Truck Injury Lawyer Blog : Truck Accident Lawyer & Attorney: Morgan Adams : Contingency Fee Truck Accident Lawyer

Frivolous Defenses and Frivolous Lawsuits

Legislators have been attacking frivolous lawsuits for clogging the courthouse and unfairly costing our society billions of dollars. As a result almost every state, including the federal government, has passed sever penalties for the filing of frivolous lawsuits. The number of lawsuits has decreased, but the amount of litigation has increased! How can this be? Simple, we now have a proliferation of frivolous defenses. 

Defense lawyers, in order to make up for the loss of the volume of cases, are now litigating everything in sight. It adds huge amounts of time to a case (waste a jury's time) and increases the costs and expenses of an injured party needlessly.

A simple fix would be to require frivolous defenses to be sanctioned in the same way frivolous cases are currently being sanctioned.

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Yes, that’s right, GOVERNOR HASLAM AND THE CHAMBER OF COMMERCE HELP TORT LAWYERS STAY IN BUSINESS! I was too hasty with my earlier post and didn’t think things though. It is the law of unintended consequences. Republican Governor Haslam, the Chamber of Commerce, and the state legislature have insured that people like me, trial lawyers, will thrive under the new law they just passed. That is how bad the new tort law (pushed by the Chamber of Commerce, the Tennessee Legislature, and signed by the Governor) capping non-economic damages is for the citizens of Tennessee. 

You see in the old days in Tennessee when a company was really bad, and had killed and maimed people all across the state, a jury of 12 citizens could kill the bad corporation by compensating a victim with a sum of money that was over and above the defendant's insurance policy. This made sure that the bad company never had the opportunity to kill and maim Tennessean’s again. That might have resulted in one large verdict, but only once, and then the company went out of the business of killing the people of Tennessee.

For people the rules are different. In criminal cases we have a "three strikes" rule. Hurt three people and you go away for a long, long, time. If it is bad enough, a person can get the death penalty and to heck with the three strikes rule. Thanks to the Chamber of Commerce's new tort liability law the bad companies get to stay in business. There is no three strikes rule, heck there isn’t even a twenty strikes rule. There is no death penalty. Bad companies in Tennessee get to live (and hurt and maim) forever.

Under the new law the amount that can be awarded by a jury is limited, or capped, and is so low it is easily covered by a corporation’s insurance. Thus a really bad company gets to stay in business and will continue to kill and maim as long as the business is profitable. It can take risks now that it never could before.

Every bad act of the company that results in another victim will likely result in yet another law suit, a process that can no longer be stopped in Tennessee by killing the company. In fact, thanks to the Chamber of the Commerce we no longer have a way of driving unsafe companies out of our state.  Mind you this is a law I fought against (having spent 22 years in the Marine Corps I have this thing about trying to protect Americans and keep them alive) as it is terrible for Tennessee.

Some corporations, and some people, need to be put somewhere their actions can’t hurt anyone else. Sometimes, if the act is bad enough, that means killing them. In Tennessee corporations can now kill at will without fear of ever being placed out of business by a lawsuit.

The next time you pass a graveyard thank the Governor, your Tennessee legislator, and the Chamber of Commerce. With the new law they passed protecting those companies that habitually maim and kill, the death and injury rate for the common person in Tennessee is going to go up, and our graveyards are going to fill.

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Governor Haslam has signed a law that states that non-economic damages should be capped in injury (tort) cases In Tennessee at $750,000 in most cases. Now in Tennessee juries are trusted to sentence a man to death, but apparently they are not trusted by the Governor to determine the proper amount of compensation for victims of someone else's wrongdoing in an injury case. There is not even a "three strikes and you're out" rule for really bad people and corporations that are repeat offenders!

Whether you agree or disagree with jury limits doesn't really matter, as the Tennessee Legislature and Governor Haslam can pass whatever legislation they want, and apparently they wanted to limit the amount of non-economic damages that can be received from someone injured by a wrongdoer. The new law is flawed in several aspects in my opinion.

First there is the hypocrisy in allowing "unlimited" damages against those that commit intentional acts. That sounds great but the Governor and legislators know that  NO INSURANCE POLICY IN TENNESSEE WILL PAY FOR AN INTENTIONAL ACT. It is EXCLUDED from the policy. Thus an an injured victim will likely get less money, not more, if you prove the defendant acted intentionally. It sounds good on a stump speech, but in reality this section of the law gives nothing and takes away everything form the injured. The Governor could have easily required insurance companies to cover these acts, but chose not to do so.

The second level of the legislature's and Governor's hypocrisy is that juror's WONT BE TOLD that there are limits in place. They believe that they helped someone, when in reality the government took it away and made them sweat out determining the amount of non-economic damages above $750,000 in the jury room for NO PURPOSE.

