http://www.tulsaworld.com/news/article.aspx?subjectid=12&articleid=20110223_12_0_OKLAHO85889 (http://www.tulsaworld.com/news/article.aspx?subjectid=12&articleid=20110223_12_0_OKLAHO85889)
The governor will sign this one immediately. It restricts pain and suffering awards to no more than $250,000. It's a boon to the insurance industry, and it will undoubtedly be touted as a measure to rein in the costs of medical malpractice awards, but in all honesty, how many people receive large pain and suffering awards now?
There's one other problem. Citizens have the right to "petition the government for redress of grievances" and this measure seems to remove that right. We can sue a doctor who botches a procedure, but even if it goes to a jury, they're forbidden to award more than $250,000, even if the case merits a higher award.
The bill includes subrogation, too, which allows your insurance company to collect money from you if you sue another party and receive an award. In effect, you and your attorney act as unpaid agents of the insurance company, and you have to reimburse them for any expenses they paid.
People get the kind of government they deserve. Oklahomans elected these bastards and now they get to suffer the consequences.
There's more than that coming out of the OK Senate. Looks like the collateral source rule will be abolished and there will be modifications to joint and several liability between multiple defendants. These are huge changes. Has anyone checked on cannon fodder lately?
Edited.
The abolishing of the collateral source rule, and the allowance of the introduction of evidence of an injured party receiving payments from collateral sources (other than the accused defendant), could devastate that party's case.
I'm here.
Surely now our insurance premiums will go down. We just have to give up a few more rights.
Here is the math:
Drunk driver crashes into you. Medical bills are 18,000 (not really that high). Your insurance pays $10k. The insurance company knows this and offers you $10k to go away... you hire an attorney because you still hurt.
At trial the defense gets to say you treated more than you needed to, you. Weren't really hurt, your insurance paid all the reasonable medical bills, and your just greedy. You can not mention that the attorney saying that works for the insurance company or the word insurance at all If anything, they only owe your medical bills that are left of $8k.
The Tulsa jury buys it, gives you $8k medical and $3k for your trouble. The attorney spent $6k getting to trial and has a $5k fee. You owe your insurance company 8k in medical and $10k in subro. The attorney cuts his fee in half and negotiates meds down and you MIGHT break even.
Congrats, you got hit by a drunk and injured, the insurance company offer nothing because you knew you had no rights, you found an attorney willing to try it and your only owe another $8k before you break even. I try cases, that's what I do. Why would an insurance company pay if at trial they have a ton of advantages including using your insurance against you? They are for profit - they won't pay. I will still try cases, I will continue to win cases, but the money won't go to my client no matter how much I cut my fee.
No one can say this law helps oklahomans with a straight face. Cheaper med care? Business to oklahoma? Cheaper innsurance? Nope. Of course not. The more we take decisions away from oklahomans and give them to lobbyist the less we get.
Allstate. State farm. Farmers. Geico. Progressive. They wiin. If anyone has an honest counterpoint id love to hear it.
Here is a fun link:
https://www.absolutelawfirm.com/2011/02/republicans-assault-juries/
From the horses mouth:
http://www.oksenate.gov/news/press_releases/press_releases_2011/pr20110208d.html
The senators offering the bills offered no study, no facts, and no argument in favor. Just that we need it to attract businesses and doctors. In spite of Oklahoma consistently ranking among he most business friendly. In spite of Oklahoma having a number of doctors (per capita) on par with surrounding and medical malpractice premiums that are lower than neighboring states (hey, I thought the last time we gave up rights was going to solve our health insurance costs? Mine went up.). But trust me ::wink:: we need you to give up a few more rights. Oklahoma City politicians know better than the ABA, judiciary riles committee, 225 year of American Common Law, the founding fathers, or any Oklahoma Jury. We're behind, if you give up YOUR rights then business can make profits here.
Some more fun simple math:
I have $200k life insurance on my wife , policies that I pay for. My wife is killed by some punk kid texting pictures of himself to his girlfriend who crashed. He has $250K in insurance (wow! Thanks mom!). His insurance company offers $25,000 for killing me and tells my wife to kiss their butt - you wont get any more at trial. My wife hires an attorney and sues them and wins the full $250K. The drunk owes $250k, gets a deduction for $200k for the life insurance that I paid for, and his insurance company only has to pay $50K. It cost $6k to put on the trial (again, thats cheap), the attorney takes his fee, and a year after they offered my wife $25k for killing me she takes home $19k for her troubles - assuming she doesn't have to subrogation any other insurance company (or funeral liens).
Yay justice! I'm sure that will lure more business and jobs to Oklahoma. I'm sure that helps Joe Blow Okie.
http://www.okwatchdog.org/userImages/files/CollateralSourceRule.pdf
In one of my "hypothetical" cases a man was on disability for being legally blind. He was a passenger in a car that was struck by a commercial vehicle. He was since restricted to a wheel chair (outside leg was crushed in a T-bone), suffered brain damage ("closed head injury"), and had scars on his face from glass in addition to "soft tissue" and broken bones, including rods and screws to repair his arm. He was messed up. Medicaid took care of all his medical bills (and was paid back under the old laws). Under the new rules at best the insurance company would have to pay $250K for crippling this man, disfiguring him, and essentially turning him into a drooling idiot in a wheel chair (he was severely mentally handicapped) (offer him $125k before he hires an attorney and tell him you'll make sure he wont pocket any more if he tries to make them pay more). The Federal Government has to pay his medical bills, he has no lost wages because he wasn't working, $250K and done. Assuming he doesnt owe Uncle Sam fron that money (he will) or have any other insurance they get to deduct. How much is destroying a persons life worth? I'd venture to guess most juries would say more than $250K . SOLUTION! Take it away from the juries.
