After a multi-year respite with a Republican in the State House, lobbyists and legislators are reassembling their forces for a battle over comparative fault in tort litigation.

Del. Luiz R. S. Simmons, D-Montgomery, introduced a bill in the General Assembly on Wednesday that would permit partial damages for plaintiffs whose own negligence contributed to their injuries.

Despite the break, it’s an issue that has come before the legislature many times, Simmons noted.

“It’s part of this eternal tug of war between trial lawyers and the business community,” he said.

A lawyer himself, Simmons and like-minded supporters claim House Bill 110 is a matter of fairness. Rather than keep Maryland in the minority of states with an “all-or-nothing” contributory negligence standard, it would give plaintiffs just compensation for harm against them, they say.

But the business community and other tort reform backers fear such a change will result in more lawsuits and drive up insurance rates in the state.

The Maryland Trial Lawyers Association has led the lobbying effort to change the doctrine, but has long been stymied by Republicans, conservative Democrats and strong business interests. A bill wasn’t even introduced in the last four years because everybody knew Gov. Robert L. Ehrlich Jr. wouldn’t sign it.

Now with a Democrat back in the governor’s office and an arguably more left-leaning General Assembly, the trial lawyers are trying again.

Reform is “long overdue and there’s no credible argument against comparative negligence,” said Bruce Plaxen, chairman of the association’s political action committee. “It’s generally accepted as a fair system.”

Even more, changes would benefit the state since more lawsuits would likely settle before going to trial, he said.

Paul Tiburzi, counsel to the Maryland Tort Reform Coalition, dismissed those arguments as baseless.

“Maryland’s civil liability system has a good balance today and adopting comparative fault would destroy that balance for no good reason,” he said. The coalition is made up of Maryland “blue-chip” employers such as The Johns Hopkins Institutions, Legg Mason Inc. and Constellation Energy Group Inc.

Opponents of the bill include the state and local governments, which often use the contributory negligence doctrine to protect themselves, Tiburzi added.

Trade-offs

As the law is now written, even if a jury finds a defendant guilty of a tort such as negligence, the plaintiff won’t get a dime if the plaintiff’s own negligence contributed to the harm. The doctrine is only applied in Maryland, Washington, D.C., Virginia, North Carolina and Alabama.

Most other states apply the comparative fault standard, which asks jurors to determine what percentage of fault can be attributed to the plaintiff. The damages award is then reduced by that percentage.

“I’m never consoled by the idea that because other states do something, Maryland has to do as well,” said Todd Lamb, executive director of Maryland Citizens Against Lawsuit Abuse. The organization opposes a change to the law as it could lead to more frivolous lawsuits.

“That would be an argument promoted by trial attorneys, but they’re self-serving since they helped to create those laws” in other states, he said.

Although the lines are being drawn, much of what goes on this year will likely amount to animated debate that could set the stage for passage in future years, Simmons noted.

“A bill like this, which brings about a significant change in the jurisprudence of the state, I think needs to have the support of the governor, and the governor seems to be proceeding very slowly and deliberately,” he said. “It doesn’t seem like this is going to be an issue right now that is uppermost in his mind.”

Regardless, one can never predict how a bill will fare, he added.

Simmons noted that opponents of the bill will try to link the debate with an elimination of joint and several liability, under which any defendant who is found liable can be forced to pay the entire judgment.

David Bilden, executive director of the Maryland Association of Counties, agreed that the trade-off is “what’s always missing in the debate.”

“If we will permit a plaintiff who’s partially negligent to recover damages, and apportion the damages,” he said, “it equally makes sense to limit the defendants’ liability in multiple defendant litigations to the extent that that defendant contributed to the damage and no more.”