“Tort Reform” Marches Towards Injustice In Tallahassee

Hundreds of years of common law development arrived at the conclusion that joint and several liability of wrongdoers was the fairest approach to the compensation of victims of wrongful acts. It generally allows the injured victim to collect all damages sustained and awarded by a jury from any defendant or defendants with the ability to pay (for example, from a liability insurance policy). The “solvent” or insured defendant or defendants, in turn, can do whatever they wish to apportion payments among all wrongdoers. There have been some adjustments in joint and several liability theory and practice, but the basic concept continues to assure justice for the wrongfully injured.

Under the banner of needed Tort Reform some of our State Legislators are pushing to abolish joint and several liability entirely. The potential defendants of our state argue that basic fairness and justice requires this little tweak to our system of justice. Allow me to outline what will confront an injured person who dares to file a lawsuit against anyone in Florida to seek compensation for injuries and economic losses if joint and several liability is abolished entirely. Every defendant will nominate as many other persons or entities who may have contributed to any degree to the total misconduct that produced the injury or death. Those nominated defendants or wrongdoers without insurance coverage or assets may be assigned 50% or more of the responsibility for the accident. Whatever percentage is assigned to the nominees would not likely be recovered in damages by the injured victim. In the end, a victim would frequently end up with a relatively small percentage of fair compensation even though a jury had decided that “but for” the misconduct of the solvent defendant no injury would have occurred. This result would not be justice.

Excepts from Sun-Sentinel.com article:

TALLAHASSEE · A deeply divided state House committee Wednesday approved a measure that would dramatically change the way civil lawsuits work in Florida.

The House Judiciary Committee voted 7-5 to eliminate what’s known as “joint and severable liability,” the doctrine that says a deep-pocketed company can be forced to pay most or all of the damages in a civil lawsuit, even if it is only partially to blame for the accident.

The debate over whether to eliminate the long-established legal principle is a bitter showdown between two of Florida’s most well-financed interest groups — businesses and trial lawyers.

Business groups call joint and severable liability unfair, and they say it encourages frivolous lawsuits. Lawyers say it ensures that victims of negligence won’t wind up having to pay out of their own pockets when one defendant cannot afford its share of costs such as medical bills.