Who does this help? Is this justice? Is this stopping frivolous lawsuits?
Quick, someone tell me how these laws protect ANYONE from a frivolous lawsuit. Anyone? Anyone?
These laws have NOTHING, absolutely nothing about punishing someone for filing or throwing out frivolous lawsuits. Something that the judges of our state and juries already have the power to do. If anyone has any idea how any of the new laws prevent such fabled junk lawsuits I'd love to know. Pure BS.
These laws have nothing to do with increasing jobs or bringing doctors to Oklahoma.
<blockquote>• SB 863 will put a hard cap on non-economic damages at $250,000
• SB 864 will require that compensation from sources independent of a defendant shall be submitted as evidence to the jury and subtracted from the amount of damages recovered from the defendant
• SB 865 will require that juries receive accurate information regarding tax impact on awards
• SB 866 will allow for periodic payment of future damages rather than requiring that awards be paid in a lump sum</blockquote>
- You can't ask a jury for more than and you can't get more than $250K no matter what someone does to you.
- You can't ask a jury to pay for anything you already paid for with your insurance, if you owe your insurance money back it comes from whatever is left
- Defendants get to tell the jury you have all this great insurance taking care of you
- You can't tell the jury the Defendant has insurance taking care of him
- The Defendant gets to talk about irrelevant tax consequences to you of any award you may get ("tax free money" or "makes so much money already that...", you can't talk about the fact that the defendant isn't paying it - his insurance company is, or that your attorney takes his fee and costs out of the award, or that the defendant didn't have to hire an attorney his insurance company has some that work for them.
- The Defendant's insurance company gets to decide if they pay you now and you get to invest the money, or they pay you over time and THEY keep YOUR money (and the fees, commissions, and benefits of "managing" your money. Currently the Plaintiff decide when HE wins - and a smart ones gives the money to NOT THE DEFENDANT to take care of and invest).
What do all these things have in common?
Very simple - they are bills that insurance companies have written and have paid to get inserted into Oklahoma Law. If anyone can tell me with a straight face that the new laws aren't what the insurance lobby would write if told they can write their own laws - I'd call you a liar. No one honestly argues these are what the insurance companies want inserted into law. If we just keep giving the insurance companies what they want eventually Oklahoma will be a paradise. Right? Surely instead of just making more money they will reduce all our premiums. I'm SURE they will do the right thing and pay people their insureds hurt.
It won't bother me too much professionally - I'll just shift my practice. I no longer take med mal cases (last one I took was a surgical sponge left in a guys arm that caused an infection that partially paralyzed his right hand, the Defense offered $19k to go away - the original surgery cost $17k (which was paid). They fought for three years refusing to give more money, client was transfered to California and gave up instead of flyng back for a second deposition and more doctors - my firm had already spend thousands and thousands on the case. When it got HARDER I said screw that). I stopped helping people who were obvious victims of med mal... I'll shift my practice again and stop helping people getting screwed by insurance companies in catastrophic injuries. I'll go back into business law. Finance. God knows I could make more money as an attorney just about anywhere else. So it's not my career I'm too concerned about.
It's simply intolerable to force the Courts to administer such rancid "justice". Stack the deck and then pretend like it is a real trial. Sure you can have a trial - there is no way you will actually get any money and economically you can't afford to have a trial and no one will do it on contingency fee, but you CAN theoretically if you don't like what the insurance company is doing. Feel free to ask your peers to correct it all you want, but Oklahoma City already decided the issue.
and on a side rant:
Congratulations.
I voted Republican party lines for years in Iowa before moving to Oklahoma. Oklahoma has it's own breed of Republicans. In 8 years you turned a registered party line voting and donating Republican away from the party. I said it couldn't be done. I openly mocked people at some firms I was at that said I'd see and they'd turn me.
"Tort reform" after "tort reform" limiting citizens rights over and over for no quid pro quo or benefit. Promises of tax reform that never materialize. Effort spent making sure everyone knows we are bigots. Christian religious zealotry as a litmus test. Stupid clearly unconstitutional laws and actions just to pander to the politic. Promise after promise of bringing business, doctors, good jobs, and infrastructure improvement to Oklahoma.
Well, here we are. Fat, high infant mortality rate, low life expectancy, poor health ratings all around. Low income, uneducated population, and crumbling infrastructure. Small government promises and large government restrictions. I'm living in a conservative paradise and we are in the bottom half in nearly every matrix (health, income, education, teen pregnancy...).
/sorry for the random, incoherent rant.
Random perhaps, but not incoherent. Better than my spittle-flecked rage fests, anyway. ;)
Quote from: nathanm on February 24, 2011, 12:16:02 AM
Random perhaps, but not incoherent. Better than my spittle-flecked rage fests, anyway. ;)
He's just upset because, if passed, the reform would seriously hurt his livelihood. :D
I really don't see where it's going to change payouts to victims drastically with the exception of truly egregious awards in malpractice cases.
Most people who are carrying compulsory auto liability limits only don't have significant assets after their limits of liability are reached and I don't believe many home owners carry significant liability insurance in addition to what the basic amount offered on their policy is.
Quote from: Conan71 on February 24, 2011, 10:14:19 AM
I really don't see where it's going to change payouts to victims drastically with the exception of truly egregious awards in malpractice cases.
Most people who are carrying compulsory auto liability limits only don't have significant assets after their limits of liability are reached and I don't believe many home owners carry significant liability insurance in addition to what the basic amount offered on their policy is.
