Between 2004 and 2010, financial payouts in civil lawsuits cost the State of Washington $399 million, including $76 million last year. Some recent news reports and opinion pieces in various newspapers around the state have suggested that Attorney General Rob McKenna is responsible for these runaway legal costs, implying the AG had not done enough to manage risk.
It’s my belief that this is a complex problem that can’t simply be laid at the feet of one elected official. And it’s too important to become yet another political football.
Protecting taxpayers from runaway legal costs is the responsibility of all of our elected officials, from the governor to the Legislature to the heads of our state agencies. Whether Republican, Democrat, conservative or liberal, our state’s elected officials all have the responsibility for being good stewards of taxpayer money.
Reining in these out-of-control legal costs requires a combination of stringent risk management from all sectors of government combined with bipartisan legislation that enacts fair liability laws.
Our state government has extraordinary responsibilities that are unique compared to those in the private sector, such as supervising parolees released from our correctional institutions, caring for foster children, and designing and building our roads, highways and bridges. These activities carry extraordinary liability risks. Those liability risks must be managed relentlessly to reduce the state’s exposure to liability in potential lawsuits.
The 2011 Legislature directed the Joint Legislative Audit and Review Committee (JLARC), a bipartisan committee of legislators, to study the effect of risk management on tort payouts. This bipartisan group submitted its report last September with the conclusion that “tort payouts are not the best way to measure the effectiveness of risk management practices in Washington.”
Chief among those reasons is that the Legislature took away state government’s immunity to being sued in 1961. Other states have retained at least some level of government liability protection, leaving Washington with broader liability compared to other states.
Since 1961, the Legislature has steadily increased the state’s liability, including enacting a provision for joint and several liability, which means that in a case with multiple defendants where one or more cannot pay their share of fault, a plaintiff can recover the entire judgment from one defendant even if that defendant is only 1 percent at fault. This concept in our law often leaves our state and local governments on the hook for large tort payouts even though they are only minimally at fault, rather than requiring those them to pay only their fair and proportionate share of the fault. According to the JLARC study, only four other states have joint and several liability.
It’s clear that risk management can go a long way in helping to reduce the cost of civil lawsuits. But we must still do more to reduce and control those costs and provide predictability for the budgets of state and local governments. As taxpayers, we should urge the Legislature to get behind the bipartisan Senate Bill 6458, which would eliminate joint and several liability and implement other reforms that would bring fairness to the system. SB 6458 will give state budget writers some control over jack-pot tort payouts.
These financial payouts in civil lawsuits against the state are paid with taxpayer money. We should expect our elected and appointed officials—from the governor on down—to employ aggressive risk management practices on a daily basis. And we should expect the Legislature to streamline liability laws to give the legal system some financial predictability. Passage of SB 6458 would go a long way to solve the problem of the runaway legal costs we taxpayers are now required to bear.
Dana Childers Bieber is the executive director of the Liability Reform Coalition, representing some 70 Washington state businesses, nonprofits, and government entities dedicated to stemming the tide of runaway liability costs that stifle economic vitality as well as access to needed social services.
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