Changes to Pennsylvania’s Joint and Several Liability Law

You may have heard about joint and several liability in the context of litigation. It is a legal doctrine pertaining to the proportionate liability of two or more defendants to a plaintiff trying to collect a judgment. The Pennsylvania legislature, under the guise of tort reform, is now poised to enact significant changes to Pennsylvania’s joint and several liability law.

In fact, the legislature enacted sweeping changes to the existing law on this subject in 2002, but on July 26, 2005, the Commonwealth Court held the 2002 law unconstitutional, because it was improperly appended to another law requiring DNA samples from incarcerated felony sex offenders. DeWeese v. Weaver, 880 A.2d 54 (Pa.Cmwlth. 2005). The Pennsylvania Constitution requires that “no bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.” Pa. Constitution, Article III , § 3.

In the wake of the Commonwealth Court’s decision, our lawmakers are wrestling, again, with what to do about this much-debated doctrine. A simple example illustrates the problem. Let’s say a legitimately injured plaintiff sues two defendants for his damages. Let’s also say that it was the separate acts of negligence of these two defendants that combined to cause the plaintiff’s injuries. One defendant has the ability to pay, and the other does not. After a trial, one defendant is found ten percent liable for plaintiff’s injuries, and the other ninety percent. Which one pays?

For years, Pennsylvania law has favored the plaintiff, because both defendants, no matter their degree of liability, are both jointly and severally liable for one hundred percent of the plaintiff’s damages. Therefore, the plaintiff could collect against both defendants, or could collect the entire judgment against only one, and it then would be up to the defendants to sort out whether the non-paying defendant would have to contribute a portion of the damages back to the defendant who paid for all of plaintiff’s damages. In other words, the defendant which was only ten percent liable could be forced to pay one hundred percent of plaintiff’s damages, and then would have to seek reimbursement from the defendant who was ninety percent liable. If the defendant who was ninety percent responsible for the loss did not have the financial wherewithal to reimburse the other defendant, the ultimate loss would fall upon the defendant who was ten percent liable, not upon the plaintiff. This view of the law seeks to make the plaintiff whole first, and puts the burden of sorting out the apportionment of the defendants’ contribution to plaintiff’s damages on the defendants.

Now, due to pressure by tort-reform proponents and insurance companies, the legislature is seeking to change the law so that the defendants’ liability would be several only, not joint and several. This means that under some proposals currently being debated, a defendant could not have to pay more to the plaintiff than the percentage of liability apportioned to each defendant. In our example, the ten-percent-liable defendant would only have to pay ten percent of plaintiff’s damages to plaintiff, and if the ninety-percent-liable defendant could not pay, due to lack of adequate capitalization, adequate insurance, or bankruptcy, the plaintiff could not collect the rest of his damages from the defendant which was primary responsible for his injuries.

Although there are some exceptions, under proposed House Bill No. 138 of 2005, “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.”

Under both H.B. 138 and Senate Bill 435 of 2005, a defendant can be held liable to pay for one hundred percent of plaintiff’s damages “where a defendant has been held liable for not less than 60% of the total liability apportioned to all parties.” In other words, the party must be held to have been at least sixty percent liable in order for the plaintiff to recover the whole judgment against that party.

In contrast, Senate Bill 563 of 2005 seeks to retain the spirit of existing law. It provides that in a case in which a defendant has been found jointly liable but is shown to be unable to fully satisfy its percentage share of liability, the court, upon motion of any party, shall divide that defendant’s deficiency between the plaintiff and any other defendant found jointly liable based upon the parties’ respective shares of liability as found by the fact-finder. This approach gives maximum flexibility to the court to determine who is actually able to pay for plaintiff’s damages, while retaining the concept of several liability, recognizing that there is an element of unfairness in asking a defendant to contribute more than its fair share of liability in order to satisfy plaintiff’s award.

All of these proposed laws contain exceptions for intentional torts, intentional misrepresentation, a release or threatened release of a hazardous substance, and liability of tavern owners (i.e. “dram shop liability”).

These proposals represent radically different views about how our legal system should operate, and how plaintiffs can recover for their injuries. As a society, do we want to allow plaintiffs to recover all of their damages first from one defendant, and let that defendant seek contribution from the jointly liable defendants, or do we tell the plaintiff that he cannot recover the full amount of his damages because one or more of the co-defendants are unable to pay? Contact your legislator and let him or her know your thoughts. Become engaged in the democratic process.

If you have questions regarding joint or several liability in a personal injury case, make an appointment today to consult with an attorney from Wolf, Baldwin & Associates, P.C.. We look forward to hearing from you.