Since jshore’s second post was in response to mine, I suggest that you go back and read mine. Not because it is a masterpiece to be enshrined for the ages, but because you also have an evidently overly-simplified view. In the annual reports from liability insurance carriers I have read, there has been no dramatic surge in claims. The increase in liability insurance rates is related in larger measure to investment losses than increased outlays for claim payments. A few notorious, over-reported, and occasionally chimerical anecdotes does not make a trend.
[smiling][laughing at myself][not seriously critical][oh yea, OT]Paperbackwriter, your’s is another username that makes me start singing a certain song, in my head, over and over again, Darn you. [meant as an attempt at humor (NOT A JOKE) to sort of lighten things up]
paperbackwriter,
Your post was nothing but an unsupported claim, so I did not need to address it. jshore purported to find supporting evidence for this claim, and it was this that I challenged. Since this evidence was merely related to the investment market and not to the liability portion it was based on a simplistic assumption that there was one cause for rising costs.
In case you do bother providing a source for your claim, I would note that what is being alleged is not a “dramatic surge in claims”, but a continuing rise, due to the continued increase in torts.
The investment issue is not unrelated to the tort reform issue, but for a different reason. As rates rise - for whatever reason - it becomes more important to find ways in which they could possibly be reduced.
Let’s put lawyer’s contingency fees back to the old standard of 33%.
Many lawyers now take half. The result is that the person who needs $1.5 million to provide a decent lifetime annuity for ongoing medical expenses/ living expenses due to another’s negligence has to ask for 6 million and settle for half to clear that necessary 1.5million.
Better yet, cap awards at the lesser of 1/3 the award or $250/ billable hour with a maximum cap of 250 hours. 75,000 ought to be an acceptable maximum. If juries knew up-front that a plaintiff needed 1.5 M to fairly compensate for loss, they could order $1,575, 000 damages and know that the plaintiff was actually coming away from the suit better off than the lawyer.
To discourage frivolous suits, allow lawyers to charge up to $ 20/hour in cases where there is no recovery, again with a 250 hour cap. This would compensate lawyers when clients won’t take their advice NOT to sue and insist on tilting at windmills anyway.
I fundamentally disagree with caps on awards, caps on insurance premiums or legislative immunity from tort. Such heavy-handed interference in the system is simply not warranted and likely to be quite counter-productive. If someone suffers hefty damages, why not compensate them for it? Insurance is a business like any other - if caps make it unprofitable, no-one will do it; and legislative immunites are guarenteed to lead to abuse.
Why bother with all of that, when there is an easier way?
Just adopt the costs rules as exists in Ontario - that is, loser pays a percentage of winners’ legal fees, and if the suit is vexatious or abusive, the whole amount. That ought to deter such lawsuits.
If the person suing is judgment-proof, let them put up security for costs. If they are poor, let them purchase some sort of contingent bond (that is, the bonding organization puts up the security, takes a percentage of the winnings if successful - and only offers the bond if they think the case has merit).
This provides disincentives against launching unlikely to succeed claims, without chopping deserving claims off at the knees.
Actually, I’m not even a pilot. But I stayed in a Holiday Inn last night.
And WRT the McDonald’s case, shoot, I should have elaborated but didn’t have time (as I’m at work). The cite does explain a number of factors ignored by the media, who trumpeted “MCDONALD’S LOSES LAWSUIT TO WOMAN WHO DOESN’T REALIZE COFFEE IS HOT!”. Hey, it sold papers.
This seems to presume that lawsuits that do not succeed are all frivolous, and the plaintiff should be punished. The fact is, most lawsuits have a legitimate question of liability that deserves the wisdom of a judge or jury. That is what the courts are for. To impose onerous responsibility for costs on all unsuccessful plaintiffs would have an unwise chilling effect on all lawsuits brought by persons with limited means. I can see why insurance companies and corporations would want such means testing for plaintiffs, as it would result in far fewer lawsuits, justified or not. But it would not be in the best interests of society at large, and would result in reduced product safety, degraded workplace conditions and professional misconduct that would be unchecked by the tort system. The occasional high award is the price we pay to maintain standards of safety and performance in the marketplace.
Zenith, Malthus your suggestions (NOT YOU AS INDIVIDUALS) are just silly.
Malthus you said
US Courts neither could nor should adopt this stupid rule. Our constitution states that everyone has the right to petition the government for a redress of grievances. It is stated in the very FIRST paragraph of OUR Bill of Rights. That means any “Looser Pays” system or a system requiring any sort of Bond to file (Notwithstanding our (IMHO) laws concerning corporate malfeasence) a law suit. If we adopted a looser pays system it would in effect inhibit our right to petition our government for redres of grievances.
Zenith: So you think 33% is enough. So what? Is this supposed to be a market economy based on Capitalism, or are you advocating Communism? If one lawyer wants to charge 99% what is to prevent a Plaintiff from going to another lawyer? You say 33% is enough, I just wonder why in your infinate wisdom you picked that number, as opposed to 34% or 22% or any random number you feel is appropriate? Isn’t this country supposed to be regulated by what the market will bare? Or is it supposed to bow to your interpretation of what is FAIR. (BTW What is FAIR ?)
Looking back, it appears that in my post I left out an important point that is in the FAIR cite that I linked to, namely that we have independent evidence that it is an urban legend, from Snopes:
Now, what is interesting about the way things turned out here is that you have provided evidence (by demonstration) for FAIR’s claim that printing the letter from the Trial Lawyers Association person is substantially different than printing a correction of fact since the readers are left to choose whom to believe when they are not told that an unbiased independent source has shown these to be urban myths. (In fact, unlike U.S. News and World Report readers, you even had the benefit of having the facts merely a mouse-click away and yet you were still left believing this.)
You seem to have missed this line in my cite:
I suppose one can question exactly what is meant by “did not track claims”. Maybe a rise in claims can account for some reasonable fraction of the premium growth. But, that is by no means clear from any evidence we have seen produced so far.
I don’t really see the point of your logic that we need to respond to growth in premiums by restricting the rights of people to sue even if this isn’t the primary cause but rather the cause is more poor investment decisions. Might a better policy to be to have tighter regulation on insurance companies so they are not free to make lousy investments and then pass the buck on to their customers? What might be happening here, for example, is that in times when the markets are good and the insurance companies are making money, they don’t pass this on in the form of lower premiums (perhaps because they assume customers won’t tend to switch insurance companies as long as their premiums are steady) whereas when markets are bad, the companies raise premiums to cover the costs of their poor investment decisions.
Here is a direct link to the relevant Snopes page. As the FAIR cite explains, the two “cases” discussed in the U.S. News and World Report editorial where 5. and 6.
That the stories cited were urban legends is not in dispute.
First, if a lawsuit does not succeed, by definition the plaintiff was wrong in his or her claims and ought not to have pursued it. What is so strange about that? The defendant was put to the cost of defending against a suit that ought not to have been brought. Similarly, if the plaintiff succeeds, the defendant ought to have settled. Someone has to bear the costs of litigation, and it ought to be the person who acted unreasonably, not the one who acted reasonably. Right?
Second, there are two standards for costs: partial and full indemnity. The winning party is only entitled to full indemnity if the suit (or defence) was indeed frivolous.
Third, I am, of course, assuming that over-litigation is in fact a problem. If it isn’t, there is no need of any reforms. If it is, this reform is IMHO preferable to setting arbitrary caps and the like.
Fourth, the fact is, most lawsuits settle. The number which go to court are a minority. Imposing a costs award rule ups the ante for going to court, encouraging settlements.
Fifth, product safety and the like, in which a large number of persons are allegedly injured (but for small amounts), are already handled through the mechanism of class proceedings. The notion that a costs rule will cut down on these to an extent that would endanger safety is absurd - although such suits have a “representative plaintiff” the reality is that they are lawyer-driven and lawyer-funded. Up here, where there is a costs rule, there is a provision in the legislation to excuse “deserving” cases from the operation of the rule; in the case of class proceedings, the representative plaintiff is inevitably indemnified by the lawyers funding the suit (and hoping for huge contingency fees!).
In the US, the system of incentives is out of wack, I think. Lawyers risk nothing but their time in launching multiple class proceedings; the victims must pay their lawyers real fees in order to defend themselves. If they win, the plaintiff-side class action lawyers stand to gain millions of dollars in contingency fees; if they lose, they shrug and start another. A costs rule would make the game more even.
This is not a fight between poor Mrs. Smith, injured by her coffeemaker, and a big soulless corporation. This is a fight between plaintiff-side class action firms and manufacturers/retailers, both of which are out for the cash. The end product is supposed to be regulation by the tort regime. If the incentives are weighted too heavily in favour of the plaintiffs, you get over-regulation – not good for the economy, or for Mrs. Smith, who has to pay more for her coffee machine.
The question is how much regulation you want. In Canada, we have a costs regime, and thus less litigation; but I have never heard that Canadians suffer degraded standards of safety and the like!
Gee, if that is your objection, why not just make suing the government an exception to the costs rule?
There. Problem solved, in one sentence or less! 
