The Durham Bus Company recently announced that they will pay for the funerals of six children who died as a result of a school bus crash in Chattanooga. In addition the company will pay for counseling, hospital expenses, travel and medical expenses for children injured in the crash for up to six month. Good news for the families of these children, right? Well, sort of, but is it enough? Has justice been done?
Even if these victims file a lawsuit, and even if they are eventually compensated, nothing can replace/repair the loss of a loved one. To add insult to injury, the victims will be denied full adjudication by a jury of their peers. Why? Because Gov. Bill Haslam signed the Tennessee Civil Justice Act of 2011. While a jury can determine economic damages, the ruling applies a $750,000 damages cap on non-economic damages – pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, and other unquantifiable losses – in all personal injury awards. For these families that says that a child’s life is worth no more than $750,000. Is that “justice”?
Lawsuits are important safety tools employed by citizens to hold wrongdoers accountable. In fact, lawsuits are probably America’s most important safety tool. They are a measured attempt at reasonable compensation for catastrophic injury; they are the only way for a victim to seek redress for the damages inflicted, the only way to right a particular wrong.
A jury’s responsibilities are to hear the case and to reach a consensus about the facts. As the triers of fact in a courtroom, the jury is in the best position to determine what those losses (serious injury or wrongful death) are worth in the form of compensatory damages. Each case is different. Should juries make these determinations on a case-by-case basis or should the legislature make a unilateral decision that all cases are worth no more than $750,000?
Apply this reasoning to the case at issue here; how can Haslam or any legislator look at the parents who lost children in this bus crash and tell them that the legislature decided that their children’s lives are worth an artificially determined fixed, low, number? When writing, discussing and passing this bill, did any of these legislators (who, by the way, are supposed to represent the people, not the insurance companies) stop to think what their own children’s lives might be worth under similar circumstances?
Tort reform is a corporate bailout to insurance companies and other industries; it amounts to a legislative sell out of the citizens that the legislature swore to represent. This sell out isn’t limited to injury victims because when private insurance does not pay what it should, the expense is passed on to the taxpayer through entitlement programs. Why should a vastly wealthy insurance company get a bailout financed by taxpayers and victims? We fall for this charade because most of us have never been the victims of tragedy and we cannot appreciate the economic impact of, first, the tragedy and, second, the discovery that recoveries are limited under these types of laws. The injured citizen or the survivor of a deceased citizen is twice damaged.
The 7th Amendment to the United States Constitution guarantees the right to a jury trial in all cases over $25. Juries are constitutionally charged with the responsibility of determining damages and damages limits. It is not the constitutional function of any legislature or governor. These artificial caps on damages cost all of us money and the insurance companies are laughing at us, all the way to the bank.
Any of us are just one incident, one moment, one second from being a statistic, a catastrophically injured, under-compensated accident victim who must rely on some type of government (taxpayer funded) assistance to get by. To put it another way, imagine your child being killed at the hands of a negligent school bus driver. Would you want compensation based on an arbitrary number selected by a legislator in search of a campaign contribution? Or, would you want compensation to be decided by a jury of your peers based on their own assessment of the evidence?
If you believe that protecting your loved ones is more important than protecting insurance companies’ bottom lines, exercise your rights and lobby your state legislator to say “no” to tort reform.
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.