OK Senate votes to restrict pain and suffering awards

[guido911]

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.

[guido911]

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.

[nathanm]

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?

[Red Arrow]

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

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.

[nathanm]

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.

[guido911]

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.

[swake]

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

[Red Arrow]

CF,

I am not trying to discredit your example, only to clear it up for myself.

Under 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.

[Red Arrow]

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?

[cynical]

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.  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.

If that is so, then I agree it's wrong.  What if the payer goes bankrupt?

[guido911]

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:

Evidence 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?

[heironymouspasparagus]

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.

[Conan71]

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.

[SXSW]

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.

[guido911]

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...