Governor Fallin recently signed SB 862 into law, which virtually eliminates joint and several liability in tort actions under Oklahoma law. SB 862 eliminates joint and several liability, protecting defendants from judgments that exceed the degree to which they are at fault in any tort action, unless the plaintiff is the state of Oklahoma. SB 862 applies to “all civil actions…that accrue on or after November 1, 2011.”
SB 862 modifies Oklahoma’s current statute governing joint and several liability, 23 O.S. § 15. The current statute, as modified in 2009, eliminated joint and several liability for defendants unless one of three conditions was present:
(1) The defendant was more than 50% liable,
(2) The defendant’s conduct was determined to be “willful and wanton” or “reckless,” or
(3) The action was brought by or on behalf of the State of Oklahoma.
SB 862 eliminates the first two exceptions to the statute. Now, no matter what percentage of fault is attributed to a defendant, she will only be liable for the damage she actually caused. In addition, even if a court finds her conduct to be more egregious than mere negligence, she will still only be liable for her fair share of the damages.
Oklahoma will continue to see actions brought under the old statute, as SB 862 applies to tort actions that “accrue on or after November 1, 2011.” Until the statute of limitations bars the actions that accrue prior to November 1, 2011, defendants may still find themselves liable under the old statute. For example, a case filed in January 2013 alleging that the defendant recklessly injured the plaintiff in July 2011 could still potentially subject a defendant to joint and several liability, since the case would be brought within the two-year statute of limitations.
Nonetheless, SB 862 is a great step in eliminating joint and several liability for defendants, and is great news for insurance companies. Joint and several liability typically harmed the defendant who had the ability to pay for the plaintiff’s injuries-usually the defendant who had insurance. Now, if an insured defendant is found liable for a plaintiff’s injuries, the most an insurance company would be force to pay would be the actual damage caused by its insured. Under the prior statute, if a reckless defendant was only 1% liable, an insurer might still be required to pay for the entire damages calculation if the other defendants were either not brought into the action or were judgment-proof (e.g. broke).
The new statute better protects defendants and their insurers from paying a disproportionate percentage of the damages suffered by a plaintiff.