Editorial

The People Haven Spoken

 

The public has caught on! It has recognized tort reform for what it is: An attempt by the liability insurance industry, product manufacturers, and the medical establishment to transfer the costs of their negligence from themselves to the taxpayer.

In the past eight years voters in four states have rejected sixteen different ballot initiatives that would have restricted their right to access to the court system. We must remind legislators, both state and federal, that when the people are asked if they want "tort reform," they vote "NO."

Those who seek to radically change the justice system have the burden of proof, they must prove two things: That there is something wrong with the current civil justice system; and that their reforms will fix the system. They have not met the burden of proof in either category. Indeed, they have failed miserably with the public. For example:

1988

California: Proposition 101: Would have reduced bodily injury liability rates in auto cases by 50%, capped damages and limited contingency fee contracts.

Rejected 86-13%

Proposition 104: Would have enacted a no-fault automobile insurance system, reduced rates by 20% from those in effect on election day and limited contingency fees in automobile cases.

Rejected 74.4-25.3%

Proposition 106: Would have limited contingency fees in all tort cases to 25% of the first $50,000 award, 15% of the next $50,000, and 10% of any amount over $100,000.

Rejected 53.3-46.7%

Proposition 103: Allowed an insurance rate increase if the insurance commissioner finds that an insurer is threatened with insolvency. It also removed the state’s anti-trust exemption for insurance companies and allowed banks to sell insurance. The provision also required that insurance companies base automobile rates on the consumer’s driving record, number of miles driven, and numbers of years driving experience.

Passed 51.1-48.9%

Florida: Amendment 10: Would have placed an arbitrary cap of $100,000 on non-economic damages in all tort cases.

Rejected 57-43%

1990

Arizona: Proposition 105: This proposal would have changed the Arizona Constitution and permitted limits on the right to sue and collect damages.

Rejected 83-17%

Proposition 203: This proposal would have implemented a "consumer choice" no-fault plan with no threshold limits on the right to file suit for those choosing the no fault option.

Rejected 85-15%

1992

Michigan: Proposition B: This proposal would limit medical benefits under automobile insurance policies to $1 million, but allow the insurance industry to sell additional coverage for expenses exceeding $1 million.

Rejected 62-38%

1994

Arizona: Proposition 103: There is language in the Arizona constitution that prevents the legislature from passing any law that would restrict the right to recover damages. If this initiative had passed, it would have allowed the legislature to cap damages and limit the right to a jury trial.

Rejected 61-39%

Proposition 301: The proposition would have required periodic payments, abolished the collateral source rule, allowed insurers to have unlimited access to hospital/physician records, and adjusted comparative fault so that plaintiffs who were more than 50% at fault were not entitled to damages.

Rejected 62-38%

Michigan: Proposition C: This proposal was identical to Proposition B which was placed on the 1992 Michigan ballot.

Rejected 61-39%

1996

California: Proposition 200 would have imposed a pure no-fault automobile liability system and done away with existing fault based system.

Rejected 65-35%

Proposition 201 would have limited the rights of shareholders to file derivative suits against the corporations in which they owned stock.

Rejected 59-41%

Proposition 202 would have limited the amount an attorney could receive under a contingency contract.

Rejected 51-49%

As stated by ATLA president Pamela Liapakis in the May 1996 issue of Trial, the proponents of these initiatives, the insurance industry, the medical industry, and big business, "clearly need to take a remedial civics lesson." Thomas Proulx, a co-founder of Intuit, Inc., a software manufacturer, was chairman of the campaign pushing the 1996 California anti-consumer measures. He was quoted after the vote as saying, "I’m really disappointed in seeing how democracy works in America."

Fortunately the people understand how democracy works and that their voice, whether it is in the voting booth or in the jury box, counts. People are the ultimate arbiters of public policy, and they have spoken loud and clear on tort reform issues over the past eight years.

But even as voters have turned back these measures, politicians on the National level were ignoring this message and trying to supersede the judgment of citizens in the states. There is pending in Congress now changes to state medical malpractice laws, including caps on damages, which are part of the House Healthcare Bill that passed in late March and is now before the Senate. Other legislation approved in the House and now pending in the Senate would restrict the rights of people injured in railroad accidents. Another proposes to eliminate the rights of injured seamen.

The messages from California, Arizona, Michigan and Florida have been ignored by legislators on the federal level, including both of our Senators and some of our Representatives. All of us who represent consumers have a duty to our profession and to our clients to do the following: make sure that our state legislators and members of Congress understand how voters feel about these bills; help these legislators understand the importance to the people of their rights of access to redress the wrongs inflicted upon them by wrongdoers, however powerful; and make clear that the proponents of these so-called reform measures are really attempting to transfer to all of us the cost of their negligence.