An analysis of litigation claiming joint and several liability

Abstract

The purpose of the research is to aid the tort reform decision-making process by generating and analyzing a broad scope of state and federal court cases involving the use of joint and several liability from 1963 through 1988. Results indicate that the overall number of joint and several liability cases is quite small (just .41 percent in 1988). Further, as a percentage of all cases contained in LEXIS, joint and several cases showed an exponential increase from 1963 to 1988 at the federal level but not at the state level. Patterns observed in a sample of joint and several liability cases include dominance of contract cases, relatively large representations of corporate plaintiffs and individual defendants, minimal involvement of municipalities as defendants, larger damage values for corporate plaintiffs than for individual plaintiffs, and an increase in size of claimed damages over time. An Analysis of Litigation Claiming Joint and Several Liability Of 58 legislative and regulatory risk management issues recently considered by risk managers in an Alexander and Alexander (1989) survey, modification of the joint and several liability doctrine was rated as second in importance only to caps on non-economic and/or punitive damages. This finding is consistent with claims by insurers and commercial insureds throughout the 1980s that joint and several liability modification is one of the, if not the, most needed tort reform(s). Yet despite such strong opinions about the doctrine, little evidence beyond anecdotes has been collected and analyzed regarding the extent and manner in which joint and several liability is employed in litigation. Joan T. Schmit is Associate Professor of Risk Management and Insurance; Dan R. Anderson is the Leslie P. Schultz Professor of Risk Management and Insurance and Chair of the Actuarial Science, Risk Management and Insurance Department. Both are with the University of WisconsinMadison. Timothy K. Oleszczuk is an Associate with Godfrey and Kahn, S.C. The authors are grateful for helpful comments from Marc Galanter and for the assistance of Kay Millonzi, as well as for the input of two anonymous referees, an associate editor, and the editor. This content downloaded from 157.55.39.69 on Sun, 06 Nov 2016 04:37:46 UTC All use subject to http://about.jstor.org/terms 398 The Journal of Risk and Insurance The purpose of the research reported here is to initiate the assimilation and analysis of data on the use of joint and several liability in an effort to aid evaluation of the effects and desirability of proposals to reform its implementation. Two areas of analysis are conducted in this study. The first examines the growth over a 26 year period in number of cases reported by LEXIS in which joint and several liability is mentioned. The second area analyzes a sample of cases claiming joint and several liability. The article will be presented in five sections. Following this introduction, a brief history and description of key issues regarding joint and several liability is given. Data collection and research methodology are discussed next. The results of the data analysis, including an interpretation of those results, are presented. A summary and conclusions complete the article. Evolution of Joint and Several Liability