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Wednesday, 26 July 2017 00:00

The end of torts?

Written by Jonathan Druckman

After a decades long smear campaign, companies and insurers are finally seeing the results they have yearned for.

A tort is a civil wrong where one person causes another to suffer loss or harm that results in legal liability for the wrongdoer. The person who commits the tortious act, is often called the tortfeasor. Most tort lawsuits seek compensation for negligence via monetary damages. For example, a lawsuit seeking money for personal injuries caused by the negligence of another is a tort. For decades, insurance companies, trade unions, and other businesses have attempted to turn public opinion against plaintiffs who chose to file tort claims. The reason? These companies are often on the receiving end of the plaintiff’s lawsuit! Tort lawsuits now represent less than 5% of all civil filings in state courts. Larger corporate plaintiff’s (such as banks foreclosing on homeowners) now represent close to 50% of all civil filings in state courts.

In 2015, fewer than 1/500 people filed tort lawsuits for civil wrongs. That number is down from almost 1/100 Americans filed tort lawsuits in 1993. A number of different factors are likely the cause in this dramatic decline. One reason that these claims are being eliminated is due to the fact that state legislatures are influenced by the powerful insurance and corporation lobbies to limit their exposure. Additionally, advances in auto safety technology has helped reduce the extent of injuries that victims in motor vehicle accidents sustain. Perhaps the reduction is also due to the expensive and time-consuming nature of litigation. Whatever the reason, insurers are not complaining about this recent trend.

The strongest opponents of tort lawsuits often portray plaintiff’s lawyers as drags on the economy that use up precious time and resources of the courts. Yet, after an auto accident, insurance companies will often offer zero dollars for compensation regardless of the injuries despite the monthly premiums they collect. Only once a lawsuit is actually filed against them, will the insurance company begin to negotiate and offer fair compensation for an individual who was injured at no fault of their own. It seems hypocritical that the very companies that are demanding fewer torts, are the ones refusing to offer a dime until a tort lawsuit is filed against them! Fewer payouts to injured customers, means greater profits for insurance companies and their C-suite executives.

Despite the picture painted by the media about the number of frivolous tort lawsuits, at its peak percentage, only 20% of tort cases represented the total civil filings in state courts.

Professor Anthony Sebok, a professor at the Cardozo School of Law in New York had this to offer:

“We as a society seem to be OK with plaintiffs when they are debt collectors coming in and using the court system more than they used to, but we somehow instinctively think it’s a bad thing when victims of accidents come in and do the same thing.”

With increasing costs for expert witnesses and capped damages in medical malpractice cases, legislatures have limited the upside for plaintiffs. Rather than seeking to compensate individuals for the harm inflicted on them the imposition of an arbitrary damage cap just shifts the burden to the injured party. Many plaintiff’s lawyers are finding it difficult to afford to represent retirees or unemployed people because of the lack of a lost wages claim.

Check out our other article on the GOP Healthcare Bill that seeks to set a national cap on pain & suffering damages in medical malpractice lawsuits at: http://www.dhinjury.com/firm-blog/item/34-personal-injury-medical-malpractice-caps

If you or a family member has been hurt due to another person’s negligence, call Druckman & Hernandez 7 days a week at 908-353-5850 to speak with an experienced attorney. There is never a cost to speak with one of our lawyers – call now to protect your rights!

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