Can we get some tort reform? Please?

[Obi Heed Kenobi]

The insurance carrier is subrogating here - they have to sue in the name of the insured, because the person was injured, not her insurance carrier, and the presumptive wrong-doer did not harm the insurance carrier- they harmed the insured.

Right.

It's not the case everywhere, but here (Colo.), you can't sue an insurance company directly. You have to sue the insured.

So if Jim and Jane are in a car accident, it's Jim v. Jane, even though in reality State Farm insures Jane and will be paying any judgment and calling all the shots. If Jim sues State Farm directly, it gets dismissed, potentially with sanctions. Kind of silly, but them's the rules.

 

[Obi Heed Kenobi]

I can see tort reform is NOT going to come from the attorney-class.

What kind of reform do you want to see?

I'm 100% in favor of certain reforms. Some procedural changes for starters.

I'd also consider (I haven't really thought it through, just throwing it out there as an idea) supporting a change in the burden of proof. For those that don't know, in civil lawsuits the burden is "preponderance of the evidence." Translated, that means if the jury is 51% sure that the defendant was responsible, the defendant pays. That ain't much of a standard, if you ask me, and isn't much better than flipping the proverbial coin.

Should the standard perhaps be "clear and convincing," which is, say, 75% sure on the part of the jury? Maybe even "beyond a reasonable doubt" (call it 95% sure)?

 

[alaskaflyer]

No...the purpose of the civil law system is to make victims whole. It's the purpose of the criminal law system to punish bad behaviour.

Using the civil law system for punishment bypasses the protections inherent in the criminal system for the accused, like presumption of innocence and the "beyond a reasonable doubt" standard.

Using the civil system for punishment is a perversion of the legal system.

The criminal system with only one or two exceptions has no provisions for punishing mere negligence. That is left to torts and other civil theories. I'm unsure if you are advocating or stating but the English civil system very much stands to steer behavior. Punitive damages anyone?

 

[JeffDG]

The criminal system with only one or two exceptions has no provisions for punishing mere negligence. That is left to torts and other civil theories. I'm unsure if you are advocating or stating but the English civil system very much stands to steer behavior. Punitive damages anyone?

Personally, I don't favour punishing for simple negligence. I think punitive damages are an anathema to the civil justice system, and are merely a method to bypass the burden-of-proof for the criminal system.

 

[Everskyward]

First - driving a car normally requires liabilty insurance. And her passengers chose to be in the car with a drunk driver.
Second - driving under the influence is a crime.

You've made HUGE changes in the underlying facts.

Not really. What I'm wondering is if the parents are normally financially responsible for the acts of their minor child no matter what age she is. Suppose the insurance is not enough to cover the damages?

 

[EdFred]

A four year old on a bicylce is the equivalent of drunk driving?

 

[Everskyward]

A four year old on a bicylce is the equivalent of drunk driving?

Are you responsible for your minor children's actions no matter how old they are? Just asking. I don't have an answer.

 

[EdFred]

I think in this case no one should be held resposible for anything.

 

[bbchien]

What kind of reform do you want to see?

I'm 100% in favor of certain reforms. Some procedural changes for starters.

I'd also consider (I haven't really thought it through, just throwing it out there as an idea) supporting a change in the burden of proof. For those that don't know, in civil lawsuits the burden is "preponderance of the evidence." Translated, that means if the jury is 51% sure that the defendant was responsible, the defendant pays. That ain't much of a standard, if you ask me, and isn't much better than flipping the proverbial coin.

Should the standard perhaps be "clear and convincing," which is, say, 75% sure on the part of the jury? Maybe even "beyond a reasonable doubt" (call it 95% sure)?

It would be BEST if the legal profession would tackle this. But failing that, the reform that will happen will be blunt, misguided, and have numerous unintended consenquences.

It's like, "Securities industry, regulate yourselves". Do it, or someone else will.

 

[Gary F]

Not really. What I'm wondering is if the parents are normally financially responsible for the acts of their minor child no matter what age she is. Suppose the insurance is not enough to cover the damages?

It probably varies by state.
According to the article that started this:
courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence
Therefore above this age presumably responsible. A capable attorney can often find somebody else (with money) to blame. If the judgment exceeds your your insurance they can come and take your stuff.

 

[Gary F]

It would be BEST if the legal profession would tackle this. But failing that, the reform that will happen will be blunt, misguided, and have numerous unintended consenquences.

It's like, "Securities industry, regulate yourselves". Do it, or someone else will.

