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Billings v. Aeropres Corp.

November 9, 2007


The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge


Plaintiff John Billings ("Billings") has filed a Motion to Strike Defendant's Notice of Non-party Liability and Motion for a Declaratory Judgment.*fn1 Defendant Aeropres Corporation ("Aeropres") has responded.*fn2

This is a products liability case arising from an explosion and fire which caused personal injury in a work-related accident. Aeropres supplied odorless propane gas to Billings's employer. Billings alleges, among other things, that Aeropres failed to warn of its product's inherent dangers. Aeropres filed notice that the fault of Billings's employer should be considered and apportioned.

Billings asks to strike this notice,*fn3 which was filed under Ark. Code Ann. § 16-55-202, and also asks that this provision be declared unconstitutional.

Aeropres counters that the Arkansas General Assembly abolished joint and several liability because it is in the public's interest to apportion the fault of all individuals and entities --even that of non-parties. Aeropres also argues that Ark. Code Ann. § 16-55-202 is constitutional.

I. Background

As a result of the accident in this case, Billings received benefits under the Arkansas Workers' Compensation Act.*fn4 Employers are immune from tort liability for work-related injuries because expeditious payment of benefits under workers' compensation is the exclusive remedy for such injuries.*fn5

Traditionally, fault in Arkansas could not be apportioned to an immune employer*fn6 or to any other non-party.*fn7 This rule was based, in part, on Arkansas's Comparative Fault Act, which provides that a plaintiff's fault may be compared with the fault chargeable to "the party or parties from whom [he] seeks to recover damages."*fn8

The 2003 Arkansas Civil Justice Reform Act ("CJRA")*fn9 abolished joint and several liability:*fn10 "[E]ach defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault."*fn11 The CJRA also includes the following provision:

In assessing percentages of fault, the fact finder shall consider the fault of all persons or entities who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether the person or entity was or could have been named as a party to the suit.*fn12

Aeropres argues that this provision applies to employers just as it does to other non-parties, and has designated Billings's employer as a non-party responsible for a portion of Billings's damages.

The CJRA sets out a notice procedure requiring a defendant to file notice that identifies any non-party allegedly at fault for the injury, along with a brief statement that describes the basis for alleging fault.*fn13 In this case, Aeropres designated Detco Industries ("Detco"), Terco Incorporated ("Terco"), and David Maddox Elliott ("Elliott") as non-parties whose fault should be apportioned.*fn14 Aeropres's notice alleges that: (1) Detco failed to provide a safe workplace; (2) Elliott negligently maintained and operated the aerosol equipment at the facility; (3) and Terco manufactured faulty equipment.*fn15

Billings objects to weighing the fault of his employer, Detco, or of Elliott, another Detco employee, but concedes that fault may be apportioned to Terco. Billings asserts that Detco and Elliottare immune from civil liability,*fn16 arguing that they are not tortfeasors whose fault can be weighed by a jury. Billings also challenges the constitutionality of the CJRA alleging that (1) it infringes on the fundamental right to trial by jury, which requires a strict-scrutiny standard of review; (2) it fails even the rational-basis test because there is no connection between the purpose of the legislation and apportioning fault to a non-party; and (3) it violates substantive due process because it is fundamentally unfair.

Aeropres counters that, even before the CJRA, defendants were permitted to prove that a plaintiff's damages were caused by a non-party.*fn17 Aeropres argues that an employer's faulty conduct has always been considered in civil cases, when a defendant attempts to place blame for an accident on an absent person or entity, i.e., the "empty chair defense."

With respect to Billings's constitutional challenge, Aeropres responds that: (1) a constitutionally protected right has not been identified; (2) at most, the CJRA is subject to rational-basis review; and (3) apportioning fault to a non-party passes the rational basis test.

II. Standard of Review for Constitutional Challenges

A. Rational Basis

If a statute does not affect a fundamental right, its constitutionality will be upheld as long as it bears a rational connection to some legitimate government purpose.*fn18 Under this test, the burden is on the party challenging the statute, and the challenger must show that the statute is arbitrary and irrational.*fn19 The Arkansas Supreme Court also applies the rational-basis test and will uphold a statute if it is not the product of capricious government action.*fn20

B. Strict Scrutiny

A statute that infringes on a fundamental constitutional right is subject to strict scrutiny.*fn21

Under strict scrutiny, a statute is valid only if it is "narrowly tailored to serve a compelling state interest."*fn22 The party defending the constitutionality of a statute has the burden of proof under the strict scrutiny test.*fn23

III. Rules of Statutory Construction

A. Interpreting Statutes to Conform to the Constitution

Statutes are construed to be constitutional, when possible.*fn24 Under the canon of constitutional avoidance, every reasonable interpretation must be made in order to save a ...

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