Illinois' 'deep pockets' debacle

The Madison County Record Dec. 6, 2008, 5:00pm

An uninsured driver with faulty brakes strikes and kills a six-year old boy at a school crossing, ignoring a stop sign and a crossing guard. The boy's family sues.

Who's at fault?

A state court said the crossing guard was 1% to blame. But because his employer had money, while the driver did not, it was forced to pay 100% of the jury-ordered damage award.

Welcome to the potentially unjust legal world of joint and several liability, one from which virtually every U.S. state is trying desperately to escape. The one exception is Illinois where the state's leaders are diving back in.

Cheering on the sidelines are the state's trial lawyers, who warmly favor what has come to be known as "deep pockets" legislation for its propensity, according to critics, of filling lawyers pockets while unfairly emptying those of unlucky defendants. They've been pushing the legislation in Springfield for years, vying to overturn a state law protecting minimally-responsible parties from being stuck with the full check.

Now they can stop cheerleading as the state Supreme Court has accomplished in a single court decision what the trial bar couldn't.

Described by some as its most hostile and anti-business opinion in a decade, the court made joint and several liability the law of the land by judicial "diktat" last week, ruling that a Joliet contractor only minimally responsible for a worker's death on the job would be entirely liable for an $8 million-plus jury verdict.

The worker's family settled with two other defendants out of court for $1 million total.

"(Now) a defendant who is a mere 1% at fault for an injury will be liable for the entire amount of the judgment, less the amount of the settlements with more culpable defendants," wrote Justice Rita Garman in her dissent. "Although such a result would fully compensate the injured plaintiff, it would do so by imposing excessive liability on a minimally responsible defendant. Such a result is not consistent with the public policy of this state as expressed by the legislature."

Garman pointed out that such activist rulings "invite future plaintiffs to reject reasonable settlement offers from minimally responsible defendants with 'deep pockets' in an effort to keep such defendants in the case until judgment."

And that is, of course, so that some defendant might get soaked for millions.

More often than not, that someone could be a business added to a lawsuit for the purpose of paying up if the other defendants cannot. Call it yet another reason for employers to run for the border.

Three of the justices who voted for this debacle are up for re-election in 2010. In the interim, we advise doing everything possible to avoid being peripherally involved in an accident.

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