By Rob McKenna, Special to The Seattle Times
LAWMAKERS must fill another multibillion-dollar budget deficit when they return to Olympia. Gov. Chris Gregoire is collecting public input on how to reduce state spending at hearings and on a new Web site. In that spirit, I again suggest reforms to save the state millions of dollars — without cutting education or health-care services — by changing our laws to reduce the disproportionate number of lawsuits against the state.
The state is sued even when it follows all the rules. For example, a woman is convicted of forging a $13 check. She's released after serving her sentence and carefully supervised by the Department of Corrections. But when she causes a fatal car accident, the state is sued and ultimately forced to settle the case for $300,000. While our hearts go out to the family who lost their loved one, the check forger caused the accident. State employees followed proper procedures. Yet lawsuits like these persist.
Washington is in a class by itself — wide open to lawsuits with huge payouts. Suits demanding outrageous sums have become commonplace over the past few decades. Payouts have grown from $241,000 in the 1963-65 budget to more than $100 million during the last — and trial attorneys collect $30 million of that before sending the rest to those who have suffered.
Those attorneys argue that reforming our system is an attempt by the state to avoid responsibility for its actions. But multimillion-dollar judgments and settlements with the state rarely involve direct harm by a state employee. Instead, they almost always involve a third party who caused a terrible injury — and who has some tangential connection to state government such as being on community supervision for a check forgery. That's all it takes for taxpayers to be on the hook for 100 percent of the damages.
Calls to attorneys general offices in other states reveal we pay much more than states with similar-sized populations: eight times more than Tennessee, five times more than Arizona and at least three times more than Massachusetts. These disparities date back at least 15 years.
Washington taxpayers are uniquely vulnerable because in 1961, the Legislature eliminated the state's "sovereign immunity" shield from lawsuits. Unlike other states, though, Washington didn't establish legal boundaries defining when such lawsuits can be filed and how much can be recovered. In the absence of legislative limits, court decisions have steadily expanded the state's financial liability.
Like other states, Washington needs basic guidelines about when it can be sued and how much it will pay. For example, the state designs and builds highways. But should taxpayers be exposed to unlimited liability when there's an accident — even when it's been found to be caused mostly by a driver's negligence?
Perhaps most outrageous, current law requires that — even in situations where a court finds the state only 1 percent at fault for an injury — it can hold the state 100 percent responsible for monetary damages.
In one case, a speeding Corvette lost control, crashing and seriously injuring the passenger. Driver negligence was to blame, but minor questions about the freeway's design exposed the state to paying potentially all the damages. A settlement of $4.4 million was considered the least expensive outcome. The law should be revised so that the state's share of a payout is proportionate to its share of responsibility for the harm.
Why are our state laws so much more permissive than every other state's liability rules? The uncomfortable truth is that personal-injury lawyers are among the wealthiest and most powerful interest groups, and they vigorously oppose attempts to end Washington's outlier status.
According to the Liability Reform Coalition, political-action committees run by trial attorneys contributed more than $1.4 million in the 2008 statewide election cycle. Trial lawyers chipped in millions more in individual contributions. That helps explain why during nearly every legislative session, legislators vote on bills that would actually increase, not reduce, taxpayers' liability; 2010 was no exception.
While we'll all agree anyone directly harmed by a government employee should receive just compensation, legislators from both political parties must come together to reduce government expenses — and limiting costs associated with abusive lawsuits must be part of the solution.
Rob McKenna is Washington state's attorney general.