Business groups take aim at liability measure

A bill limiting liability in lawsuits, which appeared to be sailing though the legislative process, has suddenly run into a hornet’s nest of opposition from business groups.

House Bill 143 would, in essence, reverse state Supreme Court decisions allowing a jury to allocate damages, even involving those were not defendants in a lawsuit. Before the decisions, it would be up to the partially responsible defendants to pay the full freight, and try to recoup their losses by going after other responsible parties, who often have no insurance coverage or may be immune from direct lawsuits under various laws, such as that governing workers’ compensation.

Under the state Supreme Court ruling, says the New Hampshire Trial Lawyers Association, that burden has shifted to the plaintiff, who were not at fault at all, and stand the chance of ever being made whole.

“It (the court decision) changed the public policy from 100 years ago,” said Jennifer Farrell, executive director of the trial lawyers association. She said lawmakers should pass a bill reinstating that old public policy.

But the Business and Industry Association of New Hampshire is spearheading a coalition of business groups that don’t want to go back to the old days.

“It’s absurd,” said BIA Vice President David Juvet “The liability should be based on your responsibility, not on whether you have insurance, or whether you have stockholders or taxpayers to fall back on. It shouldn’t be the defendants’ job, but the plaintiffs’ job. They are the ones bringing the action.”

Both sides say that the other’s position would result in more litigation. The BIA said HB 143 would result in third-party suits that would make trial lawyers happy, since they can settle with or ignore those primarily responsible to go after those with the deep pockets.

But “that insinuates that defense costs went down after the recent decisions,” said Farrell.

In fact, she said, costs will continue to go up because plaintiffs will now routinely name all potentially responsible parties – whether they can pay or not, rather then settle with them.

“With more defendants, you have more legal costs,” she said.

A similar measure to reverse the 2003 decision failed two years ago in the Senate, but that was before a 2006 state Supreme Court decision clarified the new state of affairs, and before Democrats took control of the Legislature.

This session, the House Judiciary Committee passed HB 143 on Feb. 7, by a 17-1 vote. It was then put on the consent calendar for Wednesday – an action that likely means that the committee position will be approved without debate.

In reaction, the BIA hastily pulled together a press conference scheduled for today.

According to Juvet, among the organizations opposing the bill are the Retail Merchants Association, the Lodging and Restaurant Association, the Medical Society, the Hospital Association, the Bankers Association, the Portsmouth and Manchester chambers, the Municipal Association and several insurance companies (including Liberty and Acadia).

Juvet said he expects that on Wednesday, the bill will be pulled off the consent calendar, be debated on the House floor and will probably be decided on a roll-call vote. – BOB SANDERS