. A chain participant less at fault than the plaintiff cannot be reached beyond its own percentage, reallocation notwithstanding.
How contribution works under the statute
The statute’s first clause is the contribution rule for severally liable parties: “contributions to awards shall be in proportion to the percentage of fault attributable to each.” Where an exception in subdivision 1 applies and one defendant has paid the whole award, that defendant’s recourse against the others is measured by their fault percentages, and subdivision 2 preserves contribution rights even after a reallocation.
The practical warning is the same one that has always attended joint and several liability: a right of contribution is only as good as the co-defendant’s ability to pay. The 51-percent defendant who satisfies the entire judgment holds a contribution claim, not money. That asymmetry is why apportionment fights in Minnesota are frequently defendant-against-defendant rather than plaintiff-against-defendant, and why the form of a partial settlement — specifically, how it treats the settling defendant’s share and the non-settling defendants’ contribution rights — matters as much as the settlement number. That is a drafting question governed by Minnesota case law rather than by § 604.02, and it should be resolved against current authority in every multi-defendant settlement.
Where the claimant’s own fault fits
Apportionment under § 604.02 presupposes that the claimant can recover at all, which is a separate question answered by Minn. Stat. § 604.01, subd. 1:
Contributory fault does not bar recovery … if the contributory fault was not greater than the fault of the person against whom recovery is sought, but any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering.
Note the singular — “the person against whom recovery is sought.” How that comparison operates when there are several defendants is a question the statutory text does not answer on its face, and it is worth resolving with current authority in any case where the plaintiff’s percentage is close to a defendant’s. Note also § 604.01, subd. 1a, which defines “fault” broadly enough to sweep in strict tort liability, breach of warranty, unreasonable assumption of risk not constituting an express consent or primary assumption of risk, misuse of a product, and unreasonable failure to avoid injury or mitigate damages.
What to do with this
For a plaintiff. Sue everyone who is responsible and confirm coverage early, because several liability means each defendant’s share is only as collectible as that defendant — which is also why uninsured and underinsured motorist coverage does more work in Minnesota than it did before 2003. Build the case for a defendant to cross the 50-percent line where the facts support it, and know that clauses (2) and (3) — common scheme or plan, intentional tort — carry no percentage floor at all. Calendar the subdivision 2 motion from entry of judgment. And if the claim can properly be framed as arising from the manufacture, sale, use, or consumption of a product, understand that subdivision 3 keeps a comparatively faulted claimant out of the reallocation pool.
For a defendant. The percentage argument is the case. A verdict at 50 rather than 51 is not a marginal improvement; in a case with a hollow co-defendant it is the difference between a share and a judgment. Preserve contribution rights, and treat the one-year reallocation window as running against you too.
For everyone. Do not rely on a memory of this statute. It was rewritten in 2003, the rule that most people half-remember was deleted in that rewrite, and the operative words — “greater than 50 percent,” “the whole award,” “including a claimant at fault,” “in the chain of manufacture and distribution” — decide cases.
The observation
Minnesota’s apportionment statute is short, and every fight it produces is a fight over a number the jury writes on a verdict form. The legislature could have chosen a graduated rule, or a cap, or the four-times formula it had already tried. Instead it drew a line at more-than-half and put the entire risk of an uncollectible co-defendant on one side of it or the other.
Lines drawn that way reward preparation. The percentage is not an afterthought to liability — it is the liability, and it is decided by the evidence and the verdict form, both of which are within counsel’s control long before the jury is asked.
Madgett Law, LLC represents injured Minnesotans in multi-defendant cases where apportionment decides the recovery, and handles the post-verdict motion practice — reallocation, contribution, and credits — that follows. If a defendant in your case may be uncollectible, that is a problem with a statute and a deadline attached. Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 604.02 (apportionment of damages) — subd. 1 (several liability as the default, contributions in proportion to fault, the four categories that remain jointly and severally liable for the whole award, including clause (1) “a person whose fault is greater than 50 percent,” clause (2) common scheme or plan, clause (3) intentional tort, and clause (4) the enumerated environmental and public health chapters and laws, and the sentence applying the section to claims arising from events occurring on or after August 1, 2003); subd. 2 (motion not later than one year after judgment is entered, the court’s determination of uncollectibility, reallocation among the other parties “including a claimant at fault, according to their respective percentages of fault,” and the preservation of contribution and continuing liability on the judgment); subd. 3 (product liability reallocation confined to persons in the chain of manufacture and distribution and expressly not among the claimant or others at fault outside the chain, and the proviso limiting a person whose fault is less than the claimant’s to that person’s own percentage). 2003 Minn. Laws ch. 71, § 1 (S.F. No. 872; presented to the governor May 16, 2003 and signed May 19, 2003) — struck-and-inserted text showing the change from “jointly” to “severally” liable, the replacement of “each is” with the four enumerated categories, the deletion of the former rule capping a defendant whose fault was 15 percent or less at four times its percentage of fault, and the deletion of the former rule capping the state or a municipality whose fault was less than 35 percent at twice its percentage of fault. Minn. Stat. § 604.01, subd. 1 (contributory fault does not bar recovery if it “was not greater than the fault of the person against whom recovery is sought,” with damages diminished in proportion) and subd. 1a (definition of “fault”). All from the Minnesota Office of the Revisor of Statutes. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. No outcome is promised or implied.