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Miami Herald

Businesses have agenda at Legislature

Lawmakers tackle issues from tax credits to tort reform

Monday, Mar. 06, 2006 

Business groups will try again this year to get rid of a Florida statute where accident victims can receive full compensation from any one defendant if the others can't pay their share.

The attempt to repeal ''joint and several liability'' tops the priority list for business interests this legislative session. Other measures may include limiting liability for what happens on private property and class-action lawsuits.

The elimination of joint and several liability would mark ''the culmination of 33 years worth of work,'' said William Large, president of the Florida Justice Reform Institute, which is backed by the Florida Chamber of Commerce. ``It's a tort-reform issue that affects nearly every potential industry, big business and small.''

Some business groups believe they have a good chance this time around. Senate President Tom Lee, R-Brandon, supports the bill and has indicated it will come to the Senate floor for a vote, according to his office.

Another bill trying to do the same thing passed the House but never made it to the Senate last year because it was bogged down by other measures, said Rep. Don Brown, R-DeFuniak Springs, its sponsor.

This time the bill is stand-alone.

''I think we have a good chance of getting it passed, but I'm not taking anything for granted,'' Brown said.

State Sen. Skip Campbell, D-Tamarac, isn't ready to concede failure.

''If the Senate president brings it up for a vote and he lets everybody vote their conscience, then I say it doesn't pass,'' Campbell said. However, it's a different story if Lee tries to ''lock down'' support from Senate Republicans, which he indicated he would not do, Campbell added.

Senate Republicans outnumber Democrats 26-14 and only 21 votes are needed to repeal the law.

Business interests have long complained that joint and several liability is unfair. If one party is held 40 percent responsible for an injury but has no insurance or assets, for example, the plaintiff can pursue the full amount from the other party held 60 percent responsible.

''The way the system is right now, you can pay more than what you're adjudicated guilty of. That's not American,'' said Barney T. Bishop III, president of Associated Industries of Florida, a business lobbying group.

Business groups claim so-called ''deep-pocket'' rules encourage speculative lawsuits. Opponents counter that doing away with joint and several liability will shift the burden to the injured party and possibly taxpayers.

Paul Jess, general counsel for the Academy of Florida Trial Lawyers, offered this example: A patient goes into the hospital to have a leg amputated. The nurse marks the wrong leg and the mistake isn't caught by the doctor, who doesn't have enough insurance to cover his share of fault.

Joint and several liability allows the patient to pursue the full amount of damages from the hospital. The hospital then can pursue the doctor's part of the damages.

Otherwise, the hospital would only be responsible for its share of fault. That could leave the patient with unpaid medical costs and lost wages.

''If you're the guy with no legs, wouldn't you want to be compensated by the wrongdoers?'' Jess asked. ``Why would you want to be on Medicare or welfare? Why would you as a taxpayer want to pay for someone else's wrongdoing?''

Joint and several liability is no different than criminal or contract law, Jess said. If you co-sign for someone's car loan, you could be liable if the borrower doesn't pay, he said.

The Legislature has whittled away at joint and several liability through the years. In 1986, it changed the law to no longer apply to non-economic damages such as pain and suffering. In 1999, it said a guilty party must be at least 10 percent at fault for the law to apply. Economic damages were capped at $2 million.

The Legislature's auditing arm must report in 2007 on the impact of the 1999 change.

''The results aren't in, so it's not time to move ahead'' with changes, said Bill Newton, executive director of the Florida Consumer Action Network in Tampa.

If joint and several liability is eliminated, the doctrine would still apply to pollution and securities cases, among others.

Miami Herald staff writer Niala Boodhoo contributed to this report.