Joint and Several Liability: Suing More Than One Defendant

Joint and several liability arises in many personal injury cases when multiple defendants contribute to the same injury. This legal doctrine may determine whether the plaintiff can recover the full amount of damages from one defendant or must recover proportionally from each defendant. Your state law determines whether you can recover full damages or only a portion from each defendant.

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What Is Joint and Several Liability?

Under joint and several liability, each defendant who contributed to another’s injury is responsible for the entire judgment, not just their share.

Joint and several liability means each defendant can be held responsible for the full amount of the plaintiff’s damages, regardless of each defendant’s percentage of fault. “Joint” refers to shared liability among the defendants, while “several” means each defendant may be individually liable for the entire judgment, not just for their proportionate share of fault.

For example, a plaintiff is awarded $500,000, and Defendant A is found 80% at fault. Defendant B is found 20% at fault; under pure joint and several liability, the plaintiff may collect all $500,000 from either defendant. Relatively few jurisdictions still follow this pure joint-and-several liability system, though.

Proportionate Liability

Unlike pure joint and several liability, proportionate liability requires co-defendants to pay only their assigned percentage. The exact percentage is based on each tortfeasor’s degree of fault (an individual who commits a tort, a civil act that causes harm, injury, or loss) in the personal injury claim.

Policy Supporting Joint and Several Liability

The public policy behind joint and several liability is that an injured party should not bear the risk of an insolvent or uninsured defendant. Joint liability increases the likelihood that a plaintiff is fully compensated when multiple defendants contribute to the injury.

Comparative and Modified Fault Rules

The comparative fault system assigns responsibility by percentage, including any fault the plaintiff may have. States use different fault-allocation systems, and those rules often interact with joint and several liability in important ways.

The Main Approaches

• Pure comparative fault. The plaintiff recovers damages, reduced by their share of fault, even if they were mostly responsible.
• Modified comparative fault (50% bar). The plaintiff is barred from recovery if they are 50% or more at fault.
• Modified comparative fault (51% bar). The plaintiff is barred from recovery if they are 51% or more at fault.
• Contributory negligence. This is a rule in a minority of jurisdictions where any plaintiff fault can bar recovery entirely.

Fault percentages determine both the plaintiff’s reduced award and each defendant’s exposure. These rules can dramatically affect the plaintiff’s damages–or whether the plaintiff has a claim at all.

Common Hybrid Systems

In certain hybrid systems, whether a defendant is jointly and severally liable becomes an issue when defendants are above a certain fault threshold.

In some states, joint and several liability applies to economic damages (medical bills, lost wages, and property damages) but not to non-economic damages (i.e., pain and suffering). Exceptions exist in specific cases, such as intentional torts, environmental contamination, or defendants acting in concert.

State laws largely determine which defendant pays for a plaintiff’s injuries and how much.

Obtaining a Full Recovery from a “Deep-Pocket” Defendant

A “deep-pocket” defendant has significant assets or substantial insurance coverage, such as a corporation, municipality, or commercial carrier. These defendants are attractive in lawsuits because they generally have the economic means to satisfy the entire judgment.

This way, the plaintiff does not need to pursue each defendant for its separate share, including defendants that are unlikely to satisfy the judgment.

Steps To Determine Which Defendant(s) To Pursue

1. Identify potentially responsible parties early in the investigation.
2. Review each defendant’s insurance policies and coverage limits.
3. Evaluate each party’s ability to satisfy a judgment.
   Even if you can identify a deep-pocket defendant liable for a tortious act, statutory thresholds may prevent a full recovery from a minimally at-fault defendant.

A plaintiff cannot recover more than the total judgment, and cannot recover twice. A settlement with other defendants may reduce the amount collectible from others through setoffs or credits. An experienced personal injury lawyer can help you make strategic decisions about whom to sue and settle with.

Contribution Among Defendants

A defendant who pays more than its fair share may seek reimbursement from co-defendants. This is called the right of contribution. This can occur in personal injury cases like car accidents, product liability matters, or medical malpractice.

Right of Contribution

Contribution differs from indemnity. With contribution, wrongdoers share the loss in proportion to their fault. Indemnity shifts the entire loss to another party, often based on a contract or an employer-employee relationship.

Settlement and Contribution

Many states protect settling defendants from later contribution claims. Non-settling defendants usually receive a credit for settlement amounts. Thus, if a plaintiff chooses to sue only one liable party, the paying defendant may have the right to seek contribution from all the other defendants. The specifics depend on state law.

Paying Defendants Bear the Burden

While defendants may dispute contribution amounts, those disputes do not delay or reduce the plaintiff’s recovery. The plaintiff does not bear the risk of a judgment-proof or insolvent co-defendant; the paying defendant does.

Speak with a Personal Injury Attorney

In personal injury cases involving multiple defendants, liability rules can directly affect both the size of a recovery and who pays. Consult an experienced personal injury attorney who can help with your case. They can identify all potentially responsible parties, assess collectability under the relevant law, and pursue the full compensation warranted in your personal injury case.