In a lawsuit involving a tort (which is a civil wrong such as negligence in an automobile accident) where there is more than one defendant (such as in a multi-vehicle accident), there is a doctrine which imposes joint and several liability in Pennsylvania.
In many jurisdictions juries are instructed to assign degrees of responsibility in tort cases, based on the extent of each defendant’s relative wrong-doing as a cause of the injury. So, where there are three defendants, a jury might divide the responsibility among the defendants as 30%, 55%, and 15%. If the recovery in favor of the plaintiff is $100,000, the defendants would be obligated to pay $30,000, $55,000, and $15,000, respectively.
But suppose the defendant against whom the jury assigned 55% is a person without assets. Does that mean that the plaintiff would be limited to recovering $45,000? Not so in Pennsylvania where the doctrine of joint and several liability is in effect. Under this concept a person with as little as 1% of the liability can be obligated to pay the full amount of the judgment. If the plaintiff recovers the full amount from, say, one of three defendants, that defendant is entitled to prorated (again based on the percentage of liability) reimbursement from the other two defendants. However, the reason a plaintiff will attempt to recover from one defendant, instead of others, is obvious: follow the money. A plaintiff will discover quickly which of the defendants has assets and proceed against the one with “deep-pockets”.
Unfortunately, the “deep-pockets” defendant will likely have the same problem against the other not-so-solvent defendant(s) as the plaintiff had and may never be fully reimbursed.
The principle of joint and several liability has existed in Pennsylvania from virtually the beginning of time. Whether it is fair or unfair, old habits are not easily broken.
It takes little genius to determine who might like to abolish the rule and who would preserve it. If an insurance company insures a defendant against whom a verdict of 1% negligence is rendered, the company (“deep-pockets” and all) is a perfect target for the plaintiff; and after paying, in many cases, the insurance company is unable to obtain reimbursement from the other defendant(s). Aligned with the insurance companies are a number of large corporations (such as automobile companies) which are often joined in tort litigation (in an automobile accident claim, the plaintiff might allege a defect in the car in addition to the driver’s negligence).
On the other hand The Pennsylvania Association for Justice (the trial lawyers’ association) is just as avid in its efforts to preserve the rule in its present state. The reasons are obvious: it can enhance the likelihood of recovery enormously in tort litigation (and attorneys’ fees are often contingent upon recovery; no recovery means no attorneys’ fees!). The trial lawyers argue that the present rule protects those who are badly maimed or killed as the result of negligence; if only one of several defendants has assets, without the present rule a plaintiff may be left with a pyrrhic victory (a large verdict but empty pockets).
Philosophically, the trial lawyers would argue further that a jury’s assignment of degrees of negligence is an arbitrary and contrived exercise which is rarely completely accurate; and, therefore, the plaintiff should have full right of recovery against any party whose negligence contributed to an accident.
The Pennsylvania House of Representatives has passed a bill which would permit joint and several liability by parties who are found to be more than 60% liable. Any party who is found to be 60% or less responsible would have to bear only that percentage of the total recovery which is assigned to him or her by the jury or the court. The fight promises to be furious.
One of the strong elements of Tom Corbett’s campaign for Governor was a repeal of the rule. The Pennsylvania legislature has passed a repeal of the concept twice in the past ten years, only to have it vetoed. This time, however, there is a Governor who supports the bill enthusiastically, and it is likely to become law in some form.
If the change is coming, it could have a significant impact on all of us.
— Ken Butera