Action by lawmakers vital in order to reduce lawsuit payouts by state

Re: “State payouts up threefold under McKenna” (TNT, 12-7).

The Washington attorney general and the men and women of the Attorney General’s Office who defend the state in lawsuit deserve a more balanced telling of the story regarding lawsuit payouts than they received in this Associated Press article.

Washington state stands alone, among all other states, in terms of the amount it is willing to pay out in lawsuits. Two principal factors drive costs and invite litigation.

 • In 1961, our Legislature broadly eliminated immunity to lawsuits. Other states limit suits related to the risk-prone responsibilities of government, such as building and maintaining highways and supervising felons.

 • Under “joint and several liability” in Washington law, even if the state is just 1 percent at fault, it can be required to pay 100 percent of the damages.

The facts giving rise to lawsuit liability play out in thousands of daily interactions between state agencies and citizens. In any given year, the cumulative consequences of events that occurred in prior years, or a large number of catastrophic injury cases, can spike payouts. The number of injured plaintiffs, the nature of their injuries, medical costs, projected earning capacity and other factors dictate the amount of payouts – not clever trial tactics or asking juries to go easy on the state, as a source in the AP story seems to suggest.

State agencies cannot fix every snow- or rain-caused rut in a road as soon as it develops. They cannot monitor every activity of every released offender every minute of the day. And yet, under existing laws, these lapses can serve as the basis for virtually unlimited state liability.

For example, a woman convicted of forgery failed to check in with her parole officer. A warrant was issued, but she had not yet been located when tragedy occurred: As a passenger in her mom’s car, which had stopped for gas, the woman reached from the passenger seat to try to ease the car forward so others could get to the pump. The car lurched forward and killed someone. The duty to supervise, the waiver of immunity, and joint and several liability led to a substantial state payout.

In 2004, as a candidate for attorney general, Rob McKenna promised to reduce lawsuits by seeking reforms to state liability laws. If any significant savings are to be achieved, this is absolutely the right place to look, and McKenna has consistently done so. He has worked to inform legislators and has repeatedly invited the Legislature to revisit and reform state tort laws. Every major proposal, however, was killed in committee.

Neither McKenna nor any of our attorneys can control the facts or severity of cases they’re tasked with defending. They marshal the best legal defense possible and settle or try the case as they and the state agency client think best. In the past 10 years, 3,282 lawsuits against the state were resolved by this office. Of those, 52 percent resulted in zero payout and 41 percent were resolved for $250,000 or less. In 2011 alone, 68 percent resulted in no payout whatsoever.

We have very skilled and capable attorneys and staff, and we’re proud of the results we obtain on behalf of our state’s citizens. We take strong exception to any suggestion that mistakes or mismanagement on our part are to blame for any single year of high payouts.

Consistent, meaningful reductions in tort payouts will require legislative action to bring our state’s liability laws in line with other states. In the meantime, we will continue to do our job.

Rob Costello is a deputy attorney general and Howard Fischer is a senior assistant attorney general in the state Attorney General’s Office.