Personal Injury

To Capitol insiders, the term “tort wars” is shorthand for decades of political wrangling over the rules governing lawsuits for personal injuries — who can sue and collect damages for which actions.

The rules are a mix of legislation and appellate court interpretations, and with untold billions of dollars at stake, lawyers who specialize in personal injury lawsuits and their political allies, such as unions and consumer advocates, clash constantly with business groups and insurers.

The former seek to expand opportunities to sue and the latter resist such expansions and occasionally try to narrow the scope of liability.

Over the decades, the conflict has generated some memorable events. In 1975, for instance, a newly inaugurated Gov. Jerry Brown signed a landmark law, dubbed MICRA, that imposed tight limits on “pain and suffering” damages in medical malpractice cases. Next year, nearly a half-century later, California voters will decide whether the $250,000 cap should remain in place or be lifted, the latest of many attempts to undo the 1975 law.

A particularly colorful episode occurred in 1987, when lobbyists for personal injury lawyers and rival interests negotiated an armistice, finalized at Frank Fat’s restaurant in Sacramento with its provisions jotted down on a napkin. The “napkin deal,” as it came to be known, reduced liability for harmful products, such as cigarettes, and gave lawyers higher fees in medical malpractice cases.

The truce was short-lived, however, and the warring factions soon resumed hostilities in the Legislature and in ballot measures. Tort wars are a subset of the perpetual conflict that pits business, insurance and employer interests against unions, trial lawyers, consumer advocates and environmental groups over a broad array of specific issues.

The Civil Justice Association of Sacramento, California, a business-backed lobby that does battle with Consumer Attorneys of California and other pro-lawsuit interests, has issued a list of bills it says would “threaten to undermine fairness and balance in the state’s civil justice system.”

Most would create “private rights of action,” empowering lawyers to enforce new state laws through lawsuits. One example is Assembly Bill 95, carried by Assemblyman Evan Low, a Cupertino Democrat, that would require employers with 25 or more employees to provide 10 days of paid bereavement leave, and allow lawsuits to enforce it.

Employers see the threat of such lawsuits, with potentially heavy damages, as a tool to extract concessions and earn fat fees for lawyers. However, advocates say private rights of action are needed to discourage employers from flouting the law.

It’s not the first time that tort wars have generated strange bedfellows.

CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters.

More Personal Injury News

Florida Repeals State’s No-Fault Personal Injury Protection>/h3> Until recently, Florida has had a Personal Injury Protection (PIP) insurance system, also known as “no-fault insurance.” The intention of PIP was to provide injured drivers immediate medical coverage instead of establishing fault through the court system.

The primary goals of PIP were to reduce delays in payment for injured drivers and limit the weight on the court system. In Florida, PIP coverage was required to be purchased by all vehicle owners registered in the state. The coverage made individuals responsible for their own injuries suffered due to an accident, regardless of fault.

Senate Bill 54
The passage of Senate Bill 54 repeals the state’s no-fault PIP system and instead requires bodily injury coverage starting at $25,000 for all Florida drivers. Although earlier versions of the bill required insurers to offer medical payments coverage (MedPay) in the amount of $5,000 or $10,000, the passed version makes the offering optional and includes an optional $5,000 MedPay death benefit.

The bill will also entirely overhaul the framework under which motor vehicle claims are handled and address third-party bad-faith failures to settle actions against insurance carriers.

Bill sponsor Danny Burgess contends that a study from Florida’s Office of Insurance Regulations (OIR) demonstrated how rates would be reduced if PIP was repealed in Florida. He stated that the provisions addressing bad faith will also help stop fraud that has been all too common with PIP and therefore lead to even further rate reductions.

Opposition to Bill 54
Senator Jeff Brandes, one of three senators who opposed the bill, said that studies regarding how exactly the bill would lower rates have been insufficient. Specifically, Brandes stated that “Florida already has some of the highest rates in the country, and unfortunately if you are just struggling to make it… [and] buying just PIP today, rates will go up 40%.”

The American Property Casualty Insurance Association (APCIA), an insurance trade group, also opposed the bill, stating it may increase the state’s current 20% uninsured rate. The APCIA further noted that its analysis shows the bill could increase the cost of the average auto insurance policy by as much as 23% and that drivers who carry the lowest levels of coverage could see increases as high as $805 per year. The APCIA said more than 28,000 letters were sent to lawmakers opposing the bill and is encouraging the governor to veto the legislation.

Pursuing A Personal Injury Claim? Keep A Diary So You Don't Forget. Here's How.

If you have recently been injured in a car or truck accident or other personal injury event, it is a disorienting time. You may be simultaneously grappling with insurance companies, doctors, therapists and lawyers. Then there is getting your vehicle appraised and repaired, obtaining a rental car and clearing absence from work with your employer.

If you have a capable lawyer some of this burden can be reduced but certainly not all of it. Some injuries, for example concussions, in and of themselves make thinking harder. Medications too can make you sleepy or less attentive. Not surprisingly, this can serve to inhibit your later recollection of events.

That can be problematic. Insurance companies regard time as being on their side. You need the money and they have the money. The longer the process goes on the less you will remember about the basic facts of the case, which can lead to testimony that is inaccurate and at odds with the physical facts or other evidence.

Testimony that is wrong or limited by the vagaries of memory can compromise the prospect of receiving compensation. So what is a personal injury victim to do?

The answer is keep a diary. It doesn't have to be an old-fashioned written diary but it also can be. It may be a pain to do so but the value of it is difficult to overestimate. You can use your phone or a calendar or a pad of paper, The means isn't as important as the data you keep.

Missouri legislature passes new protections for businesses from COVID-19 suits

While somewhat late to the starting gate, Missouri has now joined a score of other states in adopting a law designed to provide liability protections for employers, product manufacturers, and health care providers from personal injury lawsuits associated with contracting, or the fear of contracting, COVID-19. This law, SB 51, takes effect August 28, 2021, if signed by the Governor.

Highlights are:

The bill creates a new statutory cause of action for COVID-19 personal injury suits that preempts other statutory and common law causes of action which could be used to assert a claim for liability (such as negligence, intentional torts, etc.).

Employers and other businesses are not liable for personal injury suits unless they engaged in conduct constituting recklessness (a voluntary conscious act or omission in reckless disregard of the consequences or a legal duty) or willful misconduct (an act or omission taken intentionally to achieve a wrongful purpose; or in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit).

The person suing for damages must prove by clear and convincing evidence that the employer’s act or omission actually caused the person to be exposed to COVID-19 and that actual exposure caused the person to suffer a personal injury.

The bill creates a rebuttable presumption that persons entering the employer’s premises assume the risk of COVID-19 exposure if the employer posts a statutory notice at the entrance to the facility.

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