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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