Oklahoma Supreme Court Revives Deep Pocket Rule for Many Negligence Cases that Accrued Between November 1, 2009 and November 1, 2011 | Franden | Farris | Quillin | Goodnight

When joint-and-several liability applies, each defendant is liable for the full amount of a plaintiff’s damages. By contrast, when liability is several only (and not joint), each defendant’s liability is limited to his or her percentage of fault. The distinction can make a tremendous difference when there are multiple tortfeasors, one or more of whom is insolvent. In the past decade, Oklahoma has shifted toward a negligence scheme favoring several liability. However, on June 4, 2013, the Oklahoma Supreme Court issued an opinion that revives the application of joint-and-several liability in many cases that accrued between November 1, 2009 and November 1, 2011.

In Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, the Oklahoma Supreme Court struck down the Comprehensive Lawsuit Reform Act of 2009 (CLRA) in its entirety. The CLRA amended Oklahoma’s statute governing joint-and-several liability in negligence cases—23 O.S. §15. Because the Douglas court held that the CLRA was void in its entirety, the 2009 amendments to 23 O.S. §15 will no longer apply. Thus, the Douglas decision will have an enormous impact on multiple-tortfeasor negligence cases that accrued between November 1, 2009 and November 1, 2011. In order to understand this impact, a brief history of 23 O.S. §15 is necessary.

In 2004, the Oklahoma Legislature enacted the first law to be codified at 23 O.S. §15. The 2004 version of §15 provides that in negligence actions, liability is several only (not joint and several). The 2004 version, however, contains four very significant exceptions, and provides that several liability does not apply: (1) to a defendant who is more than 50% at fault; (2) if any joint tortfeasor acted willfully, wantonly, or recklessly; (3) if the action is brought by the state or a political subdivision of the state; or (4) if no comparative negligence is attributable to the plaintiff.

In 2009, the CLRA amended 23 O.S. §15. The most significant change in the 2009 version was the removal of exception (4) from the 2004 version. For actions accruing after November 1, 2009, several liability applied even to cases where no comparative negligence was attributable to the plaintiff. The 2009 amendment also changed exception (2) to provide that joint and several liability would only apply to the particular tortfeasor who acted willfully, wantonly, or recklessly. Finally, it removed “political subdivisions of the state” from exception (3).

In 2011, the legislature once again amended 23 O.S. §15, this time adopting a scheme of (almost) pure several liability. The only exception to several liability remaining in the 2011 version applies to “actions brought by or on behalf of the state.” For all other cases accruing after November 1, 2011, a defendant is responsible only for his or her percentage of negligence.

For an illustration of the effects of Douglas on multiple-tortfeasor negligence cases accruing between November 1, 2009 and November 1, 2011, consider the following example:

On May 1, 2010, Driver and Passenger are traveling down Riverside Drive on a beautiful spring night in Tulsa. Driver looks down at his phone to read a text he just received from a friend. When he looks up, he discovers that he is quickly approaching a truck with one brake light out that is stopped at a red light. Driver slams on his brakes, but it’s too late—his car violently collides into the back of the stopped truck, which is being operated by Motorist. Driver and Motorist suffer only minor bumps and bruises in the collision. Unfortunately, Passenger is seriously injured in the wreck.

On April 30, 2012, Passenger brings suit against Motorist, alleging that Motorist negligently maintained his brake lights. At trial, the jury finds that Passenger has suffered $500,000 in damages, and apportions 99% of the fault to Driver for his inattentiveness, 1% of the fault to Motorist for his brake light being out, and 0% of the fault to Passenger.[1]

Before Douglas, the 2009 version of 23 O.S. §15 would have applied, because the action accrued between November 1, 2009 and November 1, 2011. (Note that the accrual date (i.e., when the accident happened) is the relevant date under §15, not the filing date). Under the 2009 version, none of the exceptions to several liability apply, and Motorist would only be responsible for his percentage of negligence—$5,000 (1% of $500,000). However, because Douglas struck down the 2009 version of 23 O.S. §15, the law reverts back to the 2004 version. Because no comparative negligence was attributed to Passenger, joint-and-several liability applies. Consequently, Motorist, who was found to be 1% at fault for the accident, is jointly and severally liable for 100% of Passenger’s damages. That means in addition to the $5,000 Motorist is obligated to pay, he must cover any portion of Passenger’s damages that Driver cannot. If Driver is uninsured and insolvent, Motorist is on the hook for the full $500,000.

The rule of joint-and-several liability is often referred to as the “deep pocket” rule, because plaintiffs sue wealthy defendants knowing that they will get fully compensated if they can convince the jury that the wealthy defendant is just 1% at fault. As long as no comparative negligence is attributed to the plaintiff, the deep-pocket rule is once again in effect for Oklahoma negligence cases that accrued between November 1, 2009 and November 1, 2011.

[1] Oklahoma Uniform Jury Instruction 9.15 provides that the negligence of a driver is generally not imputable to the passenger.