Legal Memorandum: Apportionment of Fault in KY

Issue: Whether, under Kentucky law, a named but unserved entity is a party to an action for purposes of apportionment of fault?

The matter is governed by Kentucky Revised Statutes § 411.182.  There are no Kentucky cases directly addressing this point. Language in two recent Kentucky decisions suggesting that a party for purposes of K.R.S. § 411.182 refers only to entities actively involved in the litigation suggests that a named but unserved entity may not be considered a party for purposes of allocating fault.

The controlling statute provides in its entirety as follows:

(1)               In all tort actions, including products liability actions, involving fault of more than one party to the action, including third‑party defendants and persons who have been released under subsection (4) of this section, the court, unless otherwise agreed by all parties, shall instruct the jury to answer interrogatories or, if there is no jury, shall make findings indicating:

(1)               The amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and

(2)               The percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third‑party defendant, and person who has been released from liability under subsection (4) of this section.

(2)               In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.

(3)               The court shall determine the award of damages to each claimant in accordance with the findings, subject […]