Volume 13, Number 3 · July 2003

Understanding Joint and Several Liability

By Mary Drake Korsmeyer

In an automobile accident case, the jury found one defendant eighty percent liable, the other twenty percent liable. Unfortunately, the defendant who was eighty percent liable was bankrupt and had no insurance What recourse does the plaintiff have?

The old rule in Pennsylvania dealing with "joint and several liability" provided that any one defendant, even if found to be only one percent responsible for injuries to another, could be required to pay the entire amount of damages awarded. In fact, it was common to include defendants with minimal contact or responsibility solely to assure collectability of a verdict. The costs of defense and the risk of payment of a disproportionate amount of the judgment often forced unwilling defendants to settle cases.

As unfair as the system appeared to be, it had the redeeming quality of assuring that the injured party could make full collection from a defendant for the full amount of the award.

The doctrine of joint and several liability has been fiercely debated in the public and in the legislature for years. On June 19, 2002, Governor Schweiker signed a new "Fair Share Act" providing changes in the system in limited circumstances. The Act became effective August 19, 2002 for any cause of action accruing thereafter.

Each defendant in a negligence action will now be responsible for payment of the percentage of liability apportioned to it by the jury. In our original example, the defendant found twenty percent liable would only have to pay twenty percent of the verdict.

But the statute also provides some protection to the plaintiff. Any defendant who is found to be sixty percent or more responsible by the jury can be held accountable to the plaintiff for the amount of the entire verdict.

In addition, the old rule of joint and several liability continues in force for injury resulting from intentional acts, violations of the liquor code, and for cases involving hazardous substances. Any case brought under a theory of strict liability (such as product failure), will find liable defendants sharing equally in payment of the verdict.

Experienced trial lawyers have suggested that this statute will change the way plaintiffs evaluate their cases and affect the number and type of defendants who are joined. One could expect that plaintiffs will focus their proof of liability on the defendant with the deepest pocket in order to protect the collectability of the verdict. Conversely, defendants with marginal liability or peripheral connection may not be sued at all or may be dismissed at an early stage.

The new statute remodeling "joint and several liability" is a part of the "tort reform effort" in Pennsylvania. Stay tuned! The legislature is not finished yet, and both lawyers and litigants will have to abide further action in Harrisburg.

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