Fair share payout may soon be all that's required in Pennsylvania

John O'Brien Dec. 10, 2010, 10:30am


PHILADELPHIA (Legal Newsline) - Companies in Pennsylvania may be looking at a future where they are no longer responsible for paying damages their co-defendants can't afford.

Several factors have the state ready to rid itself of the docrtine of joint and several liability it currently uses. Companies frequently named in asbestos lawsuits could be among those with an interest, considering there are more than 70 bankrupt companies who are asbestos defendants.

The joint and several liability doctrine requires a defendant to pay the share of a verdict that a co-defendant can't afford, no matter what percentage of liability is assessed to both.

It is up to the paying defendant to seek repayment from the non-paying one. If the non-paying one has no assets, the paying defendant gets nothing after footing the bill.

The doctrine is designed to protect plaintiffs, but defendants and tort reform groups are not fans.

"In a state that follows the rule of joint and several liability, if a plaintiff sues three defendants, two of whom are 95 percent responsible for the defendant's injuries, but are also bankrupt, the plaintiff may recover 100 percent of her damages from the solvent defendant that is 5 percent responsible for her injuries," the American Tort Reform Association writes on its website.

"The rule of joint and several liability is neither fair, nor rational, because it fails to equitably distribute liability."

In 2002, the General Assembly passed the Fair Share Act, and then-Gov. Mark Schweiker signed it into law. It did away with the doctrine, though a defendant that was found at least 60 percent liable was still on the hook for the whole amount if its co-defendants couldn't pay.

However, Democratic Rep. William DeWeese mounted a legal challenge to the way the bill was passed. It was coupled with legislation regarding DNA sampling and in 2006, the Pennsylvania Supreme Court ruled the bill should have been focused on a single subject.

With Democratic Gov. Ed Rendell in office, the bill was never reinstated. He vetoed the legislation in 2006.

Rendell is on the way out, now, and current Attorney General Tom Corbett, a Republican, will take his place in January.

Passing the Fair Share Act was one of his stated priorities during his campaign.

And one of the sponsor's of the 2002 bill, Mike Turzai, has been the minority whip of the state House of Representatives for the last two years.

This year, voters gave Republicans a majority in the house. Turzai wrote in an op-ed for Small Business Beat in August about reinstating the Fair Share Act.

During DeWeese's lawsuit, the Philadelphia law firm White and Williams wrote in an amicus brief that 41 states had already abandoned joint and several liability in favor of a modified system or pure several liability.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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