Page:Johnson v. Rockwell Automation, Inc.pdf/8

 that defines the specific rights or duties themselves." Id., 253 S.W.3d at 420 (citing Black's Law Dictionary 1221 (7th ed. 1999)).

Clearly the law modifying joint and several liability, Ark. Code Ann. § 16-55-201, defines the right of a party, a defendant, and is substantive. However, after reviewing section 16-55-202, it is clear to this court that the legislature has, without regard to this court's "rules of pleading, practice and procedure," established its own procedure by which the fault of a nonparty shall be litigated. While respondents argued in oral argument that a defendant has always been able to "point to the empty chair," the "phantom defendant" established by section 16-55-202 is different. The nonparty-fault provision bypasses our "rules of pleading, practice and procedure" by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty's fault in an effort to reduce a plaintiff's recovery.

Additionally, the plain language of the statute even instructs that "a pleading" be filed to meet the notice requirement. See Ark. Code Ann. § 16-55-202(b)(2). This is in direct conflict with our Ark. R. Civ. P. 7 which specifically sets forth the pleadings and instructs that "[n]o other pleadings shall be allowed." Because subsection (b) instructs when the negligence or fault of a nonparty shall be considered, subsection (a) falls as well, as it is dependent on (b). Because the nonparty provision is procedural, it offends the principle of separation of powers and the powers specifically prescribed to this court by Amendment 80. Accordingly, we hold that Ark. Code Ann. § 16-55-202 violates separation of powers under Article 4, § 2, as well as Amendment 80, § 3 of the Arkansas Constitution. Because we conclude the Rh