Following several weeks of debate and late night negotiations, the state Senate has passed what some senators called among the most contentious pieces of legislation of their careers, a bill with potential implications for a wide range of businesses.
Because the bill could impact bars and restaurants, construction companies, doctors, lawyers and others, it was a lightning rod for divisions in the Senate, where 20 of the body’s 46 members are attorneys with allegiances split between plaintiff and defense lawyers.
Senators were targeted in social media campaigns and exchanged pointed words in long debates on the Senate floor.
“This is World War One trench warfare,” said Sen. Chip Campsen, R-Charleston, himself an attorney, during debate on the bill Wednesday.
The bill, S. 244, passed its crucial second reading by a roll call vote of 35 to 7 after 10 p.m. Wednesday following weeks of debate and contentious amendments. This was followed by a brief third reading Thursday where the bill passed and was referred to the House of Representatives.
The legislation, touted as tort reform, has gained public awareness in part because of the widespread closure of bars in South Carolina due to skyrocketing insurance premiums, which were widely blamed on South Carolina’s civil justice system.
In particular, supporters of tort reform pointed to flaws in a South Carolina law, known as joint and several liability. Critics said that too often meant defendants who juries agreed were only partly responsible for harm could end up on the hook for astronomical sums of money.
The bill should lower individual South Carolinian’s auto insurance rates, reduce premiums for establishments serving liquor and provide less risk for businesses of all sizes, said Senate President Shane Massey, R-Edgefield, a lawyer who has represented insurance companies and was the driving force behind tort reform.
“I do think that what we have in the end is a real win for citizens. It’s a real win for business and industry in South Carolina, and at the same time, it balances to ensure that we protect innocent victims who are harmed. That was, ultimately, the goal,” said Massey.
The last time the state Senate undertook tort reform was in 2005. But in doing so, those senators created a set of laws that appeared to be at cross-purposes.
The existing law was written to ensure that victims could recover the full value of their damages from any of the defendants found at least 50% liable. But to be fair to defendants, the law says they can argue that someone who is not a party to the case is more responsible for the victim’s injuries or damages. Even if jurors buy that, they still must assign 100% of the damages to defendants who are named in the case.
As a result, a defendant who the jury decides played a minimal role in a traffic wreck or other mishap could still be forced to pay the bulk of any money awarded by a jury.
Supporters of tort reform say that shrewd plaintiff’s attorneys would strategically target defendants with deep pockets or insurance policies on cases while settling with other parties in order to maximize how much they could collect. The effect was to raise the cost of insurance across the state and increase uncertainty for businesses. Opponents of tort reform argued that changes to the law were a handout to insurers and big companies.
“I just think from a matter of principle, you should never have to pay for damages that I cause. I should never have to pay for damages that you cause. I think it’s as simple as that really,” Massey said Wednesday, a position he repeatedly stated throughout the debate. “I wasn’t going to win that outright.”
Under the compromise hashed out Wednesday night during a 2.5-hour recess while legislators dined on Chick-fil-A takeout, damages would now be assigned proportionally unless a business is mostly at fault.
A defendant found to be 10% responsible would only have to pay 10% of the total damages awarded by the jury. But if that defendant was found to be more than 50% responsible, they could be held responsible for paying the full amount of “economic damages,” which include medical expenses and lost wages. So-called “non-economic damages,” awarded for emotional damage and punitive damages designed to punish the defendant, would still be split up proportionally.
“I’m not sure compromise is the best word. It is an understanding,” said Sen. Mike Johnson, R-York, an attorney. “This is what we believe is the best result.”
The “policy decision” at the heart of the deal was to make the plaintiff whole, Johnson said.
The bill also included a number of carve outs. Among them was a condition that the new rules not apply to legislation concerning polyfluoroalkyl substances, also known as PFAS or “forever chemicals,” so long as those lawsuits are filed before the law goes into effect.
But the compromise did not sway everyone.
Sen. Tameika Isaac Devine, also an attorney, said that she voted against the bill over concerns that it would limit recovery for victims and that it was upending the state’s legal system with no guarantee that it lower insurance premiums.
“We had no data from insurance companies that these changes would make premiums go down,” said Devine, a Richland County Democrat. “I really feel like we were fixing a solution or trying to fix something that really wasn’t a problem.”
No representatives from insurance companies testified on the bill when it was in the subcommittee.
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Ted Clifford is the statewide accountability reporter at The State Newspaper. Formerly the crime and courts reporter, he has covered the Murdaugh saga, state and federal court, as well as criminal justice and public safety in the Midlands and across South Carolina. He is the recipient of the 2023 award for best beat reporting by the South Carolina Press Association.