Joint and several liability

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Joint and several liability is a common law of liability, whereby a plaintiff may recover all the damages from any of the negligent defendants regardless of their individual share of the liability. The rule is often applied in tort cases, though it is sometimes invoked regarding insurance, business and agency law. Forty-six of the fifty United States have a rule of joint and several liability although in response to tort reform efforts, some have limited applicability the rule.

Joint and several liability is premised on the theory that the defendants are in the best position to apportion damages amongst themselves. Once liability has been established and damages awarded, the defendants are free to litigate amongst themselves to better divide liability. The plaintiff no longer needs to be involved in the litigation and can avoid the cost of continuing litigation.

Defenders of the principle of joint and several liability further argue that it protects victims from being undercompensated if one of the defendants can not pay his or her share of proportionate liability.

Opponents of the principle of joint and several liability note that its use (instead of proportionate responsibility) has led to absurdly unfair results. The classic example is the uninsured drunk driver who injures someone; the plaintiff will sue both the insolvent drunk driver and the state highway department (or automobile manufacturer), hoping to hold the latter 1% or 2% responsible yet forcing them to pay the entire award. Joint and several liability, reform supporters argue, leads to litigants search for "deep pockets" to sue (in the expectation that they will settle rather than risk trial), even though those defendants may only be remotely related to an incident.

According to Richard Wehe, Assistant Chief Counsel at the California Department of Transportation, (Caltrans), "I can tell you that in many, many settlement conferences or mediations I am confronted with plaintiff's lawyer's statements that, 'I only need to establish that the state is 1 % at fault and I can recover all of my economic damages.'"[link]

Where a financially wealthy defendant can be joined as a defendant, a plaintiff's expected damages increases.^{[[Citing sources citation needed]]}

Example

If Ann is struck by a car driven by Bob, who was served in Charlotte's bar (and the state has dramshop laws), then both Bob and Charlotte may be held jointly liable for Ann's injuries. The jury determines Ann should be awarded $10 million and that Bob was 90% at fault and Charlotte 10% at fault.

Under joint and several liability, Ann may recover the full damages from either of the defendants. If Bob has no money, Charlotte would have to pay the full $10M despite only being at fault for $1M.
Under proportionate liability, Bob would have to pay $9M and Charlotte would have to pay $1M. If Bob does not have any money, Ann only gets the $1M from Charlotte.

Joint and several liability

Example

See also