Hypothetically Speaking......
The Rock Island Argus/Dispatch prints one of the craziest, most rambling, incredulous editorials I've read in a long while, and that's saying something. Their jihad against pending legislation that would prevent the insurance industry from opening a loophole in Illinois' civil laws reads like a verbatim press release from the Illinois Civil Justice League from start to finish, and they probably should have charged them their standard advertising rates for it.
The most embarrassing passage from the entire piece is this:
Consider this scenario offered by the Illinois Justice League, which has launched a campaign, DeepPocketsIllinois.com, to oppose the measure:"Imagine that while traveling home from Springfield you get hit by a drunk driver. Neither you nor the other driver is injured, but a passenger riding with the drunk driver is thrown from the vehicle and severely injured. To add insult to injury, the drunken driver has no insurance.
"Although you were minimally at fault, the lawyers for the injured passenger settle out of court with the drunk driver. Now they are suing you for the full amount of damage. It doesn't seem fair that you and your insurance company should be on the hook for the full amount of damages, when you were only minimally at fault. Unfortunately, if the trial lawyers successfully pass 1296, situations like these could become typical civil procedure in Illinois courts."
Hold it right there, guys.
First, when was the last time you saw an editorial board advertise the website address of an interest group in its editorial? Never, maybe?
When was the last time you saw an editorial board provide a 127 word verbatim quote (six direct quotes in all) of a registered special interest group in an editorial? Never, maybe?
Finally, the bogus hypothetic question. When in Illinois do they think that a jury of 12 people is going to award a penny to someone dumb enough to get into a car with a drunk, unlicensed driver, then ram another car, and blame the driver whose car they hit? How about a lawyer dumb enough to take that case, knowing they'll never get paid? Never, maybe?
The Illinois Civil Justice League's hypothetical question might as well have started out "Imagine while traveling home from Mars...."
I've got a better hypothetical question:
Imagine the Illinois Civil Justice League -- backed by the Insurance Industry -- has given $2 million to Republican candidates over the last decade.
Imagine that the biggest business in Rock Island, John Deere, has given $200,000 to Republican candidates over the last decade.
Imagine that one of the biggest purchasers of advertising in the Rock Island Argus/Dispatch is that region's largest employer, John Deere.
Finally, imagine that both John Deere and the Illinois Civil Justice League wanted to prevent Democrats from closing a legal loophole (being created by activist judges) that would benefit insurance companies and big businesses -- at the expense of injured every day citizens -- and maybe even help elect a few Republicans in the process.
Hmmm....I wonder who John Deere and the ICJL could call on?
Sadly, that's not to hard to imagine at all.
The phone numbers for the Rock Island Argus/Dispatch can be found here.
[Hat Tip, CapitolFax]
32 comments:
Could you explain how forcing someone to pay for more damage than they caused is somehow fair?
If the jury finds you a percentage at fault, you should pay that percentage. That seems reasonable to me.
Anonymous -- I did answer the question. I said no responsible person could make a determination about an open case until they had all of the facts. There were many facts I pointed out that i didn't know in the case which i think could be relevant; if you want to go dig up the answers and get back to us, that would be great.
Skeeter, great question. Our civil justice laws parallel our criminal justice laws.
Imagine your the driver in a bank robbery. While your outside the bank, someone inside gets shot. Because of the major contributory role you played in the crime, guess what? You're now on the hook for murder, even though you didn't pull the trigger.
Under our civil laws, contributory negligence works the same way. If you play a major contributory role in a case that ends in someone's death or injury, you're on the same hook as everybody else.
What big business wants to do is essentially have us take that 25 year murder rap and divide it up four ways, or even better, say "Hey, I was just the driver." The problem with that approach is they played such a big role, if it weren't for their actions, the victim would still be alive.
Make sense?
First, the tort system does NOT parallel the criminal justice system. They are very different, from the basics like the burden of proof to the more complex such as some of the rules of evidence.
Your analogy does not make sense because it ignores the fact that in the bank robbery, the robbers actually worked together for a common goal. In your average truck accident, the two vehicle drivers didn't get together beforehand and plan the event.
The idea of the tort system is to compensate people for injuries caused by people who a jury finds to be at fault.
The idea of the criminal justice system is to punish those for wrongdoing.
If someone is part of a group that robs a bank, then each member of the group should be treated the same. They worked together on purpose to obtain a result. That doesn't happen in most tort cases.
