Tort Reform Measures Advance in Florida, Pennsylvania

Hard fought victories have been achieved as tort reform legislation in Florida and Pennsylvania took significant steps forward, according to the Property Casualty Insurers Association of America.

The Florida House sent to the Senate legislation (HB 145) that removes exceptions in Florida law that permit “joint and several liability” rather than proportional liability based on percentage of fault. The Pennsylvania General Assembly sent to Gov. Ed Rendell legislation (SB 435) that would restore the Fair Share Act by eliminating joint and several liability in cases where a defendant is found to be less than 60 percent responsible.

Joint and several liability provisions allow a disproportionate level of liability to be assessed to a party regardless of level of fault in a matter. Under this legal concept, a defendant can be held liable for full damages even if they are only marginally responsible for an injury.

“The bills in Florida and Pennsylvania are important because they can help to bring greater balance to the tort liability system by holding those most at fault responsible for a larger share of the damages,” said David Golden, director of commercial lines for PCI. “Reforms of joint and several liability laws help to stop litigants from targeting corporations, insurers and others that are thought to have ‘deep pockets.'”

In Florida joint and several liability reform was a top priority for Gov. Jeb Bush and House Speaker Allan Bense. The governor has been an ardent support of tort reform, and PCI and the business community have gone to the Legislature each year to push for comprehensive tort reforms.

In July 2005, the Pennsylvania Commonwealth Court held that the procedure used to enact the Fair Share Act that abolished joint and several liability violated an Article of the Pennsylvania Constitution prohibiting bills from containing more than one subject. Specifically, the bill title dealt with DNA testing and was subsequently amended to also address apportionment of liability. The court reasoned that requiring DNA samples from specified incarcerated felons did not have a proper relation to joint and several liability for acts of negligence.

PCI and business groups set as a goal to reenact these reforms which were first put in place in 2002. Gov. Rendell has expressed some support for the reforms and PCI is urging him to sign the legislation.

Other states considering joint and several liability reforms in 2006 include Washington and Illinois. In Washington, while health care liability reforms advanced to the governor, they did not address the most controversial reforms such as caps on non-economic damages, and changes to joint and several liability provisions. Legislation in Illinois has not advanced out of committee.