OLYMPIA — During his 2004 campaign for attorney general, Rob McKenna vowed that he would use the position to curb how much state agencies pay out for major lawsuits. Instead, those costs have grown rapidly under his watch.
Washington agencies disbursed $76 million for tort claims last year — three times more than was spent the year before McKenna took office, according to documents released to The Associated Press. The state has paid out about $300 million over the past six years.
The Republican, who is running for governor, said in an interview that he’s fulfilled his 2004 campaign promise by aggressively pursuing ways to lower the state’s liability — such as risk management and early dispute resolution. He blamed the Legislature for failing to enact changes to the state’s expansive liability, which places government on the hook for major settlements even when the state is found to be only minimally at fault.
“Everything we can control and affect, we’ve had a lot of success with,” McKenna said.
Lucy Isaki, a former senior assistant attorney general who now serves as the state’s risk manager under Democratic Gov. Chris Gregoire, said she is loath to criticize the decisions made by individual attorneys in McKenna’s office. But she questioned McKenna’s persistent focus on reforming tort laws — something that seems politically impossible — instead of identifying broader strategies for winning cases or lowering verdict payouts.
Isaki, who has made political contributions to Democrats such as Gregoire and gubernatorial candidate Jay Inslee, said McKenna doesn’t seem to be giving the same attention to the litigation sector as he does on criminal and consumer protection issues. And she said it doesn’t appear that he has established any type of creativity or overall strategy for the torts division, such as working with consultants to identify the right cases in which the state could push a sympathetic message and help establish a precedent with a smaller payout.
“It would be nice to see the management of the office make something like that happen, looking at how we can effectively ask (a jury) to think about a verdict amount that will reasonably compensate, but at the same time protect the taxpayers of Washington,” Isaki said. “I would certainly like to see them do more.”
McKenna’s office has taken an average of about 11 cases to jury trials each year, according to records released under state public disclosure laws. That’s about half as much as his predecessor — Gov. Chris Gregoire — although the state is also seeing fewer cases overall.
The attorney general’s office typically coordinates trial decisions with Isaki’s office, and the state has been cautious with cases because of the threat of major jury verdicts.
The amount the state pays out for claims can fluctuate dramatically each year because one case can have a major impact. Last year the state paid out an $8 million settlement for a man who is now a quadriplegic as the result of a bike accident in which his front tire got caught in a gap between two steel grates on the Montlake Bridge in Seattle.
But the $300 million paid out in the first six full years of McKenna’s leadership is about $70 million more than was paid out during Gregoire’s final six years before she became governor. The highest year ever occurred in a 2001 spike, during Gregoire’s time, when the state paid out $85 million.
In his 2004 campaign, McKenna complained about the high costs being passed along to taxpayers. He said at the time that he would help the state avoid lawsuits by making sure “rogue bureaucrats” follow the law, and he wrote on his campaign website that his work would minimize big lawsuit payouts.
“Taxpayers should not foot the bill: Lost lawsuits are costing taxpayers hundreds of millions of dollars. I’ll reduce lawsuits against state taxpayers by requiring state agencies to obey the law, and by seeking reforms that limit lawsuit abuse,” he wrote in his official candidate statement.
Even though overall costs have risen, state figures show that the frequency of payouts is down. The state paid 885 claims last year, down from 1,064 in McKenna’s first full year in office. McKenna’s office also said it has been working with fewer attorneys in the tort division — 39 now, compared to 50 in 2005.