Issues

"Joint and several" lawsuit reform critical for Pennsylvania's economic recovery, prosperity

As a new legislative session unfolds in the Pennsylvania General Assembly, so does Citizens to Protect PA Jobs’ focus on the enactment of critical lawsuit abuse reforms, beginning with improvements to the legal doctrine of joint and several liability.

Under joint and several, a defendant named in a lawsuit can be held 100 percent responsible for monetary damages, even if that defendant is only 1 percent at fault for the damage or injury caused. It’s the reason why lawyers often sue everyone but the kitchen sink when filing a civil lawsuit – they are looking for the “deep pocket,” regardless of the level of responsibility. Many companies are forced with choosing the lesser of two evils: settling a lawsuit for which they may not even have been at fault or very minimally at fault rather than risk paying an exorbitant jury award.

It’s not fair; and the practice has hurt jobs and investment in Pennsylvania. To an investor, an unbalanced legal climate requires reducing exposure to Pennsylvania investments. To an employer, it means conducting as much of its business outside of Pennsylvania as possible. To workers, it means fewer jobs and less attractive job opportunities in Pennsylvania. To Pennsylvania municipalities and non-profits, it means fewer tax dollars and reduced charitable contributions.

Replacing joint and several liability with proportional liability – the proposed Fair Share Act – in which liability is more closely aligned with degree of fault, is a big step toward a fair, more balanced legal system, ensuring that defendants pay their fair share. Under the Fair Share Act, damage awards would be proportional to responsibility for the injury or loss except in cases in which a defendant is: (1) found liable for intentional fraud or tort; (2) held liable for environmental hazards; (3) held civilly liable as a result of drunk driving; or (4) held more than 60 percent liable for the injury or loss. However, a defendant who is found more than 60 percent, but less than 100 percent, liable would still maintain the right to take action against other defendants seeking compensation for contributory damages.

Support for the Fair Share Act crosses party lines, but the road to its enactment has been rocky up to this point. Passing for the first time in 2002, House legislative leaders at that time challenged the law in court on the grounds that it violated the Pennsylvania Constitution’s Single Subject rule because the language was included as part of an unrelated bill. The courts agreed and the reform law was thrown out based on a technicality.

While campaigning for office, former Gov. Ed Rendell promised to sign a joint and several reform measure if elected. The provision made it to the governor’s desk early in his first term, again with bipartisan support. However, despite his pre-term promise, he vetoed the legislation.