In T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc. (2D08-78) the Second DCA affirmed the trial court's order dismissing the case. The court stated:
All of these cases, however, were decided before the current version of section 768.81 was enacted. That section now provides that in negligence cases such as this one, the court shall enter judgment against each party liable on the basis of such party's percentage of fault 'and not on the basis of the doctrine of joint and several liability.' § 768.81(3). In order to allocate any fault to a nonparty, a defendant must affirmatively plead this fault and prove it at trial 'by a preponderance of the evidence.' § 768.81(3)(a) & (b).
In this case, very similar procedures are available to T & S, except that Wink would not be a named party. T & S has the opportunity to plead that Wink is partially or completely at fault and the cause of the plaintiffs' injuries. The evidence would presumably be the same whether presented in this case under the provisions of section 768.81(3) or in an action brought under the Uniform Contribution Among Tortfeasors Act. The jury would determine the same issues under section 768.81(3) as it would in a third-party action, and it is unlikely that T & S will be required to pay more than its pro rata share of any common liability. While the cases cited in this opinion may not have been overruled by the enactment of the current version of section 768.81, they appear to have been rendered obsolete, at least in cases like this one. This decision does not determine any rights T & S may have if it elects to settle the plaintiffs' claims in exchange for a general release which includes Wink.
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