NFIB State Director Ben Homeyer today sent a letter to the chairman of the House Judiciary Committee urging members to vote “yes” on H.3758, also known as the Fair Share Bill. The committee is scheduled to hear the bill on Thursday.
If passed and signed into law, the measure would repair a flaw in state law concerning how damages are determined in civil cases.
In his letter, Homeyer writes that H.3758 will correct the unintended consequences of 2005 legislation that has caused a sharp increase in lawsuits against small businesses, even in cases where the business shares little of the blame.
“Plaintiffs are suing defendants with the deepest pockets for 100% of a claim,” Homeyer writes. “This was never the intent of the General Assembly.”
H.3758 “fixes this injustice and will apportion fault to all parties and ensure that a party with less than 50% of fault will not be forced to pay 100% of damages,” Homeyer writes.
Here is the full content of Homeyer’s letter to the committee chairman, Rep. Peter McCoy:
The National Federation of Independent Business (NFIB) is seeking your support for H.3758 (The Fair Share Bill) and respectfully requests a hearing in the House Judiciary Committee and getting this legislation on the House floor for a vote.
In a majority ruling in 2017, the South Carolina Supreme Court interpreted the language in the 2005 “Modified Joint and Several” compromise legislation in a manner different than what the compromising parties intended. As I’m sure you recall the compromise intended that after apportionment of damages, a party found to be less than 50% at fault would only be responsible for their fair share.
However, the Court found the General Assembly alone has the authority to draft the law. The ruling stated that “in honoring separation of powers, [the Court] adhere[s] to the principle that a court must not reject the legislature’s policy determinations merely because the court may prefer what it believes is a more equitable result.”
The result is plaintiffs are suing defendants with the deepest pockets for 100% of a claim minus any settlement amounts, which is unfairly increasing the legal burden on all businesses, large and small, and the insurance companies that insure them. This is happening without regard to whether the business was 90% at fault or 5% at fault. We believe this was never the intent of the General Assembly, and it was never the intent of the 2005 agreement that allowed this legislation to move forward. By reversing the intent of the legislation, our State has taken a great leap backward in judicial fairness. As we scrap and fight for new, higher-paying jobs against other states, being one of only a few states that doesn’t fairly apportion fault will be a significant challenge for economic development. For example, Georgia, a state referenced in the Supreme Court decision, apportions fault to all parties, and the parties only pay their fair share.
Chairman Hiott’s Fair Share Bill (H.3758) fixes this injustice and will apportion fault to all parties and ensure a party with less than 50% of fault will not be forced to pay 100% of damages. However, a party found to be more than 50% at fault will still be liable to pay more than their fair share. Furthermore, it does not increase the liability of an immune party or a party the plaintiff settles with before the trial.
Regards,
Benjamin Homeyer
State Director
NFIB/SC
