Stealthy or Shifty Tort Change

Much media has been given to the so-called “stimulus package” recently passed and signed into law without members of Congress or the President knowing fully what was contained in the over 1500 pages.  Evidently, no one read the whole bill before taking the decisive action.

A similar approach seems to be occurring here in Wisconsin.  Buried in the governor’s budget bill (A 75 2009-2010 Legislature), at pages 1588 and 1605, are significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.

Section 3223 of the bill contains a provision requiring the court to explain to a jury “the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.”  Translation: “If you find the plaintiff more negligent than that rich old defendant, the plaintiff and his or her lawyer won’t recover a dime!”  Aren’t juries supposed to be finders of fact and not charity institutions?

Section 3271 of the bill changes the Wisconsin comparative negligence rule in two significant respects. 

First, contrary to what has been the rule since 1931, the plaintiff’s negligence would no longer be compared separately to that of each defendant, with the plaintiff barred from recovery against one whose negligence percentage is smaller.  Under the proposal the plaintiff would be barred only if his or her negligence was found greater than the combined negligence of all the defendants.  An illustration may help.  Now if the plaintiff is found 40 percent at fault and the three defendants are found 10, 20, and 30 percent, respectively, the plaintiff will recover nothing.  With the proposed change, the same numbers would result in the plaintiff and his or her attorney recovering 60 percent of his or her damages, with 1/6 of that amount paid by the 10 percent defendant, 2/6 by the 20 percent defendant, and the balance by the 30 percent defendant.

A final provision in section 3271 would have any defendant with a percentage of fault equal to or greater than the plaintiff’s jointly and severally liable to the plaintiff.  At present only defendants found 51 percent or more at fault incur joint and several liability. Under the proposal, for example, if a plaintiff was fond to be 20 percent at fault and four defendants were each found to be a similar percentage, the plaintiff could recover 80 percent of his or her total damages from any one of the four.  That target would have to recoup shares from the others, bearing the whole burden should any be insolvent.

These proposals are obviously a big, wet, sloppy kiss from the governor and involved legislators to the plaintiffs’ bar in thanks for campaign contributions and other favors.  However, even The Milwaukee Journal Sentinel suggested that these measures, regardless of their merit, should be considered separately in the legislative process outside of the Joint Finance Committee (Editorial, “Afraid of Scrutiny, at A10 (April 10, 2009)).  Enough said!

This Post Has 9 Comments

  1. Gordon Hylton

    I agree with Jack that the way in which these fundamental changes in the law of comparative negligence were slipped into the budget bill borders on fraud. This type of stunt has occurred with distressing frequency during the Doyle Administration.

    However, unlike Jack, had these changes been proposed in an honest, upright manner, I would have supported them. In regard to Jack’s example, it has always seemed to me fair that the 40 percent responsible plaintiff should recover, regardless of how many tortfeasers contribute the other 60 percent of the cause.

  2. Tom Kamenick

    The problem I have with the proposed changed to contributory negligence is this: Professor Hylton, you call the 40 percent responsible party the “plaintiff” and everyone else a “tortfeasor.” If any of those other parties (30, 20, or 10) were injured, that makes the plaintiff a tortfeasor, too. In fact, it makes him or her the MOST culpable tortfeasor, so why should he or she recover? All four of the parties are going to be able to recover from each other, which is basically just a way of pulling a fast one on the insurance companies while every attorney gets a contingency fee.

    Speaking of insurance companies, Professor Kircher, what do you think of the provision raising mandatory minimums to 150/300 from 25/50? To me it doesn’t seem to help anybody at all except the plaintiff’s attorneys. First, from my experience, the number of claims for over $25,000 for bodily injury is a fairly small percentage of the total claims. Second, the rule is allegedly supposed to help people who are injured, but those people can already help themselves IF THEY CHOOSE by buying un/underinsured motorist coverage.

    The people with only minimum (or no) insurance coverage are generally those with no assets to collect, and plaintiffs’ attorneys won’t even bother taking those cases (unless the client has UM/UIM). People with assets to protect probably already have 50/100 or 150/300 coverage because they can afford it. All this rule will do is encourage people with the current minimum to drop insurance coverage altogether.

  3. Richard M. Esenberg

    “…significant modifications of state tort law that have as much to do with the state budget as chewing gum has to do with nuclear fusion.”

    But that’s how everything gets passed in this state and not just under Governor Doyle. That’s why I have to spend a whole session or more of my highly recommended course on the state Supreme Court and constitution discussing special and private bills, the rules on classification and the governor’s veto rights respecting appropriations bills.