The final part of this tragedy is that the Governor will allow some catastrophically injured  Tennesseans to receive more than others. There is a special category for "catastrophic loss," which would raise the cap for non-economic damages in cases involving serious spinal cord injuries, severe burns, some severe multiple amputations, or the death of a parent of minor children. Now this new law excludes parents of adult special needs children, children taking care of the elderly (don't worry, they can go to a state run nursing home), victims with brain injuries, twenty year olds who have to wear diapers, or a bag, to catch excrement and waste fluids, chronic pain, etc...

Shouldn't we let a jury, on a case by case basis, decide if these cases are catastrophic after hearing the all facts? Shouldn't we let a jury decide that if you kill enough Tennesseans, you are going to get put out of business? Do parents taking care of special needs adult children, really deserve less than parents taking care of minor children? The Governor and legislature chose to take away these choices from the jury. Some Tennesseans are now more different than others and none of us are as special as corporations.

Many of my clients are brain injured, and catastrophically so, even if they are able to walk and talk. Their lives, as they knew them prior to the wreck, are over. In many case their personalities have changed. They died, but their life goes on. I find it arbitrary, and frankly an abuse of power, that the Governor has decided who can be catastrophically injured in advance of knowing all the facts. That Nashville knows better than a jury of 12 Tennesseans. I guess I trust the people of Tennessee more than those in office now. Voter's of Tennessee, your governor and your legislature just called you too stupid to do what is right in a jury box. (they also called the Judge, lawyers in the case, the Courts of Appeal and the Tennessee Supreme Court too stupid to get it as well, but hey, they were on a roll.) Voters you need to remember this come November.  

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Governor Haslam has proposed that non-economic damages should be capped in injury (tort) cases. In Tennessee juries are trusted to sentence a man to death, but apparently the Governor does not trust a jury, in injury cases, to determine the proper amount of compensation for victims of someone else’s wrongdoing. Did you get that? Governor Haslam is protecting the wrongdoers at the expense of their victims. This law does not apply to corporations, only to people like you and me. Corporations, who can only be injured economically, get every penny a jury finds owed to them, even if it is a lot.

Whether you agree or disagree with that doesn't really matter, as the Tennessee Legislature is controlled by Governor Haslam's party and they can pass whatever legislation they want. Apparently they want to limit the amount of non-economic damages that can be received from someone injured by a wrongdoer. 

So what does this mean? First, let’s talk about the wrongdoers. 

If you intentionally injure someone in the process of committing a crime (that doesn't constitute a felony) you don't have to pay as much. The Governor is going to protect you from a runaway Tennessee Jury!  The Governor is looking out for the rights of Mr. Wrongdoer and the victims' damages are going to be capped. (Lets be fair, the money coming to you as compensation for your actual damages will be limited or capped, there is still a chance to get punitive damages, but these are rarely awarded and, if they are awarded, are taxable. So the only full damages you get in these case are the ones in which the government gets a part.). A sexual abuse victim has personal problems? "Suck it up" says the Governor. The wrongdoer causes your child or spouse to be brain injured so that they can never interact socially with their class or peers? Move on says the Governor, “I need to protect these wrongdoers.” So that is the first part of the reform Governor Haslam feels compelled to pass on behalf of the wrongdoers in the state of Tennessee.

The second part of this tragedy is that the Governor will allow some catastrophically injured  Tennesseans to receive more than others. According to KnoxNews.com The administration late last week released changes to the bill that would create a special category for "catastrophic loss," which would raise the cap for non-economic damages in cases involving serious spinal cord injuries, severe burns or the death of a parent of minor children. Now these few categories excludes all brain injuries, apparently they are not catastrophic. Having to wear a urine drainage bag or diapers to catch your excrement and fluids as a twenty year old, chronic pain, etc... not catastrophic. Unable to ever have children because of someones wrongdoing? Not catastrophic. Does the Governor really believe he is all seeing and all knowing? Shouldn't we let a jury, on a case by case basis, decide this after hearing all the facts? I guess if you don’t trust the people of the state of Tennessee to do the right thing…

Now I have to admit many of my clients are brain injured, and catastrophically so even if they are able to walk and talk. Their lives, as they knew them prior to the wreck, are over. In many cases their personalities have changed and they are not the same spouse or parent they used to be. They get divorced and estranged from their kids. They have to move in with their children and need to be monitored. They essentially died, but their life goes on. 

This bill will impact many of my clients with brain injuries, and they will get less, and their families will get less. I find it arbitrary, and frankly an abuse of power, that the Governor has decided who can be classed as catastrophically injured in advance of knowing all the facts. I believe he should leave it up to a jury of 12 Tennesseans, hearing the facts of a case, to decide the issue.

Then their are the parents of special needs children. If you die it is not a catastrophic loss according to the Governor. Only if the children are minors can you get more, but still not the full amount of your damages. If you have adult special needs children? So sorry, you are out of luck. That is not catastrophic says the Governor. Take care of a parent that now needs to go into a nursing home? Not catastrophic says the Governor. It seems to me that if the legislature allowed catastrophic damages to any Tennessean that dies with a dependent it would be fairer (still limited in recovery, but at least not pitting one group against another and saying you don't deserve as much as others with dependents.).