If a drunk driver rear-ends somebody, and the jury find that the driver of the car that was rear-ended [victim's vehicle] is 1% at fault for not making more of an attempt to move out of the way of the drunk driver, then the plaintiff should be entitled to 1% from the driver of the plaintiff's vehicle.
You are entitled to compensation for the percentage of the damage caused. That seems like justice to me.
It sure does not seem to be justice to make a person pay $20 million for a quad case when the person did nothing more than fail to escape the path of a drunk driver.
Skeeter, I think we'll have to agree to disagree on whether or not our notions of civil justice and criminal justice run parallel to one another. I agree that we have higher standards when it comes to criminal cases, but I think that's because criminal cases have a much harsher penalty -- from loss of freedom to loss of life, and so a higher standard is required.
I can see a long, common thread running through both our criminal courts and our civil courts extending all the way back to the earliest biblical teachings.
The purpose of our civil laws isn't merely to "compensate people". It is also to hold people accountable for the consequences of their actions, and ensure restitution. That's why many sections of our civil laws -- including portions that protect businesses -- aren't merely compensatory but also offer punitive damages, and it's also why we demand restitution for so-called "non-economic damages" like pain, grief, sorrow, loss of reputation, etc.
By the same token, our criminal laws aren't merely punitive. They also demand restitution or "repayment of your debt to society."
There is also an element of both that is meant to be a deterrent to future bad behavior. Unfortunately, our courts and our laws don't do a good enough job of enforcing existing protections. Few murders are actually prosecuted, so murder rates remain high. Few civil negligence cases ever go to trial, so negligent companies keep acting negligently.
Again, show me a case where a jury has ever awarded $20 million -- or even a penny -- to the passenger of a drunk driver from someone that they rammed into. Hypotheticals like this with absolutely no basis in reality are nothing but red herrings.
What really happens in cases like these? The passenger is screwed. They might be able to garnish future wages of the drunk driver who caused the accident (although the driver is going to argue it was your fault for getting into the car with me when you knew I was drunk), but they're probably going to end up on Medicaid for the rest of their life. Their certainly never getting a dime from the person they rammed into, and never $20 million.
Losing nearly everything you own is relatively minor to you?
Having a business forced into bankruptcy is relatively minor?
We do see things differently.
Further: Compensation for pain and suffering and loss of a normal life IS intended to be compensation. It is an attempt to put a dollar figure on those damages. That is compensation and not punishment.
Actually, YDD, it doesn't happen now because current law provides that if you are less than 25% at fault, you are only on the line for medicals. Over 25% and you get everything.
That is at least a marginally fair system, but the plaintiffs' lawyers want to change that so my hypothetical will become reality, if your friends have their way.
Ultimately, you have no interest in compensating people for the damage caused. If you did, then you would back a pure system based on percentage of fault. You don't back that system though.
To get back to my hypothetical: If a driver sees a drunk crossing the center lane, and the driver responds by swerving left while the jury believes the person should have swerved right, who is really at fault? Clearly the drunk driver. No drunk driver, no accident. A jury very could well find the driver of the second vehicle 1% at fault for that split second reaction, but should we bankrupt that individual or her company for that decision? Is that justice? That is the system that you advocate. You care more about compensating victims (and of course their lawyers) than in doing justice.
"I think we'll have to agree to disagree..."
- Translation: You have proven me wrong, but I refuse to accept it.
YDD--
I think a jury just might rule that way. My brother got rear-ended in a chain reaction acident during tollway construction. He stopped, the truck behind him stopped, the next guy didn't and hit the truck at high speed.
The truck then hit my van (doing no real damage).
Take a wild guess which of the above parties got the attorney and started sending letters to everyone else in the acident...
That's right the guy who hit the stopped truck at high speed. If there wasn't a chance of getting recovery on it (the letter from the attorney informed us he was working on contingency) the attorney would not have taken the case on recovery.
Also imagine the case he gave but one of the parties involved was a pepsi truck and the injured party was a young child. You don't think a Madison county (or other counties) would want to 'help' the injured party....
Then what about this, as I have blogged about before my wife is in health care and so she has malpractice insurance.
Lets say we come upon a car acident she renders assistance but the person still dies. The estate sues (since my wife is a 'pro' good smaratian does not apply) everyone involved, divers of the car(s) and my wife.
