Originally published Tuesday, November 22, 2011 at 4:15 PM

Time to tighten rules over how much liability state has in legal cases

Washington state paid out $76 million to settle legal cases in 2011, among the highest in the nation. The state cannot shed its deep-pockets reputation without serious movement toward liability reform.

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THE Legislature's ongoing and necessary search for cost savings should extend to narrowing the state's supersized exposure to lawsuits. This year alone, the state paid $76 million to settle legal cases, a high-water mark backed by years of rising settlement costs.

In 2012, the figure is expected to jump to $150 million. Since 2000, taxpayers have paid out more than $459 million to settle lawsuits and related grievances, propelling the state in the top tier of states in terms of cash settlements. We spend between four and 12 times as much as comparably sized states, including Massachusetts, Arizona and Tennessee.

The trend underscores the need to reform a legal system that is sometimes too quick to settle and more generous than it should be.

This is not a call for complete sovereign immunity. To its credit, Washington was the second state in the nation to shed a unilateral cloak of legal protection. When negligence or mistakes harm the public, the state should be held accountable.

Three state agencies are responsible for the bulk of the lawsuit costs: the Department of Corrections, Department of Transportation and the Department of Social and Health Services. Most of the cases involve a third party — for example, an accident on a highway maintained by the state, or when a foster-care parent or a corrections employee is involved. Lessons learned from mistakes could cut down on the number of lawsuits.

Attorney General Rob McKenna notes that his office ends 68 percent of claims against the state without paying out a dime. That's great, but the dimes paid out add up tremendously.

Lawmakers can start by tightening rules that allow the state to be brought into a case as a co-defendant so the state doesn't have more exposure than private entities. While many states have adopted a proportionality rule when it comes to blame, in Washington the state can be held responsible for 100 percent of the lawsuit payout even if it is only 5 percent at fault.

Reform work starts with clearer definitions of where the state's responsibility begins and ends.

This is a complex issue. Analysis of the state's legal exposure should include tough questions about why our payouts are among the highest in the nation.

Rep. Deb Eddy, D-Kirkland, and Rep. Reuven Carlyle, D-Seattle, have tackled aspects of the problem. Eddy has called for clearer definitions of the state's liability in areas of child safety and corrections. Carlyle proposes eliminating attorney fees in employment litigation, fees that have served as a perverse incentive to draw out legal proceedings.

Gov. Chris Gregoire and state lawmakers should develop guidelines for liability reform that better protects taxpayers paying the bills.


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