Facts: Insured, structural engineer, designed a 2 story deck for a 3 unit condo complex. While standing on the deck, the railing came off and plaintiff fell 30 feet to the street making him paraplegic (he was intoxicated at the time of the incident). Claimed damages $37 million for future lost wages, pain and suffering, and medical expenses.
Claim against the insured: Unsafe design, details of connections or hardware were inappropriate or missing, didn’t do proper calculations for load and left it to the contractor to interpret, and insured improperly signed off on the drawings. The expert hired by the HOA criticized the insured’s design because it did not call for fasteners and the railing was only nailed in. The plaintiff’s expert took the position that it was within the structural engineer’s standard of care to make sure the plans are actually followed.
Defenses raised: Contractor did not build what was designed, in fact he did his own design/build of the deck. The HOA did not maintain the decks correctly (dry rot, paint, etc.) Motion for summary judgment to dismiss the case was filed, but denied because the court found that there was a triable issue of fact.
Liability concerns: Large damages alleged. Low liability case, but with high damage exposure. Joint and several liability concerns.
Policy Limit: $1 million per claim, $12,500 deductible.
Resolution: Global settlement $5,510,000. Insured contributed $650,000. Defense costs $200,000.
Joint and several liability:
A claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. Plaintiff may recover all the damages from any defendant(s) regardless of their individual share of liability.
* In the US, 46 out of the 50 have a rule of joint and several liability, but some follow a modified version. It is important to look at each individual state’s statutory authority for its application.
Pure joint and several: AL, DE, MD, MA, NC, RI, SC, VA
Modified joint and several: CA, CO, HI, ID, IL, IA, LA, ME, MN, MI, MT, NE, NV, NJ, NM, NY, ND, OH, OK, OR
Pure several liability: AL, AZ, AR, CT, FL, GA, IN, KS, KT, TN, UT, VT, WY
Economic damages = verifiable monetary losses including medical expenses, loss of use, cost of repair or replacement etc.
Non-economic damages = non-monetary losses, including pain, suffering, emotional distress, loss of consortium etc.