Who Should Pay, and Who Should Decide How Much?

I’m spending most of my weekends getting ready for a civil jury trial scheduled to take place in April 2021. It will be my first trial post-Covid, and I’m honored and privileged to represent and advocate for my injured client against a company whose insurance company has been unwilling to offer my client a fair settlement.

As I prepare for trial, my appreciation for our American civil justice system grows. In about a month, eight citizens will be chosen to decide a dispute. These citizens will undoubtedly come from diverse backgrounds, differing educational levels, and could be male, female, black, white, 20 years old, or 90 years old. The common thread uniting these people will be that they have no stake in the outcome, they don’t know any of the parties, and their decision will be based on the evidence presented to them over the two-day trial. My heart beats faster just thinking about this….

What a beautiful thing? With all the different political and philosophical views that make up our society, I’m returning to a basic question—perhaps a foundational question of our civil justice system:

When a person is injured by another person or company’s wrongdoing, who should pay for the harm?

I can think of three options:

1. The injured party;

2. Society at large; or

3. The wrongdoer.

What do you think? I’ll wait….

My gut tells me you lean option 3—I sure do. And I believe that most Americans say option 3. I’m certainly confident the eight jurors who are chosen for the upcoming trial will say option 3. Let’s dissect the options:

1. The injured party herself should pay for the harm

I can’t imagine too many people hold this view—certainly not anyone who has been seriously injured by another’s carelessness. It just doesn’t jive with our concept of justice—of right and wrong. When someone does something wrong, there are consequences. This concept goes back to ancient times, and while our methods of dolling out consequences have evolved, not leaving the innocent victim out to dry is as old as Moses—I think he was pretty old….

2. Society at large should pay for the harm

Socialism? Perhaps we’ve crept closer to this sort of system in some ways through programs like Medicaid, Medicare, Social Security, or even Workers Compensation. If we go with this option, however, we’ve fundamentally strayed from the American concept of justice. This country was founded on principals of accountability, justice, and fairness. While the country hasn’t always been true to those principals (see slavery, Civil Rights movement, women not being able to vote, etc.), that doesn’t mean that our founders didn’t get some things right: one of those things, in my opinion, was the concept that public taxes shouldn’t be used to bail out people or companies that do something wrong and injure someone else.

3. The wrongdoer should pay for the harm

Here it is. This is American civil justice. This is our tort system. The wrongdoer is responsible for making the injured victim whole. I’m hopeful that whether you’re a republican, democrat, independent, or a proponent of some other political party, you choose option 3.

If you’re still with me, preparing for this trial brings up another question:

Who should decide how much the wrongdoer should pay the injured victim?

For simplicity’s sake, here are three options:

1. The wrongdoer;

2. Bureaucrats; or

3. Everyday citizens unconnected with the underlying controversy.

You see where I’m going with this? I resoundingly reject options 1 and 2. The person who caused the injury can’t be the one to decide the amount of harm (unless it is in conjunction with the injured person—this is called a settlement), nor do I want elected officials deciding how much a person’s life is worth. I want this decision in the hands of everyday people—people that bring their humanity, every day experiences, and common sense with them to the court house. And our civil justice system agrees. The 7th amendment provides as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Ohio’s Constitution also protects the right to a jury trial, explaining that the “right of trial by jury shall be INVIOLATE.” Inviolate means “free or safe from injury or violation.” I looked it up.

This is beautiful…music to my ears. How fantastic is it that our civil justice system puts the pauper on an equal footing as the corporate CEO? How? The jury trial. Giving the power to everyday people to decide when someone did something wrong, and what the remedy should be, protects the integrity of our justice system. The jury trial is the great equalizer.

After this little thought exercise, I’ll continue to prepare for trial—with even greater motivation. I’m honored to present my client’s case to a jury of her peers, and I trust that they will bring back a verdict that is fair, impartial, and does honor to our civil justice system.

If you have questions about anything in this post, give me a call. I’m happy to listen, and I enjoy discussing the merits of our American civil justice system.

What’s Subrogation? And Why is it Taking My Money?

One of the many frustrating things a person can experience after accepting an injury settlement with the at fault party’s insurance company is realizing how little of the money ends up in the injured person’s pocket.

For example: Jim, 65 years old, went for a drive one Sunday afternoon, and while stopped at a red-light, another car rammed into the back of his car. Jim ends up at the emergency room, he’s diagnosed with a neck sprain, and told to follow up with his doctor. