The Florida Legislature's annual battle over "tort reform" resumes this spring, pitting the business community against the trial lawyers as they trade horror stories about ridiculously high jury verdicts and terribly injured victims with unpaid medical bills. But shifting political winds should make this the year lawmakers finally end the debate over joint and several liability.
It is time to repeal the legal doctrine of joint and several, which enables plaintiffs to collect damages from a defendant beyond a defendant's proportion of the fault. The idea is that a victim still should be able to collect damages to cover all of his medical bills and lost wages even if a jury apportions blame to several defendants and some can't pay their share. But this encourages plaintiff's lawyers to search for big companies and wealthy individuals to sue in many cases, even if they had only a minor role in the accident or injury. Those deep pockets can get stuck paying damages far beyond their portion of fault.
While joint and several liability is intended to ensure that the victim is not faced with paying for injuries caused by others, there have been abuses and there is a fundamental issue of fairness. People and businesses should be financially responsible only for the portion of the wrongs for which a jury finds them responsible.
Ideally, it would be better to wait to resolve this years-long fight until 2007. That's when two reports on the impact of previous changes to the way joint and several works are supposed to be completed. Politically, that's not practical. Repealing joint and several is outgoing House Speaker Allan Bense's top priority, and Senate President Tom Lee has promised Bense the full Senate will vote it up or down. This is also Gov. Jeb Bush's last session, and a change in the Governor's Mansion and in the Senate leadership next year makes the future uncertain. That's why the business community is pushing harder than ever to get the job done this session.
In at least one case, it's pushing too hard. Rep. Kevin Ambler of Lutz, one of only two Republicans to cast committee votes against repealing joint and several, has been unfairly attacked with a mailing in his district. The Tallahassee Democrat reported the mailing claimed Ambler "proved once again that he is not a real Republican" and was paid for by Florida Mainstreet Merchants. That is a slush fund controlled by the Florida Retail Federation and financed by contributions from insurance companies, Publix Super Markets and other corporations. Repealing joint and several should not be a GOP litmus test, and these slash-and-burn tactics hurt the effort to repeal joint and several more than help it.
Over-the-top arguments are easy to make on either side of this complicated issue, and the details are often ignored. Joint and several only applies to economic damages such as medical bills and lost wages; it does not apply to non-economic damages such as those for pain and suffering. And the awards are capped at different levels, depending upon whether the plaintiff shares some fault and the portion of fault originally assigned to the defendant. So be skeptical about stories of defendants with little blame being stuck with millions of dollars in damages.
The world won't end if joint and several liability is not repealed. But it is unfair to force defendants to pay for more than their share of fault, and it is time for the Legislature to take a definitive vote.