Joint and Several Liability Meets its End

The doctrine of joint and several liability stretches back decades in Florida law and goes specifically to the issue of negligence in lawsuits that involves multiple defendants including individuals, businesses, and other entities. The definition of negligence is as complicated as its application since it is based on a variety of acts that resulted in the harm of an individual. Several definitions of negligence are spelled out in a Senate Judiciary Committee report:

Negligence forming the basis of a civil action may be defined as the failure to do what a reasonable and prudent person would have done under the circumstances, or the doing of what a reasonable and prudent person would not have done under the circumstances.

Negligence is the failure to observe, for the protection of a worker's interest, such care and vigilance as the circumstances justly demand and the want of which caused the injury.

The omission by a responsible person to use that degree of care, diligence, and skill that was his or her legal duty to use to protect another person from injury.

Even more important is a Florida Supreme Court analysis of joint and several liability, which defines the role of each defendant in a negligence case. "Originally, joint and several liability applied when the defendants acted in concert, the act of one being considered the act of all, and each was therefore liable for the entire loss sustained by the plaintiff." Further, the court pointed out that the doctrine was expanded so that the doctrine did not apply when the defendants did not act in concert. The court even took a further step forward by eliminating the requirements that the parties act in concert and allowing joint and several liability to apply when separate independent acts of negligence combined to produce a single injury.

In effect, the Court's ruling stressed that the injured party should be made whole regardless of who pays. This underlying thesis, when combined with case law, set out the common law doctrine whereby joint and several liability means each defendant could be sued individually or as a group. As a result, the decision opened the door for one party to be on the hook for all damages owed to the plaintiff, even though the party may only be marginally responsible for the accident. As a result, critics of the doctrine said it resulted in the defendant with the deepest pockets having to pay.

Take for example the case of Disney v. Wood (515 So. 2d 198 (Fl 1987). In 1971, at a grand prix attraction at Disney, Aloysia was injured when her fianc? rammed her from behind in another vehicle. Aloysia filed a lawsuit against Disney and the company responded by seeking a monetary contribution from the fianc? Daniel Wood for his role in the accident. At trial, the jury found Aloysia 14 percent at fault, Daniel Wood at 85 percent of fault, and Disney at one percent of fault. The jury assessed Wood's damages at $75,000 but under the doctrine of joint and several liability, the court ruled that Disney was responsible for 86 percent of the damages.

Tort Revisited

In 1999, lawmakers took a major step forward when they enacted a bill that significantly altered the role of joint and several liability in lawsuits. First of all, they eliminated the doctrine of joint and several liability for non-economic damages such as pain and suffering, mental anguish, loss of capacity of enjoyment of life, and other subjective factors. And they eliminated the concept of joint and several liability in all cases less than $25,000. Also instituted were a series of caps on joint and several liability when it comes to economic damages such as lost income, medical expenses, and the loss of personal property.

By limiting the exposure of defendants, lawmakers and the Florida Supreme Court placed a greater emphasis on the role and responsibility of the plaintiff in an accident. As a result, the Court introduced the concept of comparative negligence as a means of calculating damages. The changes were as follows:

o Lowered a plaintiff's monetary recovery in proportion to the plaintiff's responsibility for his own injury.

o Eliminated joint and several liability for non-economic damages.

o Place a tiered system of caps on the amount of economic damages, which a defendant may be joint and several liable.

o Eliminated the application of joint and several liability to a defendant whose percentage of fault is less than the fault of a particular plaintiff.

o Authorized the allocation of fault to a non-party.

In 1999, lawmakers enacted a series of tort reforms designed to increase the relevance of the defendant's role in a lawsuit. Under the law, a defendant is liable for economic and non-economic damages based on the defendant's percentage of fault. A defendant also may be liable for economic damages, but only in cases where the defendant's fault equals or exceeds the fault of the plaintiff. The law also placed caps on the liability of defendants under joint and several liability cases.

By enacting the current legislation, lawmakers repealed joint and several liability as applied to economic changes in favor of a comparable fault system. For businesses, insurers and others, this is a tremendous victory because it limits their exposures in negligence cases and hopefully proves to be a disincentive that will make lawyers think twice about filing lawsuits. Attorney General Charlie Crist commended the legislature and Bush for eliminating joint and several liability. Further, he said, the change would benefit businesses and reduce the amount of litigation in the state. Hopefully, he said, this bill will "stop encouraging plaintiffs to use a 'shotgun' approach to filing lawsuits in hopes of finding a defendant with deep pockets."

From the industry's point of view, the passage of the bill is seen as bringing a measure of stability and fairness to the system. "It creates a more quantifiable exposure that eliminates uncertainty," said William Stander, representing the Property Casualty Insurers Association of America. "If you have only a five percent liability and are on the hook for all the damages, what is the point of loss control measures?"

There are two major issues when it comes to the new legislation, neither of which has a good answer. The first is the concern that, in some cases, plaintiffs will not be adequately compensated for their injuries when suing businesses and their insurers. The second issue is the impact that the bill will have on rates. As for the first issue, no one has even a speculative issue. As for the second, most agree that it will take time to see if the bill has a substantial impact on rates at all. "I think it will be a long time before we see any long-term effects," said Stander. "It's going to take a long time to work its way through the system and I'm not sure we will have a black or white answer."

Claiming Victory

Any time a major piece of legislation is passed, the line to take a victory lap is long and loud, with an occasional elbow thrown in for good measure. Nowhere was that more evident than the passage of this legislation, which sparked a race between the two men vying to follow Bush in the governor's chair. Both the campaigns of Attorney General Charlie Crist and Chief Financial Officer Tom Gallagher quickly turned out elaborate press releases in an attempt to seize the high ground in what is shaping up to be a close Republican primary.

As for Crist, he said the legislation's time has come. "Joint and several is unfair because it forces a business or a person that may be only minimally responsible for a person's injuries to pay for the mistakes of others. It is detrimental to small businesses, which are the lifeblood of Florida's economy, but they could be forced to close if made to pay more than their share of damages," he said. "It defies common sense because Floridians know instinctively that a person should only have to pay to fix the damage he or she actually causes."

As for Gallagher, he took the step of announcing he is the only candidate who "has not accepted significant sums of money from plaintiffs' attorneys and the Florida Academy of Trial Lawyers." And while praising Bush and the legislature today, his rhetoric was aimed more towards November. "Repealing joint and several alone is not enough," he said. "Conservative estimates suggest that the startling cost of litigation in Florida is rising and currently costs every man, woman, and child in Florida $900. Tort costs are a real threat to our economy and Floridians expect real leadership on tort reform from their next governor."