State Attorney General Urges Tort Reform

Rob McKenna, Washington’s Republican Attorney General, is urging reform of the State’s negligence laws. McKenna highlights an injustice under Washington’s current system of “joint and several liability,” a legal concept with which contractors are very familiar. Under the present system, a jury can find a party 1% at fault, but still find that party responsible for the entire judgment. Thus, when general contractors—those responsible for the safety of the entire project—are sued by employees of subcontractors for personal injuries, they can end up paying for 100% of the injured employee’s damages and yet only be 1% at fault. The employer subcontractors are immune from liability under the State’s Worker’s Compensation provision. Therefore, at trial, the general contractor is the only party defending the lawsuit. In contrast, the subcontractor employer, since it is immune from liability, is the “empty chair” in the courtroom, allowing the law to saddle the general contractor with the entire judgment.

Joint and several liability allows the jury to award 100% of the damages against the general contractor, even if the general contractor is only slightly at fault for the employee’s injury. Thus, the general contractor, unless it has protected itself contractually through indemnity provisions in its subcontract, can end up paying for an injury for which it only had minor fault. This concept translates into millions of dollars in costs for the state of Washington, which often has the “deepest pockets” to go after in a lawsuit. McKenna terms this “an open invitation to sue the state for taxpayer money”—most contractors would agree with this characterization.

According to the Attorney General, Washington is over-exposed to lawsuits compared to other states, which is costing state taxpayers a tremendous amount of money. In comparison, Arizona and Massachusetts, states with similar populations to Washington, only paid out $8.5 and $13 million in judgments last year respectively, while Washington paid out $53 million plus $19 million more in defense costs.

Some opponents are calling these reforms an attempt by Washington to duck its responsibility for misdeeds. In response, McKenna urges that when state action causes a citizen harm, the state should be held responsible for its share of the liability, but its responsibility should be limited to only its share of the fault—not 100% of the damages when it is only 1% at fault. Reform of this nature would not only save Washington taxpayers money, but it could also decrease insurance premiums for construction contractors.

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