  4. Lynn Laufenberg

    Professor Kircher: Thanks for the opportunity for one of your real old students to weigh in on your comment. I’ll leave the “how it got in the budget” issue to others. I think that comes under the heading “all is fair in politics.” On the substance, however, I might suggest you consider the realities of today’s world. When I was in law school (we won’t disclose the date in the interest of avoiding embarassment), it was unheard of to have legal professionals serve on juries. In the last 10 years, it has become common place for lawyers and even judges to serve. We also didn’t have the internet and the anti-lawsuit crowd had not yet begunt to “raise the public consciousness” about these issues. As a result, there were very few people called to jury duty who had any idea about what the effect of percentage apportionment. Now, on some juries there are people who actually know and, perhaps more dangerous, some people who THINK they know. The question is whether the people who actually know will share that information with the other jurors or whether – not unheard of – they will manipulate the deliberations to a result which will favor their particular preference as to outcome. Don’t you think there should be a level playing field, or are you content with the current ad hoc/flip of the coin situation as to which juries possess this information? There are other good reasons (accepted by a lot of other states) to provide jurors with accurate information on the effect of their verdict. But it would seem difficult for any officer of the court to argue that all litigants should be subjected to luck of the draw on such an issue which such significant potential consequence to the outcome. Otherwise, stay well!

  5. Paul Scoptur

    Now that James has taken your exam, I feel free to comment. Just kidding. Contrary to many of my fellow plaintiff lawyers, I think these proposed changes should not be submitted as part of the budget. It is clearly politics, and quite honestly, should stand alone.

    However, let’s look at the merits. I want to focus on the issue of the jury knowing the effect of its verdict. Most states allow this. What is the danger? The danger is just the opposite. As a trial consultant, I have done many post-verdict surveys of jurors. More often than I would like to admit, they express surprise that the plaintiff did not recover in cases that resulted in a defense verdict. They get confused by the verdict form, confused by the instructions; let’s face it, we get all kinds in the box. But I go back to “what is the harm?” For the most part, jurors make the right decisions. What we want to do is make sure they know what they are doing and make the right decisions for the right reasons.

  6. Ralph Weber

    If fully informing juries is the goal, then why not abandon the collateral source rule? Shouldn’t juries be aware that the medical expenses have already been paid, and due to the “made whole” doctrine, will not have to be reimbursed?

  7. Paul Scoptur

    Ralph, if medical expenses didn’t have to be reimbursed, that may well be true. But unfortunately, when there is a self-funded ERISA plan, there is generally full reimbursement of the amounts paid. And even with non-ERISA self-funded plans, the health insurers who paid medical expenses have a subrogation claim that they seek to enforce. Rarely do the expenses go unreimbursed in full. Sometimes the lien is negotiated, sometimes the subrogated carrrier goes to a Rimes hearing. That’s if the case is settled. But if the case is settled, then there is no jury to inform.

    If there is a trial, then the jury verdict is the “made whole” determination, so in a verdict situation, unless the verdict is in excess of the policy limits, the subrogated carrier gets paid back dollar for dollar. So Rimes wouldn’t apply anyway.

  8. Greg Cook

    I know John Kircher — he taught torts when I attended law school at Marquette when Nixon was president (gosh that seems like a long time ago!).

    Since then I have handled many cases and tried exactly 135 civil jury verdicts in Wisconsin State and Federal Courts. In NONE of those cases did a defendant pay more than its fair share. In many, a defendant with partial fault walked away from a big damages case. I was defending those parties at times, and I represented uncompensated plaintiffs as well.

    The question becomes, whose ox gets gored? Should an insurer in the business of writing casualty policies for a defendant who in part caused the damages be responsible for paying possibly more than its fair share or should the plaintiff with permanent injuries get no relief even though the accident was not entirely their fault?

    Joint and several liability was good law in Wisconsin for over 100 years before the legislature changed it back in 1995. The way some businesses and the good professor are acting, the world will end as we know it if it goes back to a situation not quite “as bad” as the old 1% days. The state is going to survive if the new law passes, the sky is not falling, and businesses will not fail. Maybe once in awhile a severely injured party will recover from a defendant who is forced to pay more than its allocated share, but those times will be few and far between. History proves this, as do my verdicts.

  9. bryan ward

    Providing extensive information to a jury, on the practical effects of its verdict options, would seem to shift that jury’s attention, at least partially, away from factual determinations, and toward consideration of whether, from whom, and how much from whom, a plaintiff should recover under a particular set of facts. Many of these questions have already been answered by statute or precedent; it is unclear to me why these decisions should be re-legislated, on a case-by-case basis, by a small number of laymen. Jury nullification happens, but (I hope) we don’t explicitly instruct juries in criminal trials that if they choose to disregard the evidence and law, and decide nonetheless to acquit, there is not much the court can do about it. Allowing each jury to become a mini-legislative body, or a court of equity, would seem to further strengthen the perception and /or reality that the application of law varies dramatically from person to person.

    And of course, to achieve the goals that this proposal hints at (without shifting the responsibility, and the blame, to juries), the Wisconsin legislature could always alter the comparative negligance statute.

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