COLUMBIA, S.C. (Legal Newsline) - South Carolina lawmakers are on notice to pass a bill that Gov. Henry McMaster says will help businesses struggling with insurance premiums at the expense of the state's powerful trial lawyer machine.
McMaster held a press conference Wednesday to tout S. 244, legislation designed to help companies forced to pay major verdicts despite being found minimally at fault for personal injuries.
The bill, which would reform the state's use of joint-and-several liability, targets the practice of holding all defendants liable for an entire verdict. If one defendant can't pay and the plaintiff is found to be below a certain percentage of fault, it's up to the others to satisfy the full amount - causing a defendant to pay more than its apportioned share.
It has sparked blowback from personal injury lawyers hoping to make sure their clients' awards, and the attorneys fees, are paid in full. Proponents say it is needed to help in-state companies struggling with liability insurance premiums keep up with rivals in other states that have already addressed the issue.
And juries don't currently apportion fault to defendants that settled before trial.
"The application of our current legal framework and rules are increasingly making South Carolina less competitive," McMaster said. "And we are in fierce competition with other states of our country, particularly those in the Southeast, right now.
"The rules on joint-and-several liability have introduced an element of uncertainty in our state. And uncertainty, ladies and gentlemen, is the enemy of prosperity."
Personal injury lawyers have long held substantial power in the South Carolina General Assembly. For instance, seven of the 23 members of the Senate Judiciary Committee are personal injury lawyers, including chairman Luke Rankin.
Last year, there were 47 lawyers in the 170-member legislature. Even Republicans fit the mold of the personal injury lawyer/legislator.
But, as FITSNews reported, several Democrats embraced by the trial bar lost their recent elections and more conservative Republicans replaced moderates elsewhere.
Perhaps now outvoted, plaintiffs lawyers have reportedly funded a campaign through a group called Reform Insurance Now SC that claims the insurance industry is behind S. 244 and urges viewers to contact senators to vote against it.
Some plaintiffs firms have gone as far to create pages on their websites bashing the bill. Meanwhile, recent data showing households in South Carolina pay about $3,600 each year as a "tort tax" caused by excessive litigation that also kills jobs.
FITSNews also reported a coming television ad responding to the backlash from personal injury lawyers, complete with footage of crying children.
Much of the coverage of the bill highlights its possible effects on the bar-and-restaurant industry. For lawsuits in which alcohol is a factor, plaintiffs can be almost entirely at fault yet the defendants must still pay the full amount of any verdict.
Sen. Shane Massey introduced the bill on Jan. 16. Five weeks later, it received a favorable report from the Judiciary Committee and now awaits further action.
"I ask the members of the General Assembly to find a commonsense solution," McMaster said, "one that I can sign into law the minute it arrives at my desk."
"Tort reform is not about politics," he added later. "It is indeed about fairness. It is about insuring that our legal system works as intended - not as a weapon but as a tool for justice."
The state's trial lawyer group, the South Carolina Association for Justice, is a top donor for each of them. It has given almost $1.7 million to candidates in the last 17 years. The Speaker of the House is Murrell Smith, Jr., a personal injury lawyer whose biggest donor is the SCAJ.
The SCAJ was also the subject of a bizarre situation in which Sen. Tom Fernandez insinuated it agreed to pay him to vote against the bill then, following an immediate recess, dialed back his claims. The SCAJ denied it in a statement to the Post and Courier.
Change comes slowly to issues like this in South Carolina, Rick Brundrett told Legal Newsline last year. He's the news editor of The Nerve, a publication of the South Carolina Policy Council that covers legislation and the judicial branch.
“The lawyer legislators in this state are way overrepresented compared to other occupations, and they wield a lot of control," he said. “Every year some lawmaker introduces a judicial reform measure, but the problem is they won’t give up their control. So it dies.”
That happened to this same measure last year, then S. 533. Senate President Thomas Alexander and others are hoping for a different outcome this year.
"We can not allow the loudest voices to drown out the voices of those who simply want what's best for our South Carolina," he said Wednesday.