United States District Court for the Western District of Kentucky, Owensboro Division, July 12, 2022

In this asbestos action, the plaintiff Jack Papineau sued various manufacturers alleging that these manufacturers produced asbestos-containing products, which caused plaintiff’s mesothelioma. One of the defendants, Brake Supply, sought indemnification or apportionment from an outside party, Frans-Le South America (“Fras-Le”), alleging that Frans-Le sold Brake Supply asbestos-containing brakes. The court dismissed Brake Supply’s indemnification claims against Frans-Le for a lack of personal jurisdiction. However, the court left the question of apportionment open for further briefing.

Kentucky law allows for apportionment against a tortfeasor who is “not actually a defendant” because of dismissal or settlement. Importantly, apportionment does not impose liability or warrant a judgement; rather, it only serves to determine the percentage of total damages, leaving the other parties responsible only for the remaining percentage of the damages. In sum, apportionment serves “purely as a defense to limit the liability of the existing parties rather than to allow recovery against non-parties”.

In deciding on apportionment here, the court noted other jurisdictions that allow apportionment against parties that were dismissed for lack of jurisdiction. Ultimately, the court found that there was no federal Due Process concern with apportioning fault against a party over which the court lacked jurisdiction because apportionment affects the existing parties, rather than the absent party. As such, the court held that, while it may not hold Fras-Le liable for its relative fault, it may limit Brake Supply’s liability by asking a jury to determine Frans-Le’s relative fault. For these reasons, the court allowed a jury instruction on apportionment, and Brake Supply was permitted to present evidence regarding Frans-Le’s potential fault for the relevant conduct at issue. 

Read the full decision here