That's the problem. Most people don't understand. Here are three simple examples of actual cases I've done recently (obviously simplifying things and leaving out details I can not divulge):
1) Woman crippled by commercial vehicle
wrongdoer insurance paid $1.5mil
Under the current law after costs, fees, medical bills and subrogation he got around $550K in her pocket, which she invested in an annuity of his choice and will receive about $3.5k a month for the rest of her life and paid off her car (he was earning more than $60k before he was crippled). This must be the "windfall" they are trying to prevent.
Under the proposed law - her award is reduced by HER insurance payments (which he then has to pay back anyway) and she ends up with $150K in her pocket, and the insurance company forces her into THEIR investment and she gets about $1k a month. Inevitably going on social security soon thereafter. Windfall averted!
The insurance company saves about $500,000.
2) In a more common small case
A woman is hit by a drunk driver, has around $9k in medical bills and $2k in her own medpay. Her primary care doctor indicates she will likely develope neck problems as she ages and she still has headaches that cause her to leave class and go home about once a week (a year after the crash).
Under the current laws she ends up getting her bills, fees, and costs paid and walks away with nearly $3500 in her pocket. Under the new laws she walks away with around $2100.
The wrongdoer's insurance company saves $1400.
3) And if you have your own health insurance...
Hit by whoever, $20k in medical bills over dozens of doctor visits, your health insurance pays it all. Insurance company offers you $1k since you don't owe anyone, you say hell no and hire an attorney.
Under the new law whatever amount of money you collect from the insurance company they get a deduction for whatever amount YOUR insurance paid. If the award is $25k they subtract $20k right away, and you spent $6k to get there.
The wrongdoer's insurance company saves $20k.
4) Trucker example in wrongful death
A mexican trucking company driving to KC kills your wife in OKC (for the I hate NAFTA crowd). You have $1mil in life insurance on her you have paid $500 a year for 20 years on. They tell you to screw off and you go to trial. Jury verdict for $1,000,001. The insurance company deducts the $1mil for your life insurance, your attorney takes his 33 cents as a fee and eats the time and $10k he spent trying to the case, and the insurance company pays you 67 cents.
The wrongdoer's company saves $999,999.
See the common theme there? The person that was injured gets screwed and the insurance company for the party that injured you saves THOUSANDS and THOUSANDS of dollars. The person who actually did something wrong gets a windfall.
You'll notice Guido isn't bothering to discuss the merits of the argument, just making snide remarks. The simple reason for that is because there isn't a decent case to be made to defend the laws. It's a gift to the insurance lobby and nothing more. They don't make legal sense (see, e.g., the writings of every great legal mind for 300 years). They don't make economic sense (http://www.law.ku.edu/publications/journal/pdf/v15n1/marshall.pdf). They certainly don't make sense to proponants of small unintrusive government (lobbyist in Oklahoma city telling a jury in Tulsa was compensates a victim). And they damn sure don't make sense to Joe Blow Oklahoman.
Hey Guido,
I thought the last round of "Tort reform" was going to solve all of our problems? My insurance cost and the cost of health care went up. The per capita doctors in Oklahoma stayed the same. Could it be that medical malpractice is only 1% of health care costs? Or do we just need to give up a little bit more of our rights before we see a benefit?
And please, if you are going to be snippy at least try to make some points on the merits.
But don't worry about me, if the legal profession entirely dissolved tomorrow I'd have a job on Monday making more money than I currently do (as timing would have it, that's no hyperbole on the turnaround time, I just like what I do). I've been in sales, computer software, operations management, a controller, business litigation and in bankruptcy... if I have to do something different I will. My interest is beyond my personal stake.
I have neither seen nor heard an argument that makes the case this is prudent, just, or fair.
Since when was other people's liability deducted from your own personal coverage? I wonder how many other people are aware of this?
I only recently became aware of it as someone I ride with was hit by a car (driver was texting or talking on the phone) a couple of years ago and did about eight weeks of sheet time in-patient and had some surgeries. The woman who hit him carried state minimums. He's a firefighter and had pretty good health insurance. His health insurance company subrogated her liability insurance and she has no other assets so she's out nothing and I assume continues to drive even though she had multiple moving violations and accidents prior to this incident. In the meantime, Rick was forced into early retirement (he'd attained captain's rank) at a reduced rate than if he'd have worked another 10 years as he's still got some motor skill and memory issues which became a danger to his occupation.
He's still stuck with all the deductibles and co-pays. Granted, in his case, cap or no cap on pain & suffering, it wouldn't have made a difference on recovery. I simply never understood that the person at fault's insurance, in many cases does not pay until after your coverage.
Quote from: cannon_fodder on February 24, 2011, 11:05:24 AM
That's the problem. Most people don't understand. Here are three simple examples of actual cases I've done recently (obviously simplifying things and leaving out details I can not divulge):
Exampe 1: I got lost in the he, she, their lack of references. I have no problem with a big award for real expenses. I do have a problem with someone getting a large (define large?) sum of money because their thumbnail will be permanently discolored (intentional exaggeration). Punitive damages should go to a charity of the wronged party's choice.
Example 2. Maybe we should allow open ended settlements for cases where there is likely significant future expense. I am thinking of when one of my cousins (as a kid chasing an ice cream truck) got hit by a taxi and suffered permanent brain damage. That opens a whole new can of worms, I know.
Example 3: Which insurance offered $1K and why? If you are fixed up and just getting greedy, that is what some of the complaints are about. Why cannot your insurance company recover thier losses from the wrongdoer's? Sounds like No-fault car insurance.
Example 4: I agree the Mexican trucking company's insurance should not be able to deduct the $1M you got on an unrelated insurance policy.