Finally, no one, not even the judge, can tell members of the jury this travesty is happening. After the jury renders a fair verdict, the judge is required to cut it down and make it unfair to the victim. Note that if the original verdict was against the evidence, and unfair to the defendant, the law already requires the verdict to be reduced. This new law only impacts victims.

A copy of the Governor's shameful bill may be found here. You don’t think this is fair? Call your state representatives now (you can find your representatives here), but don’t expect them to change their minds, because you are just the sort of whacked out Tennessee citizen that might one day be on a jury... and the Governor doesn't trust you.

The Governor's proposed law, relevant sections in bold:

29-39-102.

(a) In any personal injury or wrongful death action, the prevailing

plaintiff may be awarded:

(1) Compensation for economic damages suffered by the

injured plaintiff; and

(2) Compensation for any noneconomic damages suffered

by each injured plaintiff not to exceed seven hundred fifty

thousand dollars ($750,000).

(b) If multiple defendants are found liable under the principle of

comparative fault, the amount of all noneconomic damages, not to

exceed seven hundred fifty thousand dollars ($750,000) for each injured

plaintiff, shall be apportioned among the defendants based upon the

percentage of fault for each defendant, so long as the plaintiff's

comparative fault is not equal to or greater than fifty percent (50%).

(c) All noneconomic damages awarded to each injured plaintiff,

including damages for pain and suffering, as well as any claims of a

spouse or children for loss of consortium or any derivative claim for

noneconomic damages, shall not exceed in the aggregate a total of seven

hundred fifty thousand dollars ($750,000).

(d) If an injury or loss is catastrophic in nature, as defined below,

the seven hundred fifty thousand dollar ($750,000) amount for

noneconomic damages, as set forth in subsections (a)(2) through (c) may

be increased to, but shall not exceed, one million two hundred fifty

thousand dollars ($1,250,000).

(e) "Catastrophic loss or injury" means one or more of the

following:

(1) Spinal cord injury resulting in paraplegia, hemiplegia or

quadriplegia;

(2) Amputation of two hands, two feet or one of each;

(3) Second or third degree burns over forty percent (40%)

or more of the body as a whole or third degree bums up to forty

percent (40%) percent or more of the face; or

(4) Death of a parent who is survived by one or more

minor children.

(f) The limitation on the amount of noneconomic damages

imposed by subsections (a)(2) through (e) shall not apply to actions

brought for damages or an injury resulting from an act or omission by a

defendant:

(1) If the defendant committed an act or omission that

would constitute a felony under the laws of this state or under

federal law and that act or omission caused the damages or

injuries; or

(2) If the defendant was under the influence of alcohol or

under the influence of drugs other than lawfully prescribed drugs

            administered in accordance with a prescription.

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Many articles have been written about BP being limited, by law, to paying only 75 million for economic damages in the gulf. Congress passed the Oil Pollution Act of 1990, known as OPA, to require oil companies to pay for offshore oil spills like this one. OPA limits the liability of the responsible party -- BP in this instance -- to $75 million in economic damages. We all know now that damages will exceed 1 BILLION dollars, and that 75 million isn't going to be a drop in that bucket. In fact estimates currently range to 14 Billion dollars and higher.

What must have seemed like a good idea at the time to George H. Bush, and the sitting congress in 1990, limiting lawsuits against all those vulnerable oil companies, now seems like a travesty. But that is exactly what tort reform does. It doesn't impact the vast majority of cases, but only those people that are hurt worst and impacted the most. Tort reform sounds wonderful, who can be against reform? Unless the person who is injured is you, your family, or someone you know. Then and only then do you suddenly realize that the tort reform limitation, the artificial caps placed on recovery for loss,  will never provide justice for the injuries caused by the wrongdoer.

In this case if BP used the caps (and in fairness they have already exceeded this amount by choice, even though not required to do so under the law) they would pay .0005 cents on every dollar, or $53.57 for every $10,000 in loss that can be proved to have been caused by the spill. Is it fair that the victims of the spill would only get $535.70 for every $100,000.00 in loss? Our Congress thought so in 1990 and many politicians, whether at the state level or federal level, seem to think so today.

Who picks up the tab when damages are artificially limited by tort reform? Well first it is the injured person paying out of pocket until their money and life savings vanish, and after that it is the government. In short we all pay for these artificial caps on liability called tort reform. I don't know about you, but my tax bill is high enough without adding another few Billion in economic losses from the BP disaster.

My suggestion is that if you believe in artificial caps, under the guise of tort reform, just place self imposed caps for yourselves and your loved ones and leave the rest of us alone. All you need to do is agree to take $535.70 for every $100,000 that you and your loved ones have in loss. I know lots of insurance companies that will happily agree to those terms with you, you won't even need a lawyer for this. You can be sure the happy noises you hear once you have signed that final release will be the wrongdoer's insurance company. 

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