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Michael Schafle
Michael Schafle
Attorney • (215) 790-4577

Eliminating Joint and Several Liability in PA Will Curtail Victims’ Rights

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What is Joint and Several Liability?

Joint and several liability is a common law doctrine that permits a victim to recover 100% of his her damages from one defendant in a situation where his or her injuries were caused by several defendants. Under joint and several liability, in a instance where a victim is injured by the negligence of two separate and distinct culpable entities, the plaintiff may seek all of his or her damages from one of the culpable parties. That culpable party may then seek contribution from the other culpable party for their share of damages. Joint and several liability is crucial to protect victims from being undercompensated in situations where a culpable defendant cannot afford to pay its share of proportionate liability.

Current State of Law in Pennsylvania

Currently, courts in the Commonwealth of Pennsylvania follow the doctrine of joint and several liability. However, some of Pennsylvania’s lawmakers are pushing to replace common law joint and several liability with a pro-defendant substitute known as the Fair Share Act. The Fair Share Act provides that a defendant would be required to pay damages equal to its share of responsibility as determined by a jury if found less than 60% liable for a plaintiff’s injuries. The passing of the Fair Share Act would display a clear policy shift on the part of the state government away from protecting victims’ rights towards protecting the economic interests of corporate and individual culpable defendants.

Who Benefits from the Fair Share Act?

Quite simply, not the Pennsylvania taxpayers and innocent victims of corporate and individual negligent conduct. For example, under the Fair Share Act, if a victim was rendered paralyzed in an automobile accident where one solvent defendant was determined to be 10% responsible and an insolvent defendant was determined to be 90% responsible, the victim would only be able to recover 10% of her damages. The question that follows is: who will make up the difference in costs for the injured party’s medical care if she cannot recover 100% of her damages? Frequently, the answer is the taxpayer through government programs such as social security and Medicare/Medicaid. In situations where the injured party has private medical insurance, the burden of paying these bills then shifts to the private health insurer and could result in increases in premiums. The proposed legislation would result in cost shifting from corporations to taxpayers and individuals and would render countless victims incapable of being fully compensated for damages caused through no fault of their own. The beneficiaries of the proposed Fair Share Act are clearly not the victims.

Conclusion

The passage of the Fair Share Act will result in undercompensated victims and families, wealthier corporations and insurance companies, and diminished access to the court system for lower and middle class Pennsylvanians. Any savings that the Act creates for insurance companies and corporations will not pass on to consumers through decreases in prices or premiums. Instead, the savings will only make those companies wealthier at the cost of victims’ rights.