Laws are pretty complex for a reason; that is, humanity, civility, these notions related to governing (for lack of a better word) people are pretty complex ideas. As humanity grows/matures, it is just going to get more and more complex. That said: I didn’t really understand the OP, and I just lazily shifted through these messages, but I want to point out a couple of things:
a) in courts of equity, a bond may be required (depends on jurisdiction and nature of injunction); likewise, to contracting entites may require a bond of another to get an injuction
b) The gov’t cannot be sued in many, many, many situations. In fact, if I know my gov’t law correctly (which I may or may not), the US can only sued if it concedes by statute (or similar implication).
Ok, that is all, carry on…
For the record, I think tort reform is mostly bs anyway…
Anyone know what the situation is with respect to sovreign immunity in the US?
The thing that I’ve provided evidence for by way of demonstration is not something that was ever in dispute. Everyone would agree that there is a difference. But the question was which version is accurate.
I am aware that Snopes has acquired a high degree of authority on this website, but this does not mean that everyone else accords - or needs to accord - it the same level. (Interestingly, Snopes mentions the Daily News cite, but does not mention the Fort Worth Star-Telegram or the London Telegraph.)
I’m not saying that these stories actually happened. Only that it is not unreasonable to believe that they might have, and USN’s failure to issue a retraction is not necessarily evidence of a sinister Big-Business plot, as you would have us believe.
Exactly. What it presumably means is that it does not correlate as closely with claims as it does with the market. So it does not support your case.
Don’t switch from “markets are weak” to “poor investment decisions”. They are fundamentally different. As I noted earlier, poor markets are beyond the control of the insurance companies. The insurance company investments are pretty heavily regulated as it is. I’m not saying that there are not individual instances of poor investment decisions. But when an entire industry cannot - despite hiring the best professionals available - make a go of it it is silly to try to blame it on poor investment decisions.
This is a nonsense assumption. If it were possible to offer lower costs a lot of people would switch. (What do you mean “they assume”? Would they or won’t they? Take a stand here.)
Actually, the exact opposite is most likely true. When the markets are good, insurance companies can offset the costs of increased claims by recouping on their investments. When the market turns south, they have to make up for several years of increased claims at once, which results in steep premium increases and calls for reform.
(I note again your use - in the same sentence - of the terms “markets are bad” & “poor investment decisions”. Please be more careful about this.)
What do you mean, “most likely”? Are they or aren’t they? Take a stand here. Let me help you:
Well, at some point, shouldn’t they put-up or shut-up. Do you think that media outlets should be able to print any stories they want without retraction (and still enjoy some degree of respectability) because it cannot be proven beyond a shadow of a doubt that the things they claim happened did not happen? Mind you, they apparently can’t provide evidence that they did happen, nor can independent folks who have looked into it, but since we can’t prove that they didn’t then “Hell…it might be true.”
You might find this an acceptable policy for media outlets where you want to go for information but I don’t for the outlets I choose to consider to be respectable (and a bit of additional evidence that the “liberal media” theory is a crock of shit).
As for the rest of your post, we have provided a cite that talks about how insurance premiums correlate with market conditions and don’t seem to track “claims paid out by insurers”. I also linked to a cite that said this:
Now, admittedly, these cites have a point-of-view and this may be a somewhat biased accounting of the facts. I am willing to admit there is some deception going on on both sides. And, I would be interested to see if you find evidence contrary to what was presented in these links I posted but so far your argument seems to consist of, “Well, I think we should implement tort reform because I think it might possibly reduce rates.” Pardon us if we don’t find this a very compelling counterargument.
This is cute, but to be clear, my point earlier was that customers either would or wouldn’t switch, and it doesn’t make sense to focus on the company’s assumption without discussing the reality. (The “they” referred to people).
You posted your quote without comment, so I just want to clarify that it supports my supposition. If you disagree with this please elaborate.
USN just might feel that the respectable sources who published it are also “independent folks who have looked into it”.
Well you are a fine person whose lofty level we all aspire to but infrequently attain.
I don’t see the slightest connection here. But give it your best shot.
I am merely disputing arguments put forth by others. Contrary to what you’ve said I’ve not asserted positively that we should implement tort reform.
From your latest cite, the assertion that “States with little or no tort law restrictions have experienced approximately the same changes in insurance rates as those states that have enacted severe restrictions on victims’ rights” is, if true, a valid argument against tort reform. But I would want to look at it more closely. The other stuff about lowering rates is misleading because there could be any number of factors that impact rates, as discussed. Tort reform will at best make rates lower than they would otherwise be, which might still represent a year to year increase.
I’ll look around further if I get a chance.