Peacock Tales • Fall 2011

New Law Set to Change Landscape of Pennsylvania Litigation

For nearly a century, “joint and several liability” was used in Pennsylvania civil cases involving multiple defendants. If a jury found more than one defendant liable for a plaintiff’s injuries,” joint and several liability” made each defendant liable for all monetary damages that were awarded, regardless of how the jury apportioned liability. A defendant with 1 percent liability was on the hook to the same extent as one with 99 percent liability, and the plaintiff could seek to collect all damages from the 1 percent liable defendant.

On June 28, 2011, Governor Tom Corbett signed into law a Senate Bill limiting the application of joint and several liability to a mere handful of legal claims and scenarios. Consequently, the vast majority of cases will now involve defendants having to only pay damages in proportion to their liability. In other words, the defendant with 1 percent liability now only has to pay 1 percent of the plaintiff’s damages. The new law applies to claims accruing on or after June 28, 2011, and will have a significant impact on the future of Pennsylvania litigation.

The joint and several approach was regarded as “plaintiff friendly” because a defendant with minimal liability, compared to other defendants in the case could be targeted to pay an entire damages award. It often forced deep-pocket defendants, those with enough solvency to pay large awards, to seek early settlements with plaintiffs. Otherwise, if they were found even marginally liable at trial, they could be forced to pay all damages. Their only recourse would be to seek contribution from the other, more-liable defendants, which often lacked the ability to pay. The new law is generally seen as “defendant friendly.”

A handful of scenarios will continue to employ “joint and several liability,” including cases with claims for intentional torts and intentional misrepresentations. Additionally, if a defendant is found more than 60 percent liable, “joint and several liability” will still apply. Therefore, defendants going to trial risk the application of “joint and several liability” if the jury finds them excessively responsible for a plaintiff’s injuries.

This is not Pennsylvania’s first attempt to distance itself from “joint and several liability.” Asimilar version of the current law called the Fair Share Act was signed into effect in 2002. However, a lawsuit was quickly filed arguing that the procedure used to pass the Fair Share Act was illegal under Pennsylvania’s Constitution. The matter was eventually taken to the Pennsylvania Supreme Court, which determined in 2005 that procedural problems with the Act’s passage made it unconstitutional. The Court’s decision allowed “joint and several liability” to survive, if only temporarily.

The effects and consequences of the new law remain to be seen, but it clearly creates a number of practical and legal issues that litigants must now consider when entering litigation. If you find yourself in litigation, either as a plaintiff or defendant, you should discuss these considerations with your attorney so that an appropriate strategy can be formulated with a full understanding of how the new law may apply.

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