I agree. The pendulum may swing too far in the other direction if reasonable changes are not made first.

 

[Obi Heed Kenobi]

It would be BEST if the legal profession would tackle this. But failing that, the reform that will happen will be blunt, misguided, and have numerous unintended consenquences.

It's like, "Securities industry, regulate yourselves". Do it, or someone else will.

I agree. The pendulum may swing too far in the other direction if reasonable changes are not made first.

I agree.

Start a campaign of "let's put someone who didn't go to Harvard/Yale on the Supreme Court, and obviously someone from Wake Forest who was at the bottom of the class makes the best choice," and you'll see some changes.

 

[Obi Heed Kenobi]

Personally, I don't favour punishing for simple negligence. I think punitive damages are an anathema to the civil justice system, and are merely a method to bypass the burden-of-proof for the criminal system.

I agree. Accidents happen. While we should be responsible for the consequences of our own faults, I don't think criminal liability is called for in the case of an accident.

Unfortunately, it seems that society disagrees. Which is actually, in my opinion, counterproductive - for instance, I want someone to stick around after a car accident, so if nothing else I can get their insurance info. I don't want that person to have an incentive to take off, which criminalizing unintentional but harmful conduct provides.

I could rant for hours on that, but I won't.

 

[AdamZ]

I agree. The pendulum may swing too far in the other direction if reasonable changes are not made first.

Hows this for a start

1) Require Certificates of Merit for malpractice cases of any kind, medical, legal, Accounting, securities etc.

2) Limit forum shopping by plaintiffs but also limit forum restrictions by defendants ( ie restrictions that make you litigate in some far off corner of South Dakota)

3) Provide Defendants with the ability to sue Planitiffs for filing frivilous litigation.

4) Provide for Sanctions upon attorneys for frivilous filiings where nature of the frivolity is served upon the attorney with opportunity to withdraw the filing.

5)Provide for sanctions upon defendants for unreasonable delay.

6)In Med Mal cases provide for additional damages in the form of a
Qui Tam award ( Pubic good- essentially award would go to a charity) where a verdict is entered against the Medical Provider AND where no reasonable settlement offer has been made AND when an M&M peer review finds the Doc Negligent/responsible. The Peer Review would only be disclosed IF the following conditions were met:
-No reasonable settlement was offered.
-Verdict was rendered against the Medical Provider.

 

[Gary F]

Hows this for a start

1) Require Certificates of Merit for malpractice cases of any kind, medical, legal, Accounting, securities etc.

2) Limit forum shopping by plaintiffs but also limit forum restrictions by defendants ( ie restrictions that make you litigate in some far off corner of South Dakota)

3) Provide Defendants with the ability to sue Planitiffs for filing frivilous litigation.

4) Provide for Sanctions upon attorneys for frivilous filiings where nature of the frivolity is served upon the attorney with opportunity to withdraw the filing.

5)Provide for sanctions upon defendants for unreasonable delay.

6)In Med Mal cases provide for additional damages in the form of a
Qui Tam award ( Pubic good- essentially award would go to a charity) where a verdict is entered against the Medical Provider AND where no reasonable settlement offer has been made AND when an M&M peer review finds the Doc Negligent/responsible. The Peer Review would only be disclosed IF the following conditions were met:
-No reasonable settlement was offered.
-Verdict was rendered against the Medical Provider.

Now I am getting nervous on how much I agree with an attorney.

If a certificate of merit system is used there must be some control on who can issue it. Otherwise these will be sold by an unscrupulous "experts". The court should appoint a panel of impartial experts depending on the type of case.

 

[Obi Heed Kenobi]

Now I am getting nervous on how much I agree with an attorney.

If a certificate of merit system is used there must be some control on who can issue it. Otherwise these will be sold by an unscrupulous "experts". The court should appoint a panel of impartial experts depending on the type of case.

I think what we'll ultimately end up seeing, many years from now, is a system similar to workers comp.

For those that don't know, the way workers comp operates is that an employer buys insurance; if an employee is injured while working, the employee gets paid by the insurance (for injuries, lost wages, etc.), but waives all claims against the employer as a matter of law. The insurer can also not claim through subrogation.

That's a very brief, and far from complete, overview. But it's the gist of it.

It has a lot of advantages (guaranteed fair compensation for bona fide claims, predictably for employers). There are some drawbacks, but I think the gains ultimately outweigh the losses.

Why not have something similar for medical malpractice (Richard was hinting at it as being the system in NZ/Aus.)?

