January 13, 2006

Tort
Reform
Update

Tort reform legislation is again re-surfacing in a legislative challenge to the antiquated and draconian rule of joint and several liability. The challenge to joint and several liability, a common law precept shifting financial responsibility among multiple defendants, is once again under review in a bill pending before the Pennsylvania Senate. The bill is Senate Bill No. 435.

The legislation, introduced by State Senator Greenley, has already been passed by the State Senate, and is now under review by the State House of Representatives. It is believed that a compromise bill will eventually be passed, abrogating the common law principle of joint and several liability with a tort reform measure that will result in a more fair and reasonable method of apportioning financial responsibility in civil lawsuits involving multiple defendants.

The Bill would result in a civil defendant’s contribution in actions involving joint defendants, including strict liability actions, to be apportioned according to the same percentage of liability for damages assessed against the defendant. It would result in trial courts being instructed to enter judgments against multiple defendants based on several and joint liability, resulting in separate judgments being entered in favor of the plaintiff and against each separate defendant for the apportioned amount of that defendant’s liability.

Under Senate Bill No. 435, joint and several liability would continue to survive.

Joint and several liability, under Senate Bill No. 435, would continue to survive in the context of cases involving intentional misrepresentations, intentional torts, and where a defendant has been held liable for not less than 60% of the total liability apportioned against all parties. In those types of cases, the trial court would be instructed to enter joint and several judgments on damages.

The joint and several defendant would be empowered to seek contribution against any defendant paying less than its proportionate share.

In any action in which a defendant has been held jointly and severally liable, the joint and several defendant, which has paid more than its proportionate share of the total liability, would be empowered to seek contribution against any defendant paying less than its proportionate share of the damages awarded.

Anticipating eventual passage and adoption of tort reform legislation that will abrogate joint and several liability, replacing it with a seemingly more rationale concept of proportionate liability, we will continue to track this legislation’s navigation through the Pennsylvania Legislature for our clients and contacts.

Questions regarding joint and several liability, proportionate liability, and/or any precepts affecting liability and damages in negligence matters should be directed to our casualty litigation attorneys at www.vdc-law.com.

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