JOINT AND SEVERAL LIABILITY: TIPS FOR AVOIDING PITFALLS

By:  Tom Diehl (In 2008)

In the last edition of the Co-Counsel Reporter, we discussed the pitfalls occasioned by the  recent modifications and abrogation of joint and several liability as set forth in SB 120. Specifically, if a defendant can convince the trier of fact that a different defendant has some liability for the injuries sustained, the defendants will be liable for the overall damages only according to their percentage of liability.  This can have disastrous consequences if the “other defendant” is not a party to the suit or is judgment proof. To help minimize the potential for disastrous consequences, plaintiff's counsel should consider these strategies: *   File discovery early requesting the defendant to identify and specify any other defendants allegedly having liability for injuries caused. Consider, submitting requests for admissions demanding defendant to deny the existence of other liable defendants; *    In the initial complaint, bring claims against all potential liable party defendants;       *    When partially settling with the joint tortfeasor, release only that tortfeasor;       *    Consider filing a challenge to the constitutionality of SB120 -- send a copy of the challenge to the Ohio Attorney General. Grounds for potential constitutional challenge include an argument that SB 120 violates Article II Section 15 (One Subject Rule) or Article IV Section 5 (Separation of Powers). At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988. We regularly work with counsel in ethical fee sharing arrangements.  Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum. http://www.ThomasJDiehl.com

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