Quote from: cannon_fodder on February 24, 2011, 11:05:24 AM
That's the problem. Most people don't understand. Here are three simple examples of actual cases I've done recently (obviously simplifying things and leaving out details I can not divulge):
1) Woman crippled by commercial vehicle
wrongdoer insurance paid $1.5mil
Under the current law after costs, fees, medical bills and subrogation he got around $550K in her pocket, which she invested in an annuity of his choice and will receive about $3.5k a month for the rest of her life and paid off her car (he was earning more than $60k before he was crippled). This must be the "windfall" they are trying to prevent.
Under the proposed law - her award is reduced by HER insurance payments (which he then has to pay back anyway) and she ends up with $150K in her pocket, and the insurance company forces her into THEIR investment and she gets about $1k a month. Inevitably going on social security soon thereafter. Windfall averted!
The insurance company saves about $500,000.
2) In a more common small case
A woman is hit by a drunk driver, has around $9k in medical bills and $2k in her own medpay. Her primary care doctor indicates she will likely develope neck problems as she ages and she still has headaches that cause her to leave class and go home about once a week (a year after the crash).
Under the current laws she ends up getting her bills, fees, and costs paid and walks away with nearly $3500 in her pocket. Under the new laws she walks away with around $2100.
The wrongdoer's insurance company saves $1400.
3) And if you have your own health insurance...
Hit by whoever, $20k in medical bills over dozens of doctor visits, your health insurance pays it all. Insurance company offers you $1k since you don't owe anyone, you say hell no and hire an attorney.
Under the new law whatever amount of money you collect from the insurance company they get a deduction for whatever amount YOUR insurance paid. If the award is $25k they subtract $20k right away, and you spent $6k to get there.
The wrongdoer's insurance company saves $20k.
4) Trucker example in wrongful death
A mexican trucking company driving to KC kills your wife in OKC (for the I hate NAFTA crowd). You have $1mil in life insurance on her you have paid $500 a year for 20 years on. They tell you to screw off and you go to trial. Jury verdict for $1,000,001. The insurance company deducts the $1mil for your life insurance, your attorney takes his 33 cents as a fee and eats the time and $10k he spent trying to the case, and the insurance company pays you 67 cents.
The wrongdoer's company saves $999,999.
See the common theme there? The person that was injured gets screwed and the insurance company for the party that injured you saves THOUSANDS and THOUSANDS of dollars. The person who actually did something wrong gets a windfall.
You'll notice Guido isn't bothering to discuss the merits of the argument, just making snide remarks. The simple reason for that is because there isn't a decent case to be made to defend the laws. It's a gift to the insurance lobby and nothing more. They don't make legal sense (see, e.g., the writings of every great legal mind for 300 years). They don't make economic sense (http://www.law.ku.edu/publications/journal/pdf/v15n1/marshall.pdf). They certainly don't make sense to proponants of small unintrusive government (lobbyist in Oklahoma city telling a jury in Tulsa was compensates a victim). And they damn sure don't make sense to Joe Blow Oklahoman.
Hey Guido,
I thought the last round of "Tort reform" was going to solve all of our problems? My insurance cost and the cost of health care went up. The per capita doctors in Oklahoma stayed the same. Could it be that medical malpractice is only 1% of health care costs? Or do we just need to give up a little bit more of our rights before we see a benefit?
And please, if you are going to be snippy at least try to make some points on the merits.
But don't worry about me, if the legal profession entirely dissolved tomorrow I'd have a job on Monday making more money than I currently do (as timing would have it, that's no hyperbole on the turnaround time, I just like what I do). I've been in sales, computer software, operations management, a controller, business litigation and in bankruptcy... if I have to do something different I will. My interest is beyond my personal stake.
I have neither seen nor heard an argument that makes the case this is prudent, just, or fair.
Jeez CF. Calm freakin down. I was making a joke about your losing income. Must a struck a nerve. Too close to the truth?
Red, I mentioned earlier about how devastating abolishing the collateral source rule would be to a plaintiff. This is the one reform I am absolutely against. A tortfeasor should not receive a benefit because the person he/she injured was responsible and purchased insurance.
Originally, IMO, punitive damages weren't supposed to make attorneys and their clients mega wealthy. They were send a message and make sure the offending party wouldn't have such a lapse in judgement or engage in negligent behavior ever again, thus protecting others from the situation the plaintiff found themselves in.
Quote from: Red Arrow on February 24, 2011, 12:22:00 PM
Exampe 1: I got lost in the he, she, their lack of references. I have no problem with a big award for real expenses. I do have a problem with someone getting a large (define large?) sum of money because their thumbnail will be permanently discolored (intentional exaggeration). Punitive damages should go to a charity of the wronged party's choice.
Her was always in reference to the Plaintiff. In this case she had several back surgeries, her hip replaced, and an arm shattered repaired with hardware. She will never work again. Under the new law she would have been "rewarded" with $150,000 in her pocket.
I try cases. I have never seen a jury in Oklahoma award an unreasonable some of money. In fact, in the entire state NO judge has reduced a jury award as excessive in the last two years (survey period). When given a survey by the judiciary committee ZERO judges indicated they thing jurors in Oklahoma re Not Capable of reaching a reasonable decision on their own. People getting huge jury verdicts for minor injuries is a myth. If it was real they'd be plastering examples of runaway Oklahoma juries all over their press releases, floor speeches, and media bytes.
Big verdicts for minor injuries are a myth. Just like owning land with an oil well on it makes you "rich". It's possible, but if you see an oil well on someones land or if you hear about someone having a personal injury case - the odds of them being rich from it are very, very long.
