The Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Litigation

Abstract

If two defendants share a joint and several liability and the first becomes insolvent, his unpaid liabilities are reallocated to the second. While the second defendant's assets may cover its share of liability, they may not cover the first defendant's share. Thus, the one defendant's insolvency may trigger the other's. We quantify this externality in the context of asbestos-related torts. We choose this example because 61 companies with major asbestos liabilities have gone bankrupt since 1982 and nearly 8,000 other companies have been named in asbestos suits. Using data from 10-K forms and asbestos trials, we estimate that payments on asbestos claims grew 5 - 10 percent annually - over 150 percent total - during 1990 - 2002 due to the bankruptcy of jointly liable defendants. We discuss the implications for the priority of tort claimants in bankruptcy and piecemeal tort litigation as a compensation mechanism for mass torts.

Keywords: Joint and several liability, bankruptcy, asbestos, tort

JEL Classification: G33, K13