Sunday, April 22, 2007

SB 1296: Payback To The Plaintiff's Bar

It is pretty well known that the plaintiffs bar is upset with the Illinois Democrats for two reasons:

1. They have not brought back the Structural Work Act; and

2. They passed a [weak] version of tort reform.

Those plaintiffs' attorneys were starting to think that their campaign contributions were not buying them a thing.

But now Senator Cullerton has decided to toss them a bone.

Senate Bill 1296 is just that -- a bone to the plaintiffs bar. In no way remotely does it serve "justice." On its face, it is clearly biased and unfair.

But it will make the plaintiffs attorneys a lot of money.

There has been a lot written about the bill, but I have yet to see a real explanation of the bill and the implications.

The following is a typical scenario that you will see played out every day:

Plaintiff is an 26 year old ironworker who falls 40 feet at a construction site and sustains massive head injuries and partial paralysis. Value of the case is $10 million.

Plaintiff blames general contractor and masonry contractor. Those parties add plaintiff's employer as third party-defendant.

Facts show that the accident was caused by masonry contractor knocking into scaffolding, but also show that the plaintiff himself put the scaffolding in an improper location. Given the location of the accident and the fact that it happened once and only once, general contractor may have known about the situation but most likely did not. As such, liability against the general contractor is minimal to non-existent. Employer also has some minimal liability.

Masonry contractor is a small contractor. Turns out he doesn't have coverage for the accident. Plaintiff sees no coverage, so he takes $5,000.00 from that contractor and dismisses him out.

Jury returns the following:

Gen Contractor: 10%
Mason: 50%
Employer: 10%
Plaintiff: 30%

In that scenario, plaintiff likes having mason on the verdict form. Without the masonry contractor on the verdict form, plaintiff's percentage of fault is over 50%, meaning that plaintiff collects nothing. With the masonry contractor on the form, plaintiff is under that point.

Under the current law in the above scenario with mason appearing on the verdict form for attribution of fault, plaintiff would recover his meds from both general contractor and employer, since both are under 25%. Given the injuries and the usual allegations of future medical, that would probably total about $2 million.

That seems reasonable. Everyone pays their proportion of fault, as found by a jury.

Cullerton's bill would change that.

Under his bill, for purposes of joint and several liablity (but not for purposes of plaintiff's fault), you do not consider mason (who settled out cheap) in determining whether the defendant's meet the 25% threshold. As a result, without taking into consideration the fault of the mason, those other two defendants are over the 25% thresshold and as such, are on the line for the entire $10 million, rather than the $2 million in liability they would otherwise face.

As a result, plaintiff is not considered over the 50% threshold, so he does collect.

However, due to the gift of Sen. Cullerton, the remaining defendants are now OVER the 25% threshold. As such, they are now jointly and severally liable for the entire verdict.

Short and sweet:

1. Plaintiff enjoys the benefit of mason on the verdict form;
2. Defendants do not.

How is this in any way fair?

This is nothing more than a gift to the plaintiffs.

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