Elimination
of Joint & Several Liability
The common law rule of joint and several liability makes each
and every defendant in a lawsuit liable for the entire amount
of the plaintiff's damages regardless of the degree of fault of
any individual defendant.
This rule is problematic in cases where the defendant who is
most at fault is bankrupt or otherwise judgment proof, as well
as in cases where the plaintiff settles with one defendant but
subsequently is awarded damages greater than the settlement amount.
In such instances the settling defendant is still responsible
for the difference between the settlement amount and the award.
Joint and several liability effectively converts lawsuits into
quests for financially viable defendants. As a result those ‘deep-pocket’
defendants settle out of court for fear of being on the hook for
a substantial award, even if they are only minimally at fault
for an injury.
Although the Legislature made several changes to the doctrine
of joint and several liability in 1999, these have not proven
sufficient. Florida businesses are still frequently faced with
lawsuits that cost millions of dollars to defend and often result
in juries finding any way possible to award the plaintiff a large
sum of money simply because a ‘deep pocket’ defendant
exists.
There is only one solution that will fix the mangled mess joint
and several liability has made of Florida’s civil justice
system: Enact legislation establishing that each defendant in
a claim is liable only for its proportionate share of the plaintiff’s
loss. This will create a fair and level playing field in the legal
system for all Florida citizens, whether they are individuals
or businesses.
We must ensure that defendants in a tort action are only responsible
for their share of the damages in question. A comparative system
without any version of joint and several will protect businesses
and individuals from lawsuits that subvert the notion of fairness.
Abolishing joint and several liability is the single most important
lawsuit-reform objective for the upcoming legislative session.
There will likely be other tort-reform measures filed and AIF
will support any of them that provide better protection from lawsuit
abuse.
The one reform proposal that is not negotiable is the repeal
of joint and several liability. It is the cornerstone of the creation
of a more fair and balanced approach to negligence cases. Florida’s
future economic growth and prosperity depends on this much needed
reform. |