 

[alaskaflyer]

Personally, I don't favour punishing for simple negligence. I think punitive damages are an anathema to the civil justice system, and are merely a method to bypass the burden-of-proof for the criminal system.

So you would prefer to have no recourse for a private cause of action for bad behavior, instead relying on the politics of a state attorney to do or do not?

 

[Bob Noel]

I agree.

Start a campaign of "let's put someone who didn't go to Harvard/Yale on the Supreme Court, and obviously someone from Wake Forest who was at the bottom of the class makes the best choice," and you'll see some changes.

pardon this tangent: Is the person graduating at the bottom of the class unqualified? Did not that person meet at least the minimum requirements for graduating?

 

[flyersfan31]

Again I'll ask, what insurance??

Would the parents homeowners insurance (if they are homeowners not renters) cover this??? I don't think so. Auto?? Again, I don't think so. I assume this would be covered by an umbrella policy but it is unkown whether the parents have one.

I conclude that it is Granny InsCo v. Parents. No parental insurance involved.

And going back to the facts at hand, are they not pursuing this case against the child?? Wasn't that the crux of the OP, that the judge found the 4.75 yr old could be guilty of negligence??? That is ludicrous.

SO, little kid, preschool tyke is guilty of negligence (!). Parents, named in the matter as the deep pockets, are guilty of negligence due to being negligent with their negligent 4.75yr old. OK.

Is this just a "check off the boxes" matter? Insurance company won't pay unless estate first tries to collect from "responsible party?" Estate tries to collect, kid can't pay, parents don't have umbrella or child negligence coverage, estate sez to insurance, ok, check the box, we tried, now pay us?

 

[JeffDG]

So you would prefer to have no recourse for a private cause of action for bad behavior, instead relying on the politics of a state attorney to do or do not?

I would prefer to be made whole in the event of simple negligence, which is the purpose of the civil law system. If it goes beyond simple negligence, that is the province of the criminal system to punish.

 

[Obi Heed Kenobi]

pardon this tangent: Is the person graduating at the bottom of the class unqualified? Did not that person meet at least the minimum requirements for graduating?

Not in my eyes, of course.

 

[Obi Heed Kenobi]

So you would prefer to have no recourse for a private cause of action for bad behavior, instead relying on the politics of a state attorney to do or do not?

Well, are we talking about getting rid of civil actions for negligent behavior, too, or just getting rid of criminal actions for negligence?

Here's how I look at it. Let's say it's an icy road, and I'm driving as carefully as humanly possible - under 30, no radio, no phone, 4WD, snow tires, the whole works. I get into an accident, and someone is seriously injured, maybe even killed.

That's going to result in criminal charges being filed. Period. For an accident. There may not necessarily be a conviction, but you're still going to go through the wringer (and I can't tell you how many times I've heard both police officers and prosecutors say, "well, he might not have been convicted, but sure had to pay out the nose for an attorney - ***k him"; how's that for professionalism?).

What on earth is the point, other than playing for blood?

Keep in mind that this isn't necessarily reflective of the law itself, but rather on the discretion, and more importantly the judgment, of those enforcing it.

 

[Ghery]

pardon this tangent: Is the person graduating at the bottom of the class unqualified? Did not that person meet at least the minimum requirements for graduating?

What do you call a person who graduates last in his class from medical school?

















Doctor.

 

[Gary F]

Well, are we talking about getting rid of civil actions for negligent behavior, too, or just getting rid of criminal actions for negligence?

Here's how I look at it. Let's say it's an icy road, and I'm driving as carefully as humanly possible - under 30, no radio, no phone, 4WD, snow tires, the whole works. I get into an accident, and someone is seriously injured, maybe even killed.

That's going to result in criminal charges being filed. Period. For an accident. There may not necessarily be a conviction, but you're still going to go through the wringer (and I can't tell you how many times I've heard both police officers and prosecutors say, "well, he might not have been convicted, but sure had to pay out the nose for an attorney - ***k him"; how's that for professionalism?).

What on earth is the point, other than playing for blood?

Keep in mind that this isn't necessarily reflective of the law itself, but rather on the discretion, and more importantly the judgment, of those enforcing it.

This is wrong and it has happened several times in my area. A lady hit a snowplow in a blinding blizzard and they sent the plow driver to prison because somebody thought he was too far over on the road. If alcohol, drugs or egregious violation of traffic laws are not involved I think it is a travesty to criminally prosecute somebody for a traffic accident.