Attorney General Rob McKenna says Washington taxpayers pay too much for the negligent acts of their government, and he's drawing up proposals for the 2011 Legislature that might lower future costs.
Washington paid more than $50 million in judgments and legal settlements in 2009 and that cost is four to 12 times higher than comparably sized states such as Massachusetts, Arizona, Tennessee and Indiana, according to McKenna, a second-term Republican.
McKenna said the state spent another $19 million in legal costs fighting the suits, money he’d rather see spent on needed programs.
“Our liability ought to be in line with other states. Even if we adopted a system like Massachusetts has or Oregon has, we’d be better off,’’ McKenna told The Olympian’s editorial board Monday. Those two states have some limits on liability payouts.
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McKenna won’t be alone in looking for ways to change the system in January – whether it’s to limit state damages, limit acts for which the state is liable or to tie the state’s share of payouts to the state’s share of blame.
Democratic Rep. Deb Eddy, a Kirkland lawyer, is looking into ways to clarify work standards for Child Protective Services and the Department of Corrections. And she wants to look at the larger question of how much immunity to lawsuits the state should be waiving. Most states have waived some of their so-called “sovereign immunity” to claims, and Washington was the second to do it in the 1960s – doing so more broadly than other states, according to McKenna and Eddy.
“Washington is a real outlier. It just gave it up and didn’t necessarily put any original sideboards on it,’’ Eddy said of the 1961 immunity waiver. She said a lot is at stake, not just for the state, but also cities and counties.
Past efforts to limit the state’s liability have run headlong into the state’s trial lawyer lobby. It contends that the broad liability laws are needed to make people whole when they are injured by state negligence or when some culpable parties are bankrupt.
Adrianne Williams, spokeswoman for the Washington State Association for Justice in Olympia, said the trial lawyers also believe it is better to focus on preventing injuries and deaths, rather than complaining after the fact.
McKenna said he agrees that the state should pay for damages when it is negligent and harms the public. But he also thinks the state unfairly pays out too much in cases where it’s partly to blame and simply is the party with deep financial pockets.
McKenna has had good luck passing legislation in the Democrat-controlled House and Senate, and he said he is hopeful again in 2011. But he could encounter a fight – since it is widely speculated he will announce his bid for governor next year, and some Democrats won’t want to give him bragging rights.
McKenna said he knows he’ll have to announce his campaign plans in 2011 but won’t do it until after the legislative session. He did not rule out running for the U.S. Senate, but said he is less focused on that than on a third term as attorney general, or seeking the governorship.
He acknowledged that Gov. Chris Gregoire has opposed tort changes.
Even so, he’s offered half a dozen ideas to Eddy and Democratic Rep. Ruth Kagi of Lake Forest Park. Among them are limits on damage payments and apportioning costs of a judgment according to a party’s share of blame. Another is to change the law so defendants in personal injury cases involving car wrecks can introduce evidence that a plaintiff did not wear seat belts.
Eddy said she thinks the time is right to broaden the discussion. She said she wants to avoid the Republican-vs.-Democrat fights she has seen over liability issues in the past and to find an area where reformers and trial lawyers can find comfort.
One idea she’s exploring is to better define where the state really is liable for child-safety and Department of Corrections errors, in effect defining a “standard of care” that could help clarify duties for state workers.
Another is a sort of no-fault fund that could be used to help those who are damaged in child-protection cases.
“As a matter of public policy it does not always have to happen by a lawsuit,’’ Eddy said. “It’s not that I’m not sympathetic to the concept of justice and the concept of access to justice for everybody. The question is, how do you deliver it? We may finally be at a point where we can at least have a conversation where we can have alternative ways that cost less money.’’
Like Eddy, McKenna said he wants to save state resources for programs worth saving. He said the state had to share in a $30 million payout in a case where a motorist was left paralyzed when another vehicle rear-ended his in a construction zone along Interstate 5 in Seattle. A traffic-flow meter had stopped the first vehicle, and both the contractor and second motorist were sued.
The insurer wanted to go to trial, and the state ended up paying a share of damages. McKenna said the theory was that the state shared blame because a nearby overpass cast a shadow over the accident area.
Brad Shannon: 360-753-1688 firstname.lastname@example.org www.theolympian.com/politicsblog