February 15, 2006 Regular News Doctrine of joint and several liability on the block Doctrine of joint and several liability on the block Legislators on both sides of the issue say they are being pressured Gary Blankenship Senior Editor Seven years after the Florida Legislature greatly restricted the doctrine of joint and several liability in negligence cases, lawmakers are considering new legislation to do away with it entirely.The House Judiciary Committee January 25 approved HB 145 by a 7-5 vote following a vigorous debate that included claims that both proponents and opponents were seeking to intimidate lawmakers on the issue.The bill is a top priority of Speaker of the House Allan Bense, R-Panama City, and Senate President Tom Lee, R-Brandon, has promised to support the bill in the upper chamber, according to news reports.The bill would repeal the last parts of joint and several liability in apportioning economic damages in negligence cases and replace joint and several with comparative fault.“People should pay for what they did wrong and not for the wrongs of another,” said Rep. Donald Brown, R-DeFuniak Springs, the sponsor of the bill. “Still in Florida, people pay millions for the wrongs caused by others. I believe that is unjust and in many cases it makes our tort law completely unpredictable.”But Rep. Jack Seiler, D-Pompano Beach, noted the 1999 bill called for a study on the effect of the bill’s changes to joint and several liability, which has not yet been done. He argued it was wrong to make further changes without learning the effects of the 1999 changes.“This is a bill that creates a grossly unlevel playing field and is unfair to Florida families,” he said.Rep. Jeff Kottkamp, R-Cape Coral, disputed a study presented by Brown which purported to show that the change would actually reduce demands on Florida’s Medicaid program. Kottkamp said it’s unlikely injured defendants who can’t collect all their damages won’t make more demands on state services.“We get down to the argument that the taxpayers of Florida are ultimately footing the bill for these plaintiffs,” he said. “Common sense tells you that is what will happen.”Seiler offered an amendment to address the Supreme Court’s 1993 ruling in the Fabre case, in which the court held that defendants in negligence cases could ask unnamed defendants to be included on the jury form to be apportioned fault.The result under Fabre, Seiler said, is plaintiffs have to sue all potential defendants, including anyone named by a defendant as having potential fault, resulting in increased litigation and expenses and slowed cases.But the committee rejected that amendmentSeiler offered and withdrew two other amendments that he said showed the hypocrisy of the bill. One would repeal more than 70 other uses of joint and several liability in the Florida Statutes other than negligence cases. Seiler argued if joint and several liability is inherently unfair in negligence actions, then it should be repealed for all types of legal actions.The second amendment would repeal all immunities under Florida law, except sovereign immunity, including recently enacted caps on medical damages. Seiler said if the argument is that each defendant is responsible for his or her own fault, then there should be no damage caps or immunities which have the effect of relieving wrongdoers from the full cost of their actions.The bill produced heated debate and testimony at the Judiciary Committee meeting. At one point, Rep. Sheri McInvale, R-Orlando, who voted for the bill, said she had been summoned to a conference outside the meeting room immediately before the vote and told an opponent would be found to oppose her this fall if she supported the bill. She did not say who she met with, but did say it didn’t affect her decision.Likewise, Kottkamp and Rep. Kevin Ambler, R-Tampa, told reporters they had been pressured by business groups supporting the bill. Both voted against the measure.Seiler argued that bill backers didn’t present any reason why further change was needed from the 1999 bill which won praise from Gov. Jeb Bush and other Republican leaders as fair and leveling the playing field.Under the 1999 bill, joint and several liability does not apply to noneconomic damages and is modified for economic damages.If the plaintiff is found partly at fault, then defendants found less than 10 percent at fault have no joint and several liability; those found 10 to 25 percent at fault have their joint and several liability capped at $200,000; those found more than 25 percent at fault to 50 percent at fault have their liability capped at $500,000; and those found more than 50 percent at fault have their liability capped at $1 million.If the plaintiff is not found partly at fault, those defendants found less than 10 percent at fault still have no joint and several liability. But those found 10 to 25 percent at fault have their liability capped at $500,000; those more than 25 to 50 percent at fault have their liability capped at $1 million; and those more than 50 percent at fault have their joint and several liability capped at $2 million.The bill’s next stop is at the House Justice Council, and if passed there will head to the House floor. As this News went to press, a companion bill had not been filed in the Senate.