Punitive damages are also a myth. Large punitive damages are so rare that spending any real effort to "fix" the "problem" is a joke. I've had one punitive damage verdict in my life and I think it was for $1. But if you entirely took the incentive to fight for punitives off the table then no one would put forth the extra effort and society as a whole would lose out (which is why the law allows for punishing the person so it doesn't happen again). Would a law requiring severe tax consequences or a donation of punitives over $X be out of line? I don't think so.
Quote
Example 2. Maybe we should allow open ended settlements for cases where there is likely significant future expense. I am thinking of when one of my cousins (as a kid chasing an ice cream truck) got hit by a taxi and suffered permanent brain damage. That opens a whole new can of worms, I know.
I'm not interested in an open ended can of worms, I want closure. Any open ended agreement leaves the injurred party having to return to the Defendant each time they want medical treatment. It also assumes large financial/insurance institutions will always be around.
Generally this money is put into an "MSA" anyway. In big cases it isn't usually just handed to the person. Medicare approves a sum of money to be put into a medical trust account for the person (much like a health savings account). That way of doing things is well advised for the client anyway and ensures the person doesn't blow the money and go on the government roles.
Quote
Example 3: Which insurance offered $1K and why? If you are fixed up and just getting greedy, that is what some of the complaints are about. Why cannot your insurance company recover thier losses from the wrongdoer's? Sounds like No-fault car insurance.
This is in Oklahoma - NOT no fault insurance. YOUR own health insurance paid all your medical bills. Since you have no outstanding medical expenses the liable parties insurance company only offers you $1k to go away (which your insurance company will then take in subrogation). You go to trial, you get a verdict for $25K, take out the $20k your health insurance covered, take out trial expenses, YOU get nothing.
So yep. You've had to go to doctorts for months, be poked and prodded, and hurt for months... and you get nothing while the at-fault insurance company is saving $20,000. Or maybe, just maybe, the "greedy" citizen who hurt for months deserves compensation for being injurred by a negligent driver. Can I break your arm if I promise to pay your medical bills?
Quote
Example 4: I agree the Mexican trucking company's insurance should not be able to deduct the $1M you got on an unrelated insurance policy.
This is the same as every other example I gave. All the examples are deducting UNRELATED insurance that YOU pay for so the at-fault party doesn't have to give you any money. Be it health insurance, life insurance, med pay, or uninsured motorist coverage. That's my entire point - the at fault insurance company is using YOUR insurance to save thousands and thousands of dollars.
Conan:
In Oklahoma, currently, the benefit you receive from your insurance is in NO WAY related to the amount of money you can recover from the at-fault insurance company. If the at-fault person caused $25K worth of damage, they pay $25K - you then take that money and pay back your insurance depending on your insurance contract (some you do, some you don't, some you half do). The negligent, wreckless, or otherwise at-fault party doesn't get to use the insurance YOU pay for.
Under the proposed law if the at-fault person caused $25k worth of damage they pay $25k LESS any you received from YOUR insurance, and THEN your insurance can ask you for their money back anyway. The at-fault party gets to use YOUR insurance to save money. If they cause $25K in damage and you have $25k of insurance that covers it - the person that hurt you owes you NOTHING. "I know I was drunk and ran you over, but your health insurance covered it anyway."
And on punitives - the intent IS to discourage future behavior. Not negligent behavior - but behavior that is beyond the standards of a civilized society, that is outrageous, malicious, or that ignores the rights of others. For example, "I know my scientists have told me my product kills people, but to make more money I intend to lie about these studies." That can be cigerettes, the Ford Pinto, or a chemical additive in food. That behavior is SO abhorant that as a society it is in our interest for a jury to award a judgment SO LARGE that no other company can seriously consider such behavior again. In the best interesting instances, the behavior makes economic sense WITHOUT the threat of punitive damages - "if I ignore it I will kill X people at $y each and lose $5mil. It would cost $6mil to fix it. Lets hide the problem and let them die." Add punitives and all of a sudden that equation changes.
Guido:
Sorry I was snippy with you. I mistakenly thought you were defending this law by sniping at me. I do have a financial stake in this matter if I was fixed at the status quo (75% PI litigation) - but I'm not. I'll litigate any case that comes my way and consistently turn down more money to stay in a litigation practice in Tulsa (I'm not too bright I guess).
Anyway, I'd still be interested in hearing anyone defend the laws. I could fathom a defense fo the joint and several argument, but otherwise it is pure whoring to the insurance lobby.
Anyone else:
If I'm not clear let me know. I get stuck in details and dealing with this stuff everyday may assume knowledge that isn't there. Or I may just be typing in a flury and not being clear.
Quote from: guido911 on February 24, 2011, 01:07:02 PM
Red, I mentioned earlier about how devastating abolishing the collateral source rule would be to a plaintiff. This is the one reform I am absolutely against. A tortfeasor should not receive a benefit because the person he/she injured was responsible and purchased insurance.
Wait, wait, wait! Guido, remember that I push electrons around for a living. Please 'splain what the collateral source rule is, and what's a tortfeasor?
Quote from: cannon_fodder on February 24, 2011, 03:10:59 PM
Guido:
Sorry I was snippy with you. I mistakenly thought you were defending this law by sniping at me. I do have a financial stake in this matter if I was fixed at the status quo (75% PI litigation) - but I'm not. I'll litigate any case that comes my way and consistently turn down more money to stay in a litigation practice in Tulsa (I'm not too bright I guess).
Anyway, I'd still be interested in hearing anyone defend the laws. I could fathom a defense fo the joint and several argument, but otherwise it is pure whoring to the insurance lobby.
Nothing wrong with a little passion on an issue. Heck, I have several plaintiff cases; however not many are (nor will be) tort claims which would be affected by these changes.
