April 15, 2011 

By: Jeannie Park 

This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

The Pennsylvania House of Representatives passed House Bill 1 (the "Fair Share Act") by a vote of 112 to 88 on April 11, 2011. If enacted, the Fair Share Act would greatly limit the doctrine of joint and several liability in Pennsylvania, with narrow exceptions. House Bill 1 states that liability in negligence cases shall be several (and not joint) unless: the defendant is apportioned liability of 60% or more; the case involves a violation of the Hazardous Sites Cleanup Act; and/or the case involves dram shop violations of the Liquor Code. The Senate Judiciary Committee is also considering a companion bill, Senate Bill 2, as well as a competing bill, Senate Bill 500, which would keep joint and several liability intact and abolish it only in cases where the defendant's apportioned liability is less than plaintiff's.

Governor Tom Corbett supports the House's approval of the Fair Share Act, and has stated that "excessive and frivolous lawsuits hinder job growth and hurt taxpayers." He hailed the bill as the "first step toward a comprehensive tort reform solution." Other industries have applauded the Fair Share Act. The Hospital & Healthsystem Association of Pennsylvania, as an example, also publicly announced its support, noting that the state is one of just nine that has not adopted any reform of the joint and several liability rule.

Despite the wide support, there are opponents who criticize the Fair Share Act. The Pennsylvania Association for Justice has stated that the Act would overturn a worthy doctrine that has been in place for more than a hundred years in Pennsylvania while putting profits, "primarily of insurance companies, ahead of safety and full compensation for innocent victims." It also denounced the claim that its enactment would create jobs as an "urban legend."

With such strong support on both sides of this debate, the road to the enactment of the Fair Share Act, if at all, will likely be hard fought. It is anticipated that the House Bill could be referred to the Judiciary Committee as early as this month. It could then proceed to a vote on the Senate floor. Unlike prior efforts to have similar legislation enacted, which were opposed by then-Governor Rendell, this Bill has the public support of Governor Corbett.

The Fair Share Act could have positive consequences for the insurance industry by effectively abolishing the "deep pockets" rule that makes de minimis defendants responsible for 100% of any judgment. We will continue to provide timely updates on this legislation as they develop.

For further insight on the Fair Share Act as well as complex litigation issues involving professional liability, product liability, toxic tort, construction defect, cyber risk and data security, and employment law, please contact Jeannie Park at 215.358.5118 or via email at jpark@nldhlaw.com or John F. Mullen at 215.358.5154 or via email at jmullen@nldhlaw.com.