(2) Assessments of percentages of fault of nonparties shall be used only for accurately determining the percentage of fault of named parties.
(3) Where fault is assessed against nonparties, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.
Ark. Code Ann. § 16-55-202.
We begin with petitioners' argument that the nonparty-fault provision invades the powers granted to the judiciary by the Arkansas Constitution in violation of Article 4, § 2 and Amendment 80, § 3 by adding to or varying the Arkansas Rules of Civil Procedure. Specifically, petitioners contend that the nonparty-fault provision effectively establishes a procedure that conflicts with our "rules of pleadings, practice and procedure." We agree, and we hold the provision unconstitutional.
Our state constitution has long recognized the importance of separation of powers. It reads, "[n]o person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted." Ark. Const. art. 4, § 2. Most importantly, Amendment 80, § 3 to the Arkansas Constitution instructs that the Arkansas Supreme Court "shall prescribe the rules of pleading, practice and procedure for all courts."
We have previously struck down acts that conflicted with our procedure for commencing civil actions. In Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007), this court struck down the statutory requirement to submit a reasonable-cause affidavit within thirty days of filing a complaint as unconstitutional. Prior to Summerville, this court struck down as unconstitutional the sixty-day notice statute that governed actions for medical injury.
