HOUSE BILL REPORT

HB 879

BYRepresentatives Locke, Appelwick, Patrick, Armstrong, Padden, Ebersole, Wineberry, Wang and Niemi

Revising joint and several liability.

House Committe on Judiciary

Majority Report:     The substitute bill be substituted therefor and the substitute bill do pass.  (9)

     Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Appelwick, Hargrove, P. King, Niemi, Padden, Wang and Wineberry.

Minority Report:     Do not pass.  (6)

     Signed by Representatives Brough, Lewis, Moyer, Patrick, Schmidt and Scott.

House Staff:Harry Reinert (786-7110)

AS REPORTED BY COMMITTEE ON JUDICIARY MARCH 6, 1987

BACKGROUND:

Prior to 1986 Washington had adopted both comparative fault and joint and several liability for apportioning liability for fault.  Comparative fault requires that the proportionate fault of each party, including the victim, to an incident in which there is an injury must be determined.  For purposes of paying the victim, however, joint and several theory requires that any one of the parties at fault can be required to pay the full amount of the victim's damages, after deducting the amount which is apportioned to the victim.  The party which pays the damages then has the right to contribution from the other parties who were also at fault.

In 1986, the legislature modified the application of comparative fault and joint and several liability.  The court is now required to determine the percentage of fault of every entity which caused the victim's damages, whether or not the entity is a party to the action and whether or not the entity is immune from liability.  Judgment is entered against each entity which is a party for that party's proportionate share of the fault.  A party is not liable for another party's or any other entity's fault unless: two parties were acting in concert or one party was the agent of the other; or the victim was not at fault.  In these cases, liability is joint and several for parties to the action.  The limitations on joint and several liability do not apply to causes of action relating to hazardous wastes or substances or solid waste disposal sites, tortious interference with business relations, or the manufacture or marketing of a fungible product in a generic form.

An injured worker covered by worker's compensation who recovers damages from a third party for injuries occurring on the job must reimburse the worker's compensation system.  The department and the worker share the costs of the action and reasonable attorney's fees.  The worker is then entitled to 25 percent of the balance.  The state is then reimbursed for any payments made to the worker.  The worker is then entitled to the remainder of the recovery.  The worker is not able to collect worker's compensation after that time until the benefits the worker would have been entitled to equal the amount of the remaining recovery.  In 1986 the legislature created an exception to the requirement that the state be reimbursed.  If the employer or a co-employee is determined to be at fault, the worker is not required to reimburse the state for the amount of benefits received nor lose further benefits.

SUMMARY:

SUBSTITUTE BILL:  The 1986 legislative changes to joint and several liability are repealed.  A defendant whose percentage of fault is less than that allocated to the plaintiff is liable only for its own percentage of fault.  A defendant is jointly and severally liable for all damages allocated to the defendants if the defendant's percentage of fault is greater than the plaintiff's.

A worker who recovers for injuries caused by the fault of the employer or a co-employee is required to reimburse the state for any benefits received from the compensation system and, to the extent that there is an excess recover, must forego any future benefits until they equal the excess recovery.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The original bill provided an additional circumstance when liability would not be joint and several.  A governmental entity would have only been liable for its own percentage of fault.  In addition, the original bill would have provided that all defendants, except for governmental entities, would be jointly and severally liable for damages caused by:  violation of laws relating to solid wastes, hazardous wastes or substances, air, water, or radioactive wastes or substances; invoking the manufacture or marketing of a product causing injury which cannot be attributed to a particular party and in which all defendants were engaged in manufacturing or marketing; or arising under the worker's compensation statute.  The original bill also provided for a method of reallocating uncollectible damages at the end of a year.  The uncollectible portion would be reallocated to all parties, including the plaintiff and any defendant less at fault than the plaintiff.

Fiscal Note:    Not Requested.

House Committee ‑ Testified For:     None Presented.

House Committee - Testified Against: Harold Foss, State Farm Insurance; Gary Morse, Washington Hospital Liability Insurance Fund; Ed Wittman, Professional Engineers; Dick Ducharme, Liability Reform Coalition; Gary Lowe, Washington Association of Counties; Michael Runyan, Washington State Defense Trial Lawyers Association.

House Committee - Testimony For:     None Presented.

House Committee - Testimony Against: The bill contains a potential constitutional problem by treating governments differently than other defendants.  As a policy matter, as well, this separate treatment is not appropriate.  The reallocation provisions will recreate all of the problems the tort reform act was designed to address.