Quote from: Ed W on February 24, 2011, 03:22:58 PM
Wait, wait, wait! Guido, remember that I push electrons around for a living. Please 'splain what the collateral source rule is, and what's a tortfeasor?
LOL!!!
Black's Law Dictionary (9th ed. 2009) defines "tortfeasor" as "One who commits a tort; a wrongdoer." This would be the party committing an injurious act. In
Handy v. City of Lawton, 1992 OK 111, ¶10, 835 P.2d 870, 878 Oklahoma's Supreme Court explained the "collateral source" rule as follows:
The collateral source rule applies, at its maximum, when the tortfeasor claims credit for money paid by the victim or for the victim by a stranger. In that instance the source of the benefit is truly "collateral," i.e., unconnected to the tortfeasor. This typically occurs when the tortfeasor claims credit for money paid by the victim's own insurance policy. Whenever the payor of claimed credit has no connection to the tortfeasor, the collateral source rule interposes itself to prevent the wrongdoer from benefiting from a "windfall."
[Punctuation on original; footnotes omitted].
The proposed law, if passed, would abolish this rule. Here is the text of the proposed law:
B. For the breach of an obligation not arising from contract, if the plaintiff receives compensation or is to receive compensation in the future for the injuries or harm that gave rise to the cause of action from a source wholly independent of the defendant, such fact shall be admitted into evidence and the amount shall be deducted from the amount of damages that the plaintiff recovers from the defendant.
C. The court shall reduce any award of damages by the amount of Medicare, Medicaid or Social Security disability benefits paid or payable to the plaintiff for the plaintiff's expenses or losses, provided that the court enters an order requiring the defendant to indemnify and make whole the plaintiff for any subrogation claim made for such benefits and for reasonable costs, including attorney fees, for the indemnification claim.
As I said, devastating. IMO this is worse than hard caps on non-economic damages.
Ugly formatting I know. I just don't know how to indent paragraphs.
EDITED to sexify my post a little bit. Seriously, the red are citations to legal authority/proposals and not my words.
I dare say that it's a rare day when our esteemed Legislature has excreted a bill so terrible that each and every one of us agree on its utter ridiculousness. How stupid can they possibly be to have written the bill such that the injured party's insurance (and government benefits!) reduce the defendant's liability?
QuoteSB 863 will put a hard cap on non-economic damages at $250,000
• SB 864 will require that compensation from sources independent of a defendant shall be submitted as evidence to the jury and subtracted from the amount of damages recovered from the defendant
• SB 865 will require that juries receive accurate information regarding tax impact on awards
• SB 866 will allow for periodic payment of future damages rather than requiring that awards be paid in a lump sum
SB863 - Possibly has some merit in my opinion as long as the emphasis is on non-economic. Lawyer's fees are economic.
SB864 - This is wrong. I do have a question though. If you have $10K of insurance, get hurt and have $10K in bills, and the court assesses $10K against the defendent, do you get $20K to pay your bills? Why doesn't your insurance co go after the defendant to recover their loss? This is the part about you being repaired that I was thinking of.
SB865 - Why should tax info have anything to do with this?
SB866 - I guess this is the open ended thing. Getting away from your personal body for the moment, say someone wrecks your car and there is hidden damage that only after a future failure is found to be the cause. I doubt there are too many engines or transmissons disassembled for inspection in the car world like there are in the airplane world. There is bound to be a human equivalent.
I don't think that's what 866 is saying. I think it's saying that if a jury was to award a plaintiff $500,000, the defendant or its insurance company could pay that out over time rather than in one lump sum.
Quote from: Red Arrow on February 24, 2011, 04:23:35 PM
SB865 - Why should tax info have anything to do with this?
Here's the proposed language:
The Oklahoma Uniform Jury Instructions (OUJI) applicable in a civil case shall include an instruction notifying the jury that no part of an award for damages for personal injury or wrongful death is subject to federal or state income tax. Any amount that the jury determines to be proper compensation for personal injury or wrongful death should not be increased or decreased by any consideration for income taxes. In order to be admitted at trial, any exhibit relating to damage awards shall reflect accurate tax ramifications.
Right now PI damages (non-economic) are not subject to taxation, which may not be known to a jury. I guess by not telling the jury this fact the author of this statute perhaps believes that juries have been making either increases or decreases adjustments in damage awards. I have tried bunches of cases and have never thought that that had been taking place. CF might have ran up against this.
Quote from: Red Arrow on February 24, 2011, 04:23:35 PM
SB863 - Possibly has some merit in my opinion as long as the emphasis is on non-economic. Lawyer's fees are economic.
SB864 - This is wrong. I do have a question though. If you have $10K of insurance, get hurt and have $10K in bills, and the court assesses $10K against the defendent, do you get $20K to pay your bills? Why doesn't your insurance co go after the defendant to recover their loss? This is the part about you being repaired that I was thinking of.
SB865 - Why should tax info have anything to do with this?
SB866 - I guess this is the open ended thing. Getting away from your personal body for the moment, say someone wrecks your car and there is hidden damage that only after a future failure is found to be the cause. I doubt there are too many engines or transmissons disassembled for inspection in the car world like there are in the airplane world. There is bound to be a human equivalent.
Welcome to Mary "Fail"lin's Oklahoma
CF,
I am not trying to discredit your example, only to clear it up for myself.
QuoteUnder the current law after costs, fees, medical bills and subrogation he (she?) got around $550K in her pocket, which she invested in an annuity of his [her?] choice and will receive about $3.5k a month for the rest of her life and paid off her car (he was earning more than $60k before he was crippled). [Was there another person crippled? Who was earning $60K? The truck driver?] This must be the "windfall" they are trying to prevent.
