The Fair Responsibility Act of 1986: How Fair Is It 13 Whittier Law Review 1992

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13 Whittier L. Rev. 909 (1992)
The Fair Responsibility Act of 1986: How Fair Is It

handle is hein.journals/whitlr13 and id is 923 raw text is: THE FAIR RESPONSIBILITY ACT
OF 1986: HOW FAIR IS IT?
By ELLYN MOSCOWITZ*
INTRODUCTION
In June of 1986, the California voters approved an initiative mea-
sure, the Fair Responsibility Act' (popularly known as Proposition
51), which has had profound repercussions on tort law within the
state.2 This measure modified the traditional common law joint and
several liability doctrine by limiting an individual tortfeasor's liability
for non-economic damages to a proportion equal to the tortfeasor's
own percentage of fault.3 The California Supreme Court upheld the
constitutionality of Proposition 51 in 1988, though it stated the prop-
osition's language leaves a number of issues of interpretation and
application to be decided in future cases.'
It has only been in the last year that many of these unresolved
issues have made their way to the appellate courts and once again to
the California Supreme Court. Now the question must be asked: Is
the Fair Responsibility Act really fair? For the most part, the
answer to that question depends on who one asks. For the insurance
industry, which created and promoted the initiative,5 the initiative has
been more than fair. Recent court decisions have gone beyond what
Ellyn Moscowitz is an Adjunct Professor of Law at the University of San Francisco
Law School. The author wishes to express her gratitude to R. Jay Engel, and her colleagues at
the University of San Francisco Law School, Marian Shostrom, Peter Honigsberg and Brian
Mikulak, for their insightful comments and criticisms. Further appreciation goes to Steven Kas-
sirer, J.D. 1993, University of San Francisco Law School, for his help in researching the history
of Joint and Several Liability prior to the passage of Proposition 51.
1. CAL. CIV. CODE 壯 1431-1431.5 (Deering 1992).
2. The Fair Responsibility Act, section 1431.1 of the California Civil Code and
Proposition 51 will be used interchangeably throughout this article.
3. Evangelatos v. Superior Court, 753 P.2d 585 (Cal. 1988).
4. Id. at 587.
5. See Steven D. Sugarman, California's Insurance Regulation Revolution: The First Two
Years of Proposition 103, 27 SAN DIEGO L. REV. 683 (1990).