Joint Liability

A second popular area for reform has been joint and several liability. Unfortunately, most reforms, including Michigan’s, have not gone far enough in this area.

Joint and several liability is an unjust doctrine except when the defendants involved truly acted in concert (I add the adjective "truly" to exclude the judicial fiction that all defendants who happen to be in the same place at the same time are acting together).

Courts have defended its use in other circumstances on the grounds that, when one or more tort feasers are insolvent or otherwise unable to pay, it is better to place the remaining burden of the loss on the other tort feaser rather than an innocent party. This does not consider that the other defendant, having paid for the harm he caused, is also an innocent party relative to the remaining harm. This focus on compensation, rather than justice, treats people as ciphers on a ledger, focusing on distribution of loss rather than right and wrong.

From an insurance standpoint, predictability of risk, and the ability to monitor and control risk, are destroyed when one party can be held liable for another’s acts. Envision an insurance underwriter attempting to determine the risk exposure of a potential client when that client may be held liable for the actions of other parties. Such liability cannot be reliably predicted, no matter how much the underwriter knows about the safety record of the manufacturer and the product.

The proportional liability system that Michigan adopted in 1986 for all tort cases except products liability is the proper solution – no party should be held liable for more than its share of fault for an accident. It is unclear why Michigan chose to exclude products liability, the center of the liability insurance crisis, from this decision.