Vol. 7, No. 2, Pg. 41. Who Pays if One Defendant Does Not.

• Author: By Eugene C. Covington Jr.

South Carolina Lawyer

1995.

Vol. 7, No. 2, Pg. 41.

Who Pays if One Defendant Does Not

41Who Pays if One Defendant Does Not?By Eugene C. Covington Jr.The eradication of joint and several liability will also foster litigation and discourage settlements.

Having watched hundreds of victims face the reality of living with the consequences of negligent conduct for the rest of their natural lives, it seems that the subjective concepts of fairness and justice do indeed depend on an individual's perspective. One's height can drastically affect his or her perspective in a crowded elevator.

The defense perspective acknowledges that this issue presents no possible solution that would not prevent an inequity on either the plaintiff or a defendant. The issue succinctly is, who should bear the burden of this inequity: Who pays if one defendant does not?

Compelling legal arguments can always be devised to rationalize a preconceived policy decision. Legal analysis often provides us the logical mortar to hold society together (very seldom is it the bricks). In abstract thought, many legal theories appear sagacious. Unfortunately, many utopian concepts fall apart in real life.

Case in Point: I just finished a routine legal problem arising out of the construction of a residential home. The plaintiff (homeowner) hired a general contractor to build her a house. He, in turn, went through a distributor to buy a slate roof product to comprise the roof and hired a subcontractor to install the roof.

Problem: The first time it rained, the homeowner got more slate in the gutter than water, and the roof continues to fall off today.

Legal Problem: The manufacturer contends the roof was improperly installed. The installer contends the slate was defective. The contractor and the distributor advance the "Sergeant Schultz" defense ("I know nothing") and the unfortunate plaintiff has already paid everybody, assuming that her new house would provide an adequate shelter from the elements.

Legal Solution: The plaintiff sues everybody.

The Joint and Several Liability Scenario: The manufacturer files Chapter 11 Bankruptcy, which immediately shields it from legal responsibility for any negligent conduct. (Here is a legal concept that really makes sense!)

Practical Legal Solution: We settled the case with the remaining defendants agreeing to share the cost of a...