What Is a Fabre Defendant in a Florida Lawsuit?

In a Florida lawsuit, a Fabre defendant is a person or company that isn’t named in your case but whose fault the jury is still allowed to consider when dividing up blame for your injuries. The practical consequence is blunt: every percentage of fault the jury assigns to that absent party is a share of your damages the named defendant doesn’t have to pay, and that you probably won’t collect from anyone. The term comes from a 1993 Florida Supreme Court decision, and the rule is now built into Florida’s comparative fault statute.¹

Why a Fabre Defendant Costs You Money

Florida requires courts to enter judgment against each liable party based only on that party’s own percentage of fault.¹ No one has to cover anyone else’s share. When the jury puts a nonparty on the verdict form and assigns them fault, that slice of your damages is legally theirs to pay, not the named defendant’s.

Consider a $200,000 crash case. The jury decides the named defendant is 50 percent at fault, a third driver who was never sued is 30 percent at fault, and you are 20 percent at fault. The named defendant owes you $100,000. Your own 20 percent ($40,000) comes off the top. The absent driver’s 30 percent ($60,000) is a judgment you’d have to chase separately, if you can find them and if they have anything worth collecting.

Florida largely eliminated joint and several liability for negligence actions, so if the Fabre defendant can’t be found or has no money, no one else picks up that share.² The plaintiff carries that risk.

The 50 Percent Bar Makes This Worse

Since March 2023, a plaintiff found more than 50 percent at fault for their own injury recovers nothing in most Florida negligence cases.¹ A Fabre defendant can push you past that line indirectly: the more fault the jury spreads across the room, the easier it is for your own share to tip over the threshold.

One carve-out matters. The 50 percent bar does not apply to personal injury or wrongful death claims arising from medical negligence under Chapter 766.¹ In a medical malpractice case, a plaintiff who bears more than half the fault can still recover a proportional share.

Who Can Be Named

Almost anyone whose negligence may have contributed to the injury can be designated as a Fabre defendant. Common examples:

Other drivers in a multi-vehicle wreck, including ones who left the scene or already settled.
Property owners or management companies in a premises case.
Manufacturers or distributors of equipment that may have failed, even if you chose not to sue them.
Parties who settled with you earlier and are no longer in the case but still appear on the verdict form.
Your own employer, though workers’ compensation immunity complicates whether a specific percentage can be assigned on the verdict form; the defense may still argue the employer’s conduct caused the harm.

Even an unidentified person can be designated if there’s evidence of their existence and their role. A hit-and-run driver who was never caught can end up on the verdict form.

How Defendants Put a Nonparty on the Verdict Form

A defendant has to assert the nonparty’s fault as an affirmative defense in its pleadings, identifying who the person is and why they bear responsibility.² Vague or boilerplate assertions can be challenged.

Florida has no single statewide deadline for naming a Fabre defendant. Individual circuits set cutoffs through pretrial orders, and in some circuits the deadline falls 45 days or more before the pretrial conference. Missing the deadline can mean the court refuses to put the nonparty on the verdict form.

At trial, the defendant carries the burden of proving the Fabre defendant’s share of fault with real evidence, not speculation. The jury then receives instructions to consider the fault of all identified parties, including nonparties, and assigns percentages accordingly.³

What You Can Do About It

A Fabre designation isn’t something you have to passively accept. Several responses are available, and the earlier you act, the more options you keep.

Sue the nonparty directly if the statute of limitations hasn’t run. Any fault assigned to them becomes a judgment you can actually enforce. Florida has no statutory provision that extends the limitations period once a Fabre defendant is designated, so this window can close quickly.²
Move to strike the designation if the defense is vague, unsupported, or filed too late.
Seek sanctions under Section 57.105 if the Fabre defense has no reasonable factual or legal basis. Attorney’s fees may be awarded.²
Attack the evidence at trial. Cross-examine the defense’s witnesses on causation and present your own proof that the named defendant, not the absent party, caused the harm.

The limitations trap deserves emphasis. By the time a defendant names a Fabre nonparty, months or years may have passed since the injury. If the clock has already run on the nonparty, you can’t sue them, and whatever share of fault the jury hands them is money you’ll never see. Watching the limitations period on every potentially responsible party, from day one of the case, is the single most important defensive move a plaintiff can make.

How It Shapes Settlement

Fabre exposure drives settlement talks as much as it drives trial strategy. A named defendant with a plausible nonparty to point at knows a jury might park 20, 30, or 50 percent of the fault on someone you can’t collect from. That knowledge pushes settlement offers down.

From your side, the math gets uncomfortable. Taking less than full damages may still beat going to trial and watching a jury split fault with an absent party. In multi-party Florida injury cases, Fabre exposure is often the most contested issue in the room long before anyone picks a jury.

1
Florida Senate. Florida Statutes 768.81 – Comparative Fault
2
Florida Senate. Apportionment of Fault of Nonparties in Negligence Actions
3
Justia. Fabre v. Marin