Wisconsin Dodges Liability Bullet – For Now
By David Bretting, President and CEO, C.G. Bretting Manufacturing Co., Inc.

ASHLAND -- Wisconsin employers and workers dodged a bullet in June when the Legislature rejected Governor Jim Doyle’s plan to expand Wisconsin’s liability laws well beyond those in any neighboring state.

It took Republicans and Democrats working together to defeat the proposal that would force people who are as little as 1 percent responsible to pay 100 percent of the bill in case of an accident or a product liability claim. The proposal — joint and several liability — is a problem in search of a solution and would devastate our business climate.

Unfortunately, rumors are that personal injury lawyers will continue pressuring lawmakers to return to broad joint and several liability after 14 years of bi-partisan support for a system that requires a defendant to be at least 51 percent at fault to pay a full claim. And it is a system that was established by our duly elected Legislature.

With our state’s economy struggling, one of the last things employers need is an expansion of liability, especially in the area of product liability. It was ironic that just days after the liability expansion was deleted from the state budget, the Wisconsin Department of Workforce Development announced that Wisconsin had the single biggest job loss since statehood.

In the last 12 months, Wisconsin lost 133,800 jobs, DWD reported. Of those, 61,500 were in the high-wage, high-benefit manufacturing sector that sustains our middle class communities. And even more disturbing, is Wisconsin’s manufacturing sector has shed 159,900 manufacturing jobs since 1998, which means our quality of life is in decline as our communities have fewer family-supporting wage earners.

To add joint-and-several liability to the challenges facing our struggling manufacturing sector would make it more difficult to retain and attract manufacturing jobs. Clearly if someone is injured they have a right to remedy, but joint and several liability goes too far and would lead to lawsuit abuse.

At C.G. Bretting Manufacturing, Co., Inc., our company has been around since 1890, just 42 years after statehood. We’ve never seen such rapid job loss in Wisconsin — the state we call home. We employ more than 400 people in Wisconsin, and we hope to be here for another four generations.

Our company is here because my great-grandfather C.G. Bretting established operations in Wisconsin. But most modern manufacturers are looking to operate plants in states where talent is plentiful, taxes are modest, regulation is reasonable, and the litigation climate is fair. If Wisconsin switches to broad joint and several liability, it will make it easier to woo jobs from our state and harder to bring jobs here.

Under longstanding law, a plaintiff’s negligence is compared to that of all defendants in a liability suit. A plaintiff cannot collect damages from any defendant whose negligence is less than that of the plaintiff. In many states the plaintiff may collect from any defendant whose negligence is greater than that of the plaintiff’s, proportional to the liability of each defendant.

However, until 1995 Wisconsin judges imposed a joint and several liability rule permitting a plaintiff to collect all of their damages from a defendant who was found as little as one percent at fault, if that defendant was the only one with financial resources (the “deep pocket”).

The scenario where a defendant was found to be one percent at fault, but then held jointly and severally liable for all of the damages happened repeatedly in Wisconsin.

In 1995, a bipartisan group of Wisconsin legislators introduced Senate Bill 11, permitting a plaintiff to collect all of their damages for an injury from one of several defendants, only if that defendant’s liability for the injury is 51 percent or greater. That is the law in Wisconsin today — a balanced middle ground. It is also consistent with the law in Iowa, Minnesota, and Ohio.

Michigan and Indiana never apply joint and several liability so defendants are only responsible for their actual degree of fault. No defendant is ever a deep pocket in Michigan or Indiana.

In 1995, Senate Bill 11 went through the regular legislative process of public hearings in both legislative chambers, by the Senate and Assembly Judiciary Committees. The bill was approved on a bipartisan vote of 24-8 in the State Senate and 69-27 in the State Assembly. Governor Tommy G. Thompson signed the measure into law as 1995 Act 17.

We need to maintain that delicate bi-partisan balance in our legal system to send a message to employers that Wisconsin is a great place to do business. To go back to joint and several liability would be a step backward at a time when we should be looking to move Wisconsin forward.

###

David Bretting is president and CEO of C.G. Bretting Manufacturing, Co., Inc. of Ashland. Bretting manufactures custom machinery for the paper industry.

Posted: October 13, 2009