What is Joint and Several Liability?
Joint and several liability describes a situation where a defendant is liable to the plaintiff for all of the plaintiff’s damages even though the defendant did not cause all of the plaintiffs damages.
How is Joint and Several Liability Applied in Texas?
Section 33.013 of the Texas Civil Practice and Remedies Code describes when a defendant can be subject to joint and several liability. The statue states that a defendant can be jointly and severely liable in two circumstances.
First, a defendant can be jointly and severely liable if “the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent.”
Next, the defendant can be held jointly and severely liable if the defendant acted in concert with another person (with the specific intent to do harm) to engage in conduct that is described in certain provisions of the penal code. Murder and aggravated kidnapping are two examples of provisions in the penal code that can lead to joint and several liability.
How Does Joint and Several Liability Work?
The first step to joint and several liability is assigning fault to each defendant. The trier of fact will allocate responsibility to each party when multiple parties are accused of negligence. The trier of fact can also allocate responsibility to the plaintiff (comparative negligence) or someone who is not a party to the lawsuit. The plaintiff can recover all of her damages from a single defendant if a defendant is jointly and severely liable to the plaintiff
The defendant can seek contribution from the other responsible parties after the defendant pays the plaintiff.
Example of Joint and Several Liability
P was a passenger in A’s car. A was driving seventy miles per hour. The speed limit was thirty miles per hour. B runs a red light and A is unable to stop because A was driving too fast. P successfully sues A and B and wins a verdict of $10 million. The jury determines that A is 10% responsible and B is 90% responsible.
If joint and several liability does not apply P will be able to recover $1 million from A and $9 million from B. In other words, each party will pay in proportion to their liability. If joint and several liability applies P can recover the $10 million from A or B. If P choses to force A or B to pay the entire $10 million the defendant that was forced to pay can seek contribution from the defendant that was not forced to pay.
If A is insolvent B will not be able to recover any money from A. This means that B would be forced to pay the entire $10 million.
Why does Joint and Several Liability Exist?
Joint and several liability exist to give the plaintiff the best chance obtaining compensation for the plaintiff’s injury. If one of the defendants is insolvent and cannot pay the plaintiff’s damages the defendant that is jointly and severely liable for the plaintiff’s damages will have to pay. This shifts the burden from the “innocent” plaintiff to a defendant who was responsible for the plaintiff’s harm.
