Michael Stevens and the Kentucky Law Blog recently reported on Senate Bill 210 which would: "Create a new section of KRS Chapter 411 to allow a plaintiff in a civil action where comparative fault becomes an issue, where suit was initiated against the original defendant within the statute of limitations, where the original defendant alleges that a third party caused or contributed to the plaintiff's injury, and where the plaintiff would be barred by a statute of limitations from bringing a claim against that third party to either amend the complaint pursuant to Rule 15 of the Kentucky Rules of Civil Procedure or institute a separate action within ninety days of the filing of the first answer or amended answer alleging such third party's fault; establish that the new cause of action is not barred by any statute of limitations." This bill recently passed the Senate 38-0 on March 8, 2006.
Comment: This bill appears designed to correct what is perceived as an injustice to plaintiffs, which results when a defendant is added after the statute of limitation has passed. This position fails to consider that the timing of the complaint is the number one factor in whether the statute of limitation is even implicated. The timing is controlled by the plaintiff. The plaintiff also controls the parties who are named as defendants. Any problems that arise for the failure to properly investigate the claim and name all potential defendants should fall on the plaintiff. This bill is called "the lazy plaintiff bill" around the office, because it takes away any incentive the plaintiff had to identify all the defendants in the beginning.
Although it may be a defense strategy to name additional defendants for apportionment purposes, doing so after the statute of limitations is not typically a consideration. In fact, experience dictates that defendants would rather the additional defendant be liable to the plaintiff to increase the likelihood that the defendant will contribute to any proposed settlement. What this bill does is place a burden on a defendant who may not be sued until years after the cause of action accrues but will still be liable to the plaintiff. It does away with the entire purpose of statutes of limitation in the first place.
Comment: This bill appears designed to correct what is perceived as an injustice to plaintiffs, which results when a defendant is added after the statute of limitation has passed. This position fails to consider that the timing of the complaint is the number one factor in whether the statute of limitation is even implicated. The timing is controlled by the plaintiff. The plaintiff also controls the parties who are named as defendants. Any problems that arise for the failure to properly investigate the claim and name all potential defendants should fall on the plaintiff. This bill is called "the lazy plaintiff bill" around the office, because it takes away any incentive the plaintiff had to identify all the defendants in the beginning.
Although it may be a defense strategy to name additional defendants for apportionment purposes, doing so after the statute of limitations is not typically a consideration. In fact, experience dictates that defendants would rather the additional defendant be liable to the plaintiff to increase the likelihood that the defendant will contribute to any proposed settlement. What this bill does is place a burden on a defendant who may not be sued until years after the cause of action accrues but will still be liable to the plaintiff. It does away with the entire purpose of statutes of limitation in the first place.
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UPDATE: This bill was referred to the House Judiciary Committee on March 13, 2006. Several amendments have been attached, including those favorable to "tort reform." These include setting maximum fees recoverable in negligence cases, allowing recoverable court costs to a party found not at fault, and a constitutional amendment, allowing the legislature to create statutory provisions, relating to medical malpractice.
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