If my wife ends up the deep pocket but only ends up being found 1% responsible but the jurry rules for amount X, why should she (or her insurance provider) be on the hook for more than $10,000?
OneMan
Skeeter - Yeah, I don't think there's any comparison between losing your freedom and losing your money. I think that most people in jail would gladly pay a fine to get out if they could. Hell, back in the day, most people paid to get out of conscription into the military if they could too.
Ask yourself, given a choice between paying a $5 million jury verdict in a drunk driving case and going to jail for 10 years for a drunk driving case, which would you prefer? While money doesn't grow on trees, you can get it back. You can never get back ten years of your life.
Secondly, no one loses "everything they own." Tangible assets can be seized only up to a point, many are protected, and at some point bankruptcy kicks in (although big business is doing a good job of eroding bankruptcy protections).
I think there is a big difference between "compensation" and "restitution", atleast as "compensation" has been misused in this debate by the ICJL. They make the argument that big business shouldn't be liable for any non-economic damages, because you can't "compensate" someone for things that don't have an actual price tag.
That's why the ICJL is opposing HB 1798, which expands Illinois' Wrongful Death Act to allow compensation/restitution in wrongful death cases for the sorrow, grief, and mental anguish caused by the loss of a loved one to the victim’s immediate family.
Ironically, current law in Illinois allows restitution for grief in sorrow in wrongful death cases where someone kills your pet -- something I think you and I both support -- but doesn't allow the same restitution if someone kills your wife or child. Makes no darn sense to me, but perfect sense to the ICJL.
Oneman -
Thanks for sharing your story. Please complete it by telling us how much money was awarded to the guy who rear-ended everybody else, and who was forced to pay.
As for the example involving your wife, nothing in SB 1296 changes how joint liability is defined. If the jury finds your wife only 1% responsible, she'll only have to pay 1% -- after all settlement amounts are deducted from the jury award. You really should read the bill, and stop listening to the garbage your wife's medical malpractice insurance company is feeding her. After all, these are the guys that have been jacking up your wife's rates while they make record profits and their executives award themselves raises every year.
YDD,
You talk about the fact that losing liberty is worse than losing money.
Tell that to the person who spent thirty years building a business, only to lose it all because a driver for the company responds to a vehicle that crosses the center line by swerving right rather than left.
Thirty years of hard work down the drain.
You don't think that is a major loss?
Moreover, to lose your liberty you are required to have done an act intentionally. You choose to rob a bank. You don't need to act intentionally to lose everything in a personal injury lawsuit.
If you want to require that acts be intentional in order to provide tort liability, I am all for it. That's not the case though. Tort law usually requires a far lower standard of negligence.
As long as the plaintiffs' bar continues to ignore justice and to attempt force people to pay for damage they have not caused (and in doing so, line their own pockets at 40% per case), then they will continue to be viewed as concerned only with dollars and not with justice.
By the way, the following is not really correct:
"If the jury finds your wife only 1% responsible, she'll only have to pay 1%."
If the responsible party (the 99%) settles out, then under the bill that party's fault is never considered.
As such, rather than having a fair verdict in which each of the partys' fault is taken into consideration, the only fault taken into consideration will be the ones left standing at the time of trial.
As a practical aspect, the plaintiff will take minimal amount from people with few assets just to get them off the verdict form.
That's why this matters so much to the plaintiffs' bar.
Ydd - Skeeter,
I am not an attorney but skeeters reading is how I understand it.
As for the acident, I don't know how much if anything the guy got from the truck he plowed into. The fact the attorney felt he could get anything blows my mind.
As for the second example no I haven't heard from her insurance provider on this at all. My concern is that in the case the odds are there may be the 'empty chair'
Even reading the anti website (the one linked on Rich's page) it appears the issue is that if you don't settle out of court you may end up paying less.
Heck I think more of this stuff should in fact be litigated.
Skeeter, as a small business owner, if I was given a choice between losing a business it took me 30 years to build and spending the next 30 years of my life in prison, I'll keep my freedom. This again may be one of those things we just have to disagree upon.
As to your example, please explain to me under what theory of negligence the owner of a company would be held financially responsible for the actions of a driver attempting to preserve his own life in response to the wreckless driving of a third party. Is this an actual case you are aware of, or another hypothetical?
Skeeter, what I said was absolutely correct, but I think folks will always find themselves in trouble trying to craft legislation around hypothetical problems. Show me an actual case where a doctor responded to a life-threatening injury while on the scene of an accident that they did not cause, and a lawsuit ensued where the doctor was held solely responsible.