Under the proposed law - her award is reduced by HER insurance payments (which he [the truck driver?] then has to pay back anyway [to who(m)?] ) and she ends up with $150K [where did the $400K go/not go?] in her pocket, and the insurance company forces her into THEIR investment [I agree, should be an investment independent of the insurance co. I think it should also not be cash in her pocket to "take to the casino"] and she gets about $1k a month. Inevitably going on social security soon thereafter.
Quote from: nathanm on February 24, 2011, 04:30:21 PM
I don't think that's what 866 is saying. I think it's saying that if a jury was to award a plaintiff $500,000, the defendant or its insurance company could pay that out over time rather than in one lump sum.
If that is so, then I agree it's wrong. What if the payer goes bankrupt?
The way I read the actual language of the bill is that damages for current injuries are paid now. Damages that accrue in the future such as lost earnings due to disability or medical treatment in the future are paid periodically as they accrue or something like that.
You can read it here: http://e-lobbyist.com/gaits/OK/SB866 (http://e-lobbyist.com/gaits/OK/SB866). Please excuse the "e-lobbyist" link.
Overall, the truly shocking part of this "reform" is allowing a tortfeasor to benefit from the prudence of the victim. The rest is bad, but the elimination of the collateral source rule is truly ridiculous.
Edit: An interesting thing about SB864 is that it is an automatic mistrial for the plaintiff to mention to the jury that the defendant has liability insurance. Now the defendant gets to introduce evidence that the plaintiff's injuries are covered by insurance, I assume without mentioning that the plaintiff's insurance policy contains a subrogation clause that would allow the insurance company to recover its payments to the plaintiff from his or her recovery in the lawsuit. So the twin effects are that the defendant saves on liability insurance coverage, but the plaintiff's insurance costs will go through the roof or policies will exclude coverage for injuries caused by torts of third parties because the insurer will know that it will never recover what it pays out.
The answer to Red Arrow's question about bankruptcy isn't really affected by this legislation. Judgment debtors can file for bankruptcy just like any other debtor. If the judgment was for damages for an intentional tort, in all likelihood the bankruptcy court will rule that the debt is not dischargeable.
Quote from: Red Arrow on February 24, 2011, 04:37:23 PM
If that is so, then I agree it's wrong. What if the payer goes bankrupt?
Quote from: cynical on February 25, 2011, 09:31:03 AM
Edit: An interesting thing about SB864 is that it is an automatic mistrial for the plaintiff to mention to the jury that the defendant has liability insurance. Now the defendant gets to introduce evidence that the plaintiff's injuries are covered by insurance, I assume without mentioning that the plaintiff's insurance policy contains a subrogation clause that would allow the insurance company to recover its payments to the plaintiff from his or her recovery in the lawsuit. So the twin effects are that the defendant saves on liability insurance coverage, but the plaintiff's insurance costs will go through the roof or policies will exclude coverage for injuries caused by torts of third parties because the insurer will know that it will never recover what it pays out.
12 O.S. Sec. 2411:
QuoteEvidence of the existence of liability insurance is not admissible upon the issue of negligence or wrongful action. This section does not require the exclusion of evidence of liability insurance where the question of possession of liability insurance is itself an element of the action, or when offered for another purpose, including proof of agency, ownership, control, bias or prejudice of a witness.
Your point is something I had not even considered. Good job. I wonder if this statute will be modified?
Don't stop Cannon. Good stuff.
As for the future, how can this state be so stupid as to actually believe "new jobs", "good jobs" or any other kind of meaningful jobs if the intelligent, skilled people needed to fill those jobs are leaving in droves because of this kind of crap. I am pretty much stuck here due to the eternal phenomenon
of getting too old. (Past 45 - 50, they won't let you push electrons, Ed, no matter how good you are at it. They can get two newbies for the same price.)
You can legislate any kind of crap you want - and Oklahoma does a butt load of it - but that won't mean you are helping anything. Attack the workers and they will eventually leave to find a friendlier place. Watch Wisconsin. Would not be a surprise to see an exodus much like our state is seeing of teachers leaving.
Have had many family members leave this state just because of this type of stuff. Love this state. Hate what it has become.
This is a classic example of "The devil's in the details". The term "tort reform" sounds great in a sound-bite but the reality is it's a pile with lots of sleaze on it.
Quote from: heironymouspasparagus on February 25, 2011, 12:57:42 PM
Have had many family members leave this state just because of this type of stuff. Love this state. Hate what it has become.
Fortunately Oklahoma is not the only crazy state. There are others just as nuts (mostly in the South) or even more so. Colorado has plenty of nutjobs and would be almost as conservative as Oklahoma if it weren't for narrow Democrat majorities in their state legislature, mostly from Denver and Boulder. As a liberal progressive it's tough to watch but I just grit my teeth and accept it. Some aren't as loyal though. A very intelligent couple that I know is getting ready to move away because they are tired of it.
Quote from: SXSW on February 28, 2011, 09:27:35 PM
As a liberal progressive it's tough to watch but I just grit my teeth and accept it. Some aren't as loyal though. A very intelligent couple that I know is getting ready to move away because they are tired of it.
Sounds like some Wisconsin state senators I've read about lately--sans the intelligence...
I have friends (believe it or not....) who are planning to leave Ok very soon just because of these types of things here in the state. Both gay, both sick of the pathetic bigotry and discrimination and the general BS attitudes expressed by this state toward "their kind". They will be a big loss to the state, since they are just the kind of upper middle class professionals who actually support this place with their taxes and contributions to the companies they work for. Between the two, they pay more than any 10 to 15 of the typical "bubba homophobe" we got here. Think Randy Terrell. Think Sally Kern. Jim Inhofe.
