Joint and Several Liability Update
The Pennsylvania Legislature is poised to alter the joint and several liability rules in the Commonwealth but there are now multiple versions, including a watered-down proposal, vying for passage.
There are three bills before the Legislature that propose changes to joint and several liability: House Bill 1, Senate Bill 2, and Senate Bill 500. HB 1 and SB 2 do not differ significantly and constitute an attempt to reenact the “Fair Share Act” that previously passed both houses of the Pennsylvania legislature in 2002, was signed into law by then-Governor Mark Schweiker, but was subsequently declared unconstitutional by the Pennsylvania Supreme Court in DeWeese v. Cortes.
Under HB 1 and SB 2, no defendant would be required to pay more than their proportionate share of the verdict. Therefore, if one defendant is found 50% negligent and another defendant found 50% negligent, each defendant is responsible for paying only 50% of the verdict.
SB 500, introduced by Senator Stewart Greenleaf, is markedly different however. The bill would eliminate joint liability only if the plaintiff’s percentage share of negligent conduct exceeds the share of negligence attributable to the defendant. This represents significantly less of a reform than HB 1 or SB 2.
For instance, under SB 500, if a plaintiff is not found to have been negligent and two defendants are found to both be 50% responsible for the plaintiff’s injuries, the plaintiff may continue to recover the full verdict amount from either of the defendants. The plaintiff may continue to recover the entire award from one defendant regardless of the fact that the defendant was found only 50% responsible.
The only time that SB 500 would operate as a reform to the joint and several liability rules would be if the plaintiff is found to have negligently contributed to their own injuries. Therefore, for example, if a plaintiff is found 25% responsible, one defendant found 15% responsible, and another defendant found 60% responsible, the plaintiff may only recover 15% of the award from the defendant found 15% responsible.
The real world application of SB 500 is likely limited, particularly in medical professional liability cases. If health care providers seek meaningful reform, their best options continue to be HB 1 or SB 2. Unfortunately, they may be at odds with the Pennsylvania Bar Association, which may be headed toward supporting SB 500.