I'm not a lawyer, but I've got to believe that since this has been the law of the land in Illinois for the last 21 years, if it was going to happen by now, it would have happened by now.
All of these hypothetical arguments being made by those who support opening a loophole for wrongdoers (let's keep in mind, a jury has to find you actually negligent) underscore what I've been saying all along. They can't come up with any real examples because there aren't any real examples its all made up.
Not surprising though, since for two years during the medical malpractice debate, consumer groups challenged insurance companies to provide even one example of a frivilous lawsuit that resulted in a multi-million dollar settlement or verdict. Guess what? They couldn't do it.
When do juries award multi-million dollar verdicts? When a doctor sews a surgical tool up inside of you, resulting in permanent injury. When an anesthesiologist ignores several pages to the E.R., because he's spending some conjugal time with his nurse/girflfriend, and a child is born severely retarded as a result. When hospitals switch medical records and amputate the breasts of a perfectly healthy woman.
And yes, sometimes even when the jury learns that a restaurant has been super-heating its coffee, to increase the aroma and cut down on how much they have to spend on coffee beans, and without regard to the safety of its customers. As a result, when a woman's coffee spills in her lap, she doesn't just end up with a drycleaning bill, she ends up with second degree burns on her thighs and sex organs.
OneMan -- I'm shocked to think that an attorney thought he could get money from those other drivers too. My bet is that he didn't, and if he's still running his business that way, he's not in business any more.
You don't stay in business very long working on contigency if you waste all of your time filing cases you can't win, just like you don't stay in the sales business very long chasing leads you can't close.
There was a fascinating article written a couple of years ago by Crain's Chicago Business of all publications, that really dispelled the "ambulance chaser" myth. A reporter looked at about 20 calls that one of the downtown trial attorney firms had received over a week from people seeking representation. To most laymen, they seemed like just the kind of cases that an "ambulance chasing trial lawyer" would go after. Serious ijuries, sympathetic victims, "deep pocketed" defendants. If I remember correctly, the law firm only took three out of the 20 cases. Why? Because they didn't think the other 17 were winnable on the merits, and they explained why. If I can find it on the web, I'll try to post it soon. Fascinating read.
I'm not saying that all lawyers are perfect, they are just like any profession. But I don't think we should turn the entire legal system on its head and curtail the rights of all victims because of a few bad apples.
YDD,
To go to jail for 30 years, you need to do a pretty serious crime.
To lose your business that took you 30 years to build, you potentially swerve right rather than left when a drunk driver crosses into your lane.
Does that seem reasonable? That is what your plaintiffs' bar friends want to do.
With regard to my suggested fact pattern: That sort of fact pattern occurs routinely. The plaintiff will sue oncoming driver and also will sue own driver. The allegations are the typical. The plaintiff will then hire an expert who will cook up stories about reaction time and claim that people should always be aware that drunk drivers might cross the center line and as such, people should always know just which way to move to avoid them. That sort of argument is routine (especially in bus cases for reasons I'm sure you understand). The plaintiffs' bar knows that if the jury sees a badly injured plaintiff, they are likely to find against any defendant, regardless of fault. That's life in the Big City.
Finally, you keep asking for examples. The problem with that is that the plaintiff's bar is seeking a change in the current law.
Under the law as it stands now, everyone goes on the verdict form. The jury evaluates fault based on everyone who has been or could be sued. You want to change that rule (and for the sole reason of evading the 25% rule).
With regard to One Man's example:
The form allegation would be that the drivers "stopped suddenly and without warning."
Whether or not suit would actually be filed is questionable, but I have seen similar claims.
Skeeter -
You are incorrect about settled defendants appearing on jury forms in Illinois currently. State Senator John Cullerton asked the defense bar to produce even one such jury form nearly two months ago, and they still can't find one.
Don't take my word for it? Here's their website. Call them and ask them to scan one in and e-mail it to you. Let me know what they say.
Secondly, under current illinois law, if you rear-end someone, it's never the guy in front of you's fault. You're cited for tailgating, period. Now, if someone from behind rammed you into them, you can shift the blame to him (he must've been tailgating, right?), but you can't EVER shift the blame to the person in front of you. Ask a cop.
1. Give me some time and I will try and dig out one of those verdict forms. I don't know about Sen. Cullerton's request. I will have to look into that. It sort of begs the point though: If the bill is not intended to change the law, then why bother with it?
