SC Venue Crisis

The Post and Courier reported on the insurance industry attempts to protect their profits with a great editorial on joint liability.

“On July 6, 2014, a 26-year-old woman was driving drunk and crashed into a police car driven by Dillon Police Officer Jacob Richardson.

A passenger was killed; the officer was severely injured and suffered permanent brain damage.

The driver survived and was prosecuted.

The city of Dillon was forced to pay more than $1 million in medical bills for Officer Richardson — not because he or the city did anything wrong, but because the drunk driver couldn’t pay for it, and the bar that served the drunk driver had no insurance.

In a twisted sort of way, Officer Richardson was lucky. Most victims of drunk drivers aren’t police officers whose employers have to pick up the cost of their care when the driver and the bar that helped inebriate her can’t pay what they’re legally obligated to pay. It easily could have turned out that the family of the brain-damaged victim was plunged into medical debt and forced to sell the family home to pay for his care.

This isn’t a sob story we dug up to explain why it was appropriate for the Legislature to pass a law requiring all S.C. businesses that serve alcohol at night to maintain at least $1 million in alcohol liability insurance.

To the contrary, it’s the story a group that calls itself SC Venue Crisis tells on its website to explain why bars are going out of business. And we’re glad it shares the story because it explains a lot more than the sterile definition of alcohol liability insurance that we usually hear: a policy that “protects establishments from liability for any property damage or bodily harm caused by an intoxicated person who was served alcohol at the business.”

That’s not wrong; it just makes it difficult to understand what’s really at stake here. The law that bar owners blame is designed to ensure that bars pay the damages a jury orders them to pay when their actions contribute to an innocent person’s death or injury.

The bars say insurers are raising rates so much that they have a hard time affording those $1 million policies, even if they’ve never had a lawsuit filed against them. Interestingly, their campaign isn’t mainly about eliminating the $1 million policy requirement: As The Post and Courier’s Parker Milner and Nick Reynolds explain, they complain about a different law that they say unfairly sticks them with more than their share of damages when someone else — the drivers, for instance — can’t pay theirs.

That joint and several liability allows people who are found liable in a lawsuit to be stuck with more than their share of the damages if other defendants can’t pay, but in most cases, it only applies to people who are at least 50% to blame. The exception is for “a defendant whose conduct is determined to be wilful, wanton, reckless, grossly negligent, or intentional or conduct involving the use, sale, or possession of alcohol or the illegal or illicit use, sale, or possession of drugs.”

In other words, even if the people who sold or served alcohol or engaged in those other bad behaviors were only slightly responsible for a death or injury, they can be forced to pay most or all of the damages. That’s because our state — which consistently has one of our nation’s highest rates of DUI deaths — considers it important to prevent such bad behavior. As it should.

Is there a better way to deal with the problem of bars enabling drunk driving — and the more fundamental problem of drunk driving itself? Absolutely.

We could require insurance companies to lower the rates of bars that require all their employees to go through server training to learn how to avoid overserving their customers, and that keep a clean record. Better still, we could mandate that training, which should result in lower rates because the bars would be less likely to overserve drunks, which would lower insurance companies’ exposure.

We could also require regulators or police to watch bars more closely and catch servers in the act of overserving patrons. (Quick trivia question: Did you know that the S.C. Constitution allows the sale of liquor for on-site consumption only at businesses that “engage primarily and substantially in the preparation and serving of meals or furnishing of lodging” — which means many of the businesses complaining that they can’t pay their alcohol insurance aren’t even supposed to be operating in South Carolina?)

We could hold bars and their owners criminally liable if their patrons kill or severely injure people — which would also have the effect of reducing insurance companies’ exposure, by giving bar owners more incentive to act responsibly.

For that matter, we could close some of the many loopholes in our DUI law, which would result in fewer of those drunk patrons getting behind the wheel — or more of them getting arrested and prosecuted by, say, the 10th time they drive drunk, instead of the 80th time.

We don’t want to see any responsible business forced to close. But we also don’t want to see irresponsible businesses stay open. We don’t want to see innocent people killed by drunk drivers. And the only ways to prevent that are with tougher laws against drunken driving, tougher enforcement of those laws and stronger incentives for bars to stop contributing to drunk driving. Eliminating those incentives is moving in the wrong direction.”