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Originally published October 28, 2012 at 4:01 PM | Page modified October 29, 2012 at 4:24 PM

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Corrected version

Editorial: Inslee’s criticism of McKenna points up need for tort reform

It was unfair for Jay Inslee to criticize Rob McKenna for paying out too much taxpayer money in tort claims, because Inslee’s own party has blocked tort reform.

Seattle Times Editorial

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Jay Inslee was being disingenuous when he slammed Rob McKenna in their last gubernatorial debate for paying out millions of dollars to people who sue the state of Washington.

The fault is with the state law, and it is Inslee’s party, the Democrats, that has blocked reform that would reduce the state’s liability.

The problem is twofold. Because of court rulings that date to the 1970s, it is easier in Washington than in most other states for injured parties to dip into the state’s pockets. And under the doctrine of joint and several liability, the state can be made to pay 100 percent of damages even if it is only 1 percent at fault. Together, these create an incentive for trial lawyers to name the state as a defendant even when it is not much at fault.

Here is an example cited by McKenna, a Republican who has been the state’s attorney general for almost eight years: A woman was caught forging a check, sentenced, released and didn’t show up for an appointment with a parole officer. A warrant was issued for her arrest. Then she struck a pedestrian with her car. The pedestrian sued her and named the state as a defendant on the theory that its agents should have arrested her sooner.

In these sorts of cases, the state urges the judge to let it off the hook, and most often the judge does. But not in this case. “We ended up settling for $300,000,” McKenna said, though “the state didn’t do anything wrong.”

Since 2008 the state has paid out $113.5 million in lawsuits filed against the Department of Social and Health Services, the agency that oversees care for foster children, the elderly and people with disabilities. Typically, a vulnerable person comes to harm, perhaps in the care of a foster parent or a group home under state contract. The fault may be mainly with the foster parent or the home, but the state has the deep pockets. There is a lawsuit, the state is named as a defendant, and the plaintiff collects the full amount from the taxpayers.

Another sore spot is the Department of Transportation, which has paid out $68 million in the past four years. Some of the most egregious cases involved passengers injured in car accidents that were mostly the driver’s fault, but because they successfully argued that the state was at least 1 percent at fault, the state was liable to pay all the damages.

Because of state laws, McKenna says Washington typically has to pay out several times more than other states of similar size, such as Massachusetts. He has asked the Legislature for liability laws similar to those other states have, but to no avail. The trial lawyers don’t want to limit liability, and they are major donors to Democrats, who have majorities in both houses.

It is disingenuous for Inslee to hammer McKenna for paying out taxpayer money on tort claims. The state has had to pay because there has been no reform, because it has been blocked by Inslee’s own party.

This editorial’s original headline erroneously referred to an advertisement. Also, the editorial has been changed to clarify that the state can be made to pay for more than its share of a tort claim only when a victim does not share any blame.

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