It's a shame. I will miss them a great deal, and the state will too, even though most of it is too blind to appreciate the fact or even realize they are gone. Except for the many dollars of state revenue that will be leaving with them.
Quote from: heironymouspasparagus on March 02, 2011, 10:07:37 PM
I have friends (believe it or not....) who are planning to leave Ok very soon just because of these types of things here in the state. Both gay, both sick of the pathetic bigotry and discrimination and the general BS attitudes expressed by this state toward "their kind". They will be a big loss to the state, since they are just the kind of upper middle class professionals who actually support this place with their taxes and contributions to the companies they work for. Between the two, they pay more than any 10 to 15 of the typical "bubba homophobe" we got here. Think Randy Terrell. Think Sally Kern. Jim Inhofe.
It's a shame. I will miss them a great deal, and the state will too, even though most of it is too blind to appreciate the fact or even realize they are gone. Except for the many dollars of state revenue that will be leaving with them.
I hope they will be happy where ever it is they are going.
It may be Canada, or somewhere in Europe.
Reform bill is killed. I think we can all breathe a sigh of relief this sham pile died.
OKLAHOMA CITY -- A coalition of Democrats and wary Republicans derailed lawsuit reform in the Oklahoma House Tuesday afternoon, voting down an amendment that caused leadership to withdraw the legislation entirely.
The bill set the hard cap for non-economic damages -- so-called "pain and suffering" -- at $350,000, a move lawsuit reform proponents say is necessary to prevent unwarranted judgments.
A Senate version of the bill would cap such damages to $250,000.
Democrats have generally opposed such caps, claiming they are unfair to individual plaintiffs. On Tuesday, they were joined by Republicans who argued the caps violate the U.S.Constitution's guarantee of jury trial.
Read more from this Tulsa World article at http://www.tulsaworld.com/news/article.aspx?subjectid=12&articleid=20110315_12_0_OLHMIY125840
The republicans flopped and it passed. No lobbyists involved on that one...
Quote from: Townsend on March 16, 2011, 10:37:57 PM
The republicans flopped and it passed. No lobbyists involved on that one...
I saw that. FAIL
Quote from: Conan71 on March 16, 2011, 10:59:38 PM
I saw that. FAIL
One of the failingest fails that ever failed a fail.
Quote from: Townsend on March 17, 2011, 09:10:54 AM
One of the failingest fails that ever failed a fail.
Channeling Dr. Seuss?
Fallin signed off on new tort reform.
QuoteHouse Bill 2128 places a $350,000 hard cap on non-economic damages. Senate Bill 862 eliminates joint and several liability sometimes known as the "deep pocket" rule, where each and every defendant in a tort lawsuit is liable for the entire amount of a plaintiff's damage, regardless of their degree of fault.
And Senate Bill 865 requires that juries be instructed in civil cases that no part of an award for damages for personal injury or wrongful death is subject to federal or state income tax.
http://www.krmg.com/news/news/local/fallin-signs-landmark-lawsuit-reform-bills-law/nCHqp/
I think Bill 862 will have the biggest impact.
Quote from: guido911 on April 05, 2011, 08:21:37 PM
Fallin signed off on new tort reform.
http://www.krmg.com/news/news/local/fallin-signs-landmark-lawsuit-reform-bills-law/nCHqp/
I think Bill 862 will have the biggest impact.
I think it'll have the impact of restructuring some businesses to avoid liability.
"Loser pays" coming to Oklahoma?
QuoteThe success of 'loser pays' is destined to be viewed as a key victory for the Republican legislature over a group that once enjoyed almost limitless influence in the state: the Texas Trial Lawyers Association, which lobbied aggressively against the law. Prior to the reforms instituted in 2003 and 2005, Texas was an ambulance chaser's paradise. Nowadays, even the $13 million the trial lawyers spent to defeat Perry and other pro-tort-reform Republicans in the 2010 election had little impact. In a stunning rebuke, Lt. Gov. David Dewhurst stared down the trial lawyer lobby and shepherded the measure through to a 31–0 vote in the Senate.
Perry is blazing an important trail for other governors such as South Carolina's Nikki Haley, Pennsylvania's Tom Corbett, Florida's Rick Scott, Oklahoma's Mary Fallin, and Alabama's Robert Bentley, all of who ran and won while proposing similar legal-reform ideas.
Why are these types of reforms so important?
The cost of tort litigation is strangling the U.S. and small businesses in particular. According to Marie Gryphon of the Manhattan Institute, the cost of tort litigation topped $247 billion in 2006. The National Federation of Independent Business estimates that tort litigation costs small businesses over $105 billion annually, $35 billion of which comes out of their pockets, not insurance.
'Loser pays' reform will result in fewer frivolous lawsuits, lower litigation costs, and more expedient justice for legitimate claims. Just as important, the passage of loser pays is yet another example of how Texas has taken the national lead in job creation and the fostering of a strong business climate. Immediately following Perry's earlier reforms, the number of physicians applying to practice rose by 60 percent, filling a increasing need across the state, according to the Journal. Likewise, by tossing off the threatening shroud of frivolous lawsuits, Texas is removing yet another barrier to small business expansion and job growth.
http://www.nationalreview.com/corner/268436/loser-pays-texas-small-business-wins-stephen-demaura
Quote from: guido911 on June 04, 2011, 10:54:59 AM
"Loser pays" coming to Oklahoma?
Better pick your clients carefully.
Quote from: Red Arrow on June 04, 2011, 11:08:02 AM
Better pick your clients carefully.
You are not kidding.