The Fair Share Act Is Back – But Is It Really Fair to Injury Victims?

Proposed Change to Joint and Several Liability Law in Pennsylvania

Many Pennsylvanians thought they were done with the Fair Share Act, but the state legislature is doing its best to bring it back.

State Representative Curt Schroder (R-Chester) and State Senator Jake Corman (R-Centre) each introduced a new version of the Fair Share Act into their respective chambers of the state legislature during the current session. The proposed change in the law would abolish Pennsylvania's joint and several liability rules in all tort cases unless one defendant was found at least 60 percent at fault for the plaintiff's damages. In all other cases, defendants would be required to pay their "fair share" of the damages to the plaintiff.

The Current Status of Joint and Several Liability in PA

Under Pennsylvania's current joint and several liability laws, defendants are currently required to pay their fair share of the damages in personal injury cases, but plaintiffs have the right to go after just one defendant and collect all damages from that defendant, regardless of how at fault the defendant was. Essentially, this means that the defendant from whom the plaintiff elects to collect could be responsible for as little as 1 percent of the total damages, yet be required to pay the entire amount.

However, this does not mean the defendant who pays all of the damages is left empty-handed. Pennsylvania law also includes a right to contribution. This allows the defendant who paid the full amount to sue the other defendants and recover the portion of the damages for which those defendants were responsible.

The law was written in this way to protect personal injury victims. It ensures that those who have been harmed by another's negligence receive full compensation for all injuries with as little delay as possible, while still giving defendants the means to recoup the damages they paid above their own share.

Critics of the current joint and several liability laws have complained that it encourages plaintiffs to shop around for defendants with deep pockets, usually an insurance company or other corporation. These defendants are then required to foot the entire bill for the plaintiff's damages even if they are found as little as 1 percent at fault for causing the plaintiff's losses. Supporters of the current law argue that is more appropriate for the wrongdoers to seek each other out for payment or contribution, rather than requiring the victim to pursue each person for their share of damages suffered.

Proponents Argue the New Joint and Several Liability Law Will Boost Pennsylvania Economy

Not surprisingly, the proposed bill is predominately backed by Republican lawmakers, the business community and insurance companies. They argue that tort reform is necessary to attract new businesses, create jobs and help jumpstart Pennsylvania's lagging economy.

Proponents of the Fair Share Act also argue that it will prevent what they perceive to be an abuse of the legal system by plaintiffs. It will bring fairness to tort cases by requiring each defendant to pay their share of the damages at the time judgment is entered, rather than requiring additional litigation in a subsequent contribution case.

Lastly, those wanting to change the current Pennsylvania joint and several liability law also argue that it will help lower insurance premiums for everyone since insurers will not be required to pay out huge damage awards to injured people.

Opponents Argue That the Fair Share Act Is Not About Fairness for the Injured

Those who are against revisiting the Fair Share Act in Pennsylvania argue that the law will hurt those who already have suffered enough - injury victims. They point out that the only parties benefitting from the proposed law are big insurance companies, not the actual individuals who have been harmed by another's careless acts.

Opponents of the proposed legislation also argue that while it may result in a decrease in auto insurance premiums, it ultimately will lead to an increase in health insurance premiums. Health insurers will have to seek another way to recoup their losses from paying medical expenses after an accident that otherwise would have been paid through personal injury awards. Raising individual premiums will be one of the most convenient ways for insurance companies to do that.

Those opposed to the bill point out that state taxpayers will be harmed if the Fair Share Act becomes law because it will put more pressure on the state's Medicaid and other benefits programs - programs that pay for treatment for personal injury victims who have no other way to pay for their medical care. Under the current system, the state Medicaid program is entitled to reimbursement for expenses out of any personal injury award or settlement.

Lastly, critics of the proposed Fair Share Act say that related litigation will increase, rather than decrease. Plaintiffs will be forced to name every potentially liable party, including individual insurance agents, to protect their chances of receiving full and fair compensation for their injuries. Defendants will enter into more litigation between themselves as they try to sort out who is responsible for what portion of fault.

Conclusion

This is not the first time that there has been an attempt to bring tort reform to Pennsylvania with the passage of a Fair Share Act. In 2002, a law identical to the one now proposed was signed into law, but later ruled unconstitutional by the state supreme court in 2006.

Whether this attempt to pass the Fair Share Act will be successful this time has yet to be seen. Regardless, if the bill becomes law, it will likely be at the expense of personal injury victims throughout the state.