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Tuesday, February 25, 2020

Tort laws out of whack, costing the Evergreen State, says AG McKenna

By Chris Rizo | Mar 20, 2008


OLYMPIA -- Washington Attorney General Rob McKenna said Thursday that tort laws in the Evergreen State are allowing claimants to unfairly siphon scarce government resources.

In a lengthy interview with LegalNewsLine, the Republican attorney general said his state annually pays out ten-times as much in tort settlements than in Idaho, and six-times more than Oregon does.

"There are basically no boundaries or limits on claims that are brought against state taxpayers by a tort claimant," said McKenna, adding that the state has paid out about $500 million in tort claims over the last 25 years.

"That is money that is not available to improve services such as foster care and transportation," he said.

Additional financial strain, he said, is placed on the state by Washington's doctrine of joint and several liability, where even if a co-defendant is found to be as little as 1 percent at fault, a co-defendant can nonetheless be held 100 percent liable for an award if the other co-defendant is found to be an empty pocket.

To make his point, McKenna said if a drunken driver speeding down a state highway causes a wreck and is sued, and if a trial lawyer can convince a jury that a defect in the roadway was even a slight factor in the crash, the state can be held wholly liable for paying the award judgment if the drunken driver has no assets and no insurance.

"This is an example of how far out of line our laws have become," McKenna said. "We're far away from where the Legislature intended when they repealed sovereign immunity" in the 1960s.

Although McKenna said he does not believe that the state should return sovereign immunity, where claimants must approach the Legislature when they believe the state is at fault, he said state lawmakers should determine the limits of damage awards.

"The state should be liable-and should pay-if the state is (either) negligent or reckless or causes a harm," McKenna said.

"But the courts have moved so far away from what the Legislature intended back in the early 1960s that the law removing sovereign immunity is no longer recognizable, and at the same time the Legislature has failed to act at a policy level where the limits ought to be."

All the while, he said, the "limits keep expanding," and the state's trial lawyers are seeking even broader civil liability laws, McKenna said.

The Washington State Trial Lawyers Association's major initiative this year was outlined in House Bill 1873, which would have expanded the state's wrongful death statutes by allowing parents legal standing to sue if an adult, unmarried child were killed as a result of negligence, said spokeswoman Adrianne Williams.

"Washington is one of two or three states that has a loophole on the books that says once a child turns 18 and they are unmarried and have no children of their own and they are killed then nobody can be held accountable, and everyone is off the hook for that death," she said.

Responding to the attorney general's claim that the state provides "limitless" damage awards, Williams said that Washington is one of the few states that does not allow punitive damage awards.

"If state government or a corporation is taken to court and found by a jury of their peers to have committed a negligence that they are responsible for, that is the purpose of the civil justice system," she said. "Government must be held accountable."

McKenna said the most recent piece of legislation he proposed to overhaul a tort law was in 2006. The bill, which would have directed the Legislature to adopt damage limits, received a hearing in the Senate but failed to gain traction amid opposition from Gov. Christine Gregoire, a Democrat.

"I will not introduce more legislation until I have some indication from the governor and key legislators that it will be given serious consideration," he told LNL. "There are a lot of issues to work on, so there's no point in introducing bills that aren't going to be taken seriously."

During the state legislative session that ended March 13, the plaintiffs' bar proposed about 30 bills that would have expanded liability laws, said Dana Childers, executive director of the Washington Liability Reform Coalition, a consortium that includes business and insurance groups, among others.

She said despite the Legislature tending "to be more trial lawyer-friendly than reform-friendly," the trial lawyers were unsuccessful this year in expanding liability laws.

"Currently, in the state of Washington, those of us who are liability reform supporters are much more in a defense position than an offense position," she said. "Trial lawyers are very aggressive at bringing legislative agendas to Olympia."

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