I. Present Responsibility of Defendants

Under current Pennsylvania law, if you are a defendant in a lawsuit with at least one other defendant and are joint tortfeasors*, you may be responsible for paying 100% of any verdict awarded to the plaintiff, even though a jury or judge determines that you are only 1% liable for the plaintiff’s injuries. This is what is known in the law as joint and several liability, enacted in Pennsylvania under 42 Pa.C.S.A. §7102(b).

Because of joint and several liability, any defendant is responsible for paying another joint tortfeasor’s shares if, for instance, it is easier for the plaintiff to collect against that particular defendant. That defendant’s only recourse is then to seek contribution from the defendants whose shares it ended up paying.

II. Proposed Change in the Law

In what could end up being the most dramatic change for defense litigation in state history, the Pennsylvania House Judiciary Committee has on its 2011 agenda a bill that, if passed, would become the Pennsylvania “Fair Share Act.” This statute would amend comparative negligence by eliminating the concept of joint and several liability, as we know it.

Under the Fair Share Act, a plaintiff would only be allowed to collect against a particular defendant that portion of the judgment for which that defendant was found to be liable. If, for instance, a jury determines that you are 30% liable for plaintiff’s injuries, that a co-defendant (a defunct corporation, for instance) is 40% liable, and another co-defendant (a party without insurance, for example) is 30% liable, the plaintiff can currently collect 100% of the judgment from you and leave you to go after the other two defendants for their share. The Fair Share Act would change this scenario by making you responsible for only your 30% share of the judgment.

III. Language of the Bill

This bill has not yet been formally introduced in the new House session; however, there have been previous attempts at this amendment that did not come to fruition for various political and technical reasons**. It is noteworthy that in a 2009 version of the proposed Act (a copy of which is available below), it was provided that Joint and Severable Liability would continue to apply as to any defendant found 60% or more responsible. We regard it as likely that the new version will contain a similar provision.

IV. Conclusion

Given the current make-up of the Pennsylvania House and Senate, and statements made by newly elected Governor Tom Corbett, we believe a properly drafted bill (that is, without a technical defect like the one contained in the version adopted—and ruled unconstitutional—in 2002) stands a very good chance of being passed and signed into law. If that is so, the landscape of defense litigation, and the practical implications for our clients, will be dramatically altered.

* Defined as “two or more persons jointly or severally liable in tort for the same injury to persons or property.” 42 Pa. C.S.A.§8322.** Similar bills have been introduced three times in the past 10 years. The first was signed into law on June 19, 2002 by Governor Mark Schweiker as the Fair Share Act. That law was challenged immediately and eventually found unconstitutional because of procedural, and not substantive, issues. Legislative matters in Pennsylvania can only deal with singular issues with not unrelated amendments. The law’s two provisions (the other dealing with DNA sampling) were not properly related to a single subject. (DeWeese v. Weaver, 880 A.2d 54, 60 (Pa. Commw. 2005), affirmed at 2006 WL 2786943). A similar bill was again introduced and was passed in the House and Senate, but vetoed by Governor Ed Rendell on March 24, 2006.

What It Means to You

You can find below the contact information for Governor Corbett, Representative Turzai, and the new majority chair of the House of Representatives’ Judiciary Committee, Representative Ron Marsico.

If you have questions regarding how this change in the law will affect you or how the current comparative negligence statute might affect you now, please do not hesitate to contact us.

 

Governor Tom Corbett’s contact information is as follows:

225 Main Capitol Building
Harrisburg, Pennsylvania 17120
Phone: (717) 787-2500
Fax: (717) 772-8284
http://www.governor.state.pa.us/portal/server.pt/community/contact/2998/…

Pennsylvania Representative Mike Turzai was the sponsor of House Bill 525 and is the new Majority Leader. His contact information is as follows:

125 Hillvue Lane, First Floor , Pittsburgh, PA, 15237
Town of McCandless
Telephone: (412) 369-2230
Fax: (412) 369-2236
mturzai@pahousegop.com

Pennsylvania Representative Ron Marsico is the new majority chair of the House of Representatives’ Judiciary Committee, which will take up the new bill. His contact information is as follows:

4401 Linglestown Road, Suite B
Harrisburg, PA 17112
Phone: 717-652-3721
Fax: 717-652-6276
http://www.ronmarsico.com/Contact.aspx