Our Coalition is Pushing for Much Needed Reform in 2020
The SCCLR and our associates are pushing for the passage of legislation that will address several key and much needed tort reform issues. Supreme Court decisions and contradictory language in some statutes have lead to opinions that put businesses in unfair positions in court and have tilted the balance within our judicial system. One bill, (H.3758), addresses the South Carolina Supreme Court’s majority decisions in two separate but related rulings involving the same statute: 1) a state court case, Smith v. Tiffany (April 26, 2017), and 2) a U.S. District Court’s certified questions to the Supreme Court in Machin v. Carus Corporation (April 26, 2017). In the decisions, the South Carolina Supreme Court ruled that a defendant in a civil injury (or damages) case involving the actions of multiple parties cannot have another more responsible party or parties joined to the case or added to a verdict form and apportioned fault by the judge or jury. A single defendant, generally the one with the highest level of liability insurance or self-insurance, and even if minimally responsible, can be forced to pay 100% of the damages to a plaintiff, even if the plaintiff’s actions were also partially responsible for their own injuries or damages, as long as the fault of the defendant was determined to be greater than the fault of the plaintiff, i.e. greater than 50%. Further, the Court’s plain language reading of the statute determined that a defendant cannot seek contribution or recovery from the most responsible party or parties if the plaintiff settled before trial with the most responsible party or parties, making them nonparties to the case, and signed an agreement (covenant) not to sue. The defendant is only entitled to a setoff of the settlement amount the plaintiff chose to accept from the most responsible nonparty or nonparties. When a most responsible party has little or no insurance, the plaintiff can essentially keep them out of a case and not allow the fault of that party to be determined by the jury or trier of fact. The case then only involves the determination of fault between the injured plaintiff and the defendant with the highest liability coverage or highest ability to pay.
S.490, Transparency in Private Attorney Contracting, seeks to provide transparency and set parameters for the AG or a Solicitor who is hiring outside private attorneys to represent the state, and set reasonable limits as to how much they can be paid on behalf of the state.
The past two decades have witnessed a dramatic increase in the use of private, contingency-fee attorneys on behalf of the state by both attorneys general and governors. While bona fide rationale exists for state use of private sector legal services in specific instances, the lack of uniform policies to govern such arrangements has the potential for abuse and conflict of interest, which has been seen in a number of states.
S.399, Asbestos Trust Claims Transparency, will address a known problem that many states have already addressed. Plaintiffs have two separate paths to recovery: asbestos bankruptcy trusts and tort cases. Trust claims contain important information regarding the plaintiff’s exposures to products of bankrupt companies and admissions that those products caused the plaintiff’s disease.
Plaintiffs routinely “double dip,” receiving tort lawsuit settlements/awards, then, after an award or settlement they file claims with multiple asbestos bankruptcy trusts and get paid again and again. By bringing tort claims first, plaintiffs give exposure history testimony that bolsters their tort cases against solvent companies while suppressing evidence of exposure to bankrupt companies’ products. These exposures are compensated by the various asbestos trusts. Approximately 100 companies have been forced into bankruptcy due to asbestos-related liabilities, including virtually all primary historical defendants such as manufacturers of asbestos-containing thermal insulation. Trusts holding $36.8 billion (2011 GAO Report) have been established to pay for harms caused by reorganized companies’ products. Plaintiffs should be required to file and disclose all asbestos trust claims before trial. SCCLR legislation would require claimants, during discovery in state asbestos tort actions involving a solvent defendant, to disclose asbestos trust claims that have been submitted or could be submitted on behalf of a plaintiff to an asbestos trust entity established by a U.S. Bankruptcy Court.
S.120, Seatbelt Non-Use Admissibility in Civil Actions, would address a problem legislators have known about for years. Seat belt use is not just a good idea, it’s the law in South Carolina. For almost three decades South Carolina has required every driver and every occupant of a motor vehicle to buckle up, and since 2005, South Carolina has empowered its peace officers to enforce the seat belt mandate as a primary offense. Despite South Carolina’s expectation that motorists wear their seat belts to prevent injuries in the event of a collision, South Carolina jurors asked to render verdicts in lawsuits arising from motor vehicle accidents are precluded from hearing evidence that a vehicle occupant had failed to buckle up. S.120 will require this factual evidence to be heard by the jury.