2. With regard to the second part: You are way off. I don't have the cases in front of me (but I can dig them up), but suffice it to say, yes, you can claim that the person in front of you "stopped suddenly and without warning" and you could collect on it if you could prove it.
Whether or not a cop will buy that is a different matter, but, as I noted above, it doesn't really matter since:
a. Civil and criminal matters are very different; and
b. Tickets are not admissible unless there is a guilty plea.
YDD,
This is from the State's web site, as an explanation of the bill in question. I would appreciate it if you could advise as to what YOU believe the purpose of the bill is:
"Provides that the apportionment of fault under the joint liability Section only applies to the parties still remaining in the case at the time that a final determination is made by the trier of fact and does not apply to the defendants or third party defendants that have been dismissed for any reason, including settlement."
Skeeter: Please give the names and case number of the case you presented. And examples of real people and business' that were affected by the scenario you described. If what you say is true, it is scary and unjust. This situation must be fixed. If you can't come up with these facts then I think you need to either go to Confession and demand some real pennance from your priest, or stop reading insurance company propaganda.
Oracle,
You are actually suggesting that I am going to lose my soul because of an argument over whether a person who strikes another from behind is strictly liable?
That has to be one of the most sick and perverted views of religion that I have ever heard.
Apologize for that statement and I will be happy to provide an answer. However, if you wish to argue in the Taliban-esqe fashion that you have chosen, don't expect any response at all.
Skeeter: You have spun a hypothetical scenario to try and get us to believe your deluded point of view. I find that dishonest. You are attempting to spin around my advice to you as some extremist religious point. That also is not true. You post the actual facts of the case or cases yor site as examples for your opinion and I will gladly apologize. I will even post your comment on my blog. Till then I will have fun making up my own scenario about this. A bald gur was rear end and got sued. The person that rear ended him was blinded by the sun glaring off his shiny head. The jury agreed that the bald man had a shiny head. They found him at fault and awarded the rear ender 654 million dollars and a new Chevy truck. The bald man was also ordered to join the hair club for men.
There. That's about as believable as the fantasy you made up Skeet.
Oracle,
I don't see an apology above.
By the way, you are wrong on the merits. I know exactly what I am talking about.
Apologize for being rude and for using religion to insult me and I would be happy to provide a list of about six published opinions proving my point.
It is your choice.
I read the bill over again.
It is badly worded.
There are two possible interpretations, both of which are pro-plaintiff.
One is that settled defendants do not appear on the verdict form at all. That is bad, but at least then the jury may allocate fault to the plaintiff rather than to the defendants, if the jury sees fit.
The second is that all parties appear on the form, but the decision on joint and several only applies to the defendants and not the plaintiff. That would be a pure gift to the plaintiffs, since the contributory negligence of the plaintiff would be reduced by the percentage allocated to the settled defendant, but the settled defendant would not factor in to whether the defendants meet the 25% barrier.
Skeet: I absolutly refuse to apologise for advising anyone to receive one of the Blessed Sacraments.
Oracle,
There is a difference between "Go to confession you liar" and "I hope you enjoy Mass."
You tried to use religion to insult me and we both know it. It is a shame that you will not acknowledge it, as your comments are clear as day. It is of course ironic also.
In any case, if you want an answer, you have to act like an adult and ask me nicely.
Until then, enjoy wallowing in your ignorance.
It is obvious Skeeter is waiting for one of his deluded right wing friends to supply him with an answer. Until then he will continue to evade.
Stay in the dark, Oracle.
Act like a grown up, get an answer.
Apologize for your comments and I will provide you nine case proving my point.
But you have to ask nicely.
O.K,
Despite the fact that Oracle is a classless Taliban-esqe creep, I've decided to start the list of cases holding that a person who rear-ends another is not necessarily liable (and under certain circumstances may be able to prevail).
The list starts with Casey v. Pohlman, 198 Ill.App.3d 503, 555 N.E.2d 1221 (1990).
If people still have doubts, I can add the eight other cases that I have at my finger tips, but if the request comes from Oracle, there will have to be an apology with the request.
Case number two (Proving my point, and that Oracle is a classless Taliban-esqe creep):
Burns v. Greezeka, 155 Ill.App.3d 294, 508 N.E.2d 449 (2nd Dist. 1987).
Anybody care for the others?
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