|
Three years ago, no
one believed that meaningful tort reform was possible in South
Carolina. Yet, on March 21, Governor Sanford signed
H.3008
into law. What changed the environment to win reform in South
Carolina?
First, South
Carolinians for Tort Reform (SCTR) spent two and a half
years pushing the tort reform issue learning from our mistakes
and fine-tuning our message. We narrowed the tort reform issues
from 14 to 4 that focused on the issues that were giving South
Carolina a “black eye” on the national scene. For example,
Hampton County, South Carolina was rated the third worst
Judicial Hellhole
by the American Tort Reform Foundation; South Carolina was one
of only ten states not to have modified their joint and several
liability doctrine. Only two insurance companies were writing
general liability insurance for homebuilders in our state due in
part because of South Carolina’s 13 year statute of repose.
In addition,
coordinating with the South Carolina Medical Association, we
made a strategic decision to separate the medical malpractice
issue from the general tort reform issue. This proved to be
sound strategy with both bills passing this year. SCTR elected
to use a strategy of “targeted media management” instead of the
shotgun blast approach in order to get our message across to the
public.
Second, the business
community provided key leadership with CEOs and small business
owners taking an active role in the legislative process. Our
coalition represented every major business and professional
association and most of the Fortune 500 companies with a
significant presence in South Carolina.
Third, Governor Mark
Sanford listened to the business community’s concerns about our
outdated legal system and made tort reform one of the major
issues in his “Contract for Change”.
Fourth, the House and
Senate leadership supported tort reform -- including House
Speaker David Wilkins,
 |
|
House Speaker
David Wilkins |
Senate
President Pro Tem and Judiciary Committee Chairman Glenn
McConnell, Senate Majority Leader Hugh Leatherman, Senate Tort
Reform Sub Committee Chairman Larry Martin, Senate Majority Whip
Jim Ritchie, and House Labor, Commerce, and Industry Committee
Chairman Harry Cato – the primary sponsor of the “black eye”
bill.
Fifth, the support
given to South Carolinians for Tort Reform by our national tort
reform allies, such as the American Justice Partnership
and the
American
Tort Reform Association who provided significant
financial, strategic and technical support to our tort reform
efforts, made a critical difference.
Sixth, tort reform
successes in
Mississippi and
Georgia
challenged South Carolina to pass meaningful reform or risk
having our state economy become less competitive with others in
our region.
Lastly, major media
outlets supported our “black eye” bill and wrote strong
editorials endorsing our legislation.
There were two
defining moments in the tort reform fight in the South Carolina
General Assembly. The first, after losing a vote on abolishing
joint and several liability 22 to 23, a filibuster ensued with
various attempts to work out a compromise by Senate leadership
without any success. Going into the third week of debate, Senate
Leadership gave us one last shot to get the necessary votes to
end the filibuster. The coalition energized and made a call to
arms to its allies. In response, Governor Mark Sanford had a
fly-around press conference in selected senate districts,
followed by recorded phone messages from the Governor to the
voters in those targeted senate districts, and SCTR ran ads
educating the public on how these “pro business” senators voted
on tort reform.
Attorney General
Henry McMaster sent a letter to the Senate endorsing the
abolishment of joint and several liability. Next, SCTR had a
group of influential business leaders meet with the Senate
Republican and Democratic leadership before the start of session
to encourage them to pass meaningful tort reform to improve the
business climate in South Carolina. In addition, several strong
editorials ran in major metro newspapers calling for passage of
tort reform after the Governor’s press conferences. Finally, our
grassroots allies flooded the Senate with emails and telephone
calls.
 |
|
Attorney General Henry McMaster |
The Senate Republican
and Democrat leadership finally reached a bi-partisan deal on
joint and several liability establishing a 50% threshold before
the “deep pocket” could be held liable for the entire amount of
the award ending the filibuster.
Previously, the House
passed a tort reform bill that had an “empty chair defense”
loophole in the joint and several liability section. The Senate
version corrected the loophole. So the second big test of the
coalition was underway when the legislation headed back to the
House. Tort reform opponents wanted to “non concur” with the
legislation and send it to conference committee in an attempt to
either weaken the bill or kill it. Instead of risking a
conference committee, the coalition made the decision to ask the
House to concur with the Senate version of tort reform,
something easier said than done. SCTR arranged to have a letter
placed on the floor desk of every House member saying that the
business community considered the vote to concur as “the vote”
on tort reform. In addition, we had another influential group of
business leaders meet with the House leadership to explain the
need for meaningful tort reform in keeping South Carolina
competitive and business friendly.
Speaker David Wilkins
rose to the occasion and led the fight against the trial lawyer
led filibuster that included 8200 amendments to our tort reform
bill. Yes, 8200 amendments were drafted in an attempt to kill
tort reform! In the end, the House Republican and Democrat
leadership worked out some technical issues using another bill
and the House voted to concur in the Senate version of tort
reform which included: A joint and several liability threshold
of 50%; venue reform; reduction of the statute of repose from 13
to 8 years; frivolous lawsuit sanctions; changing of the post
judgment interest rate from 12% to prime plus 4%; and a ban on
certain types of lawyer advertisements.
None of this would be
possible without a unified business coalition, good strategic
planning, the leadership of the House and Senate and Governor
Sanford, the tort reform success of other Southeastern states,
and the determined support of our allies such as the American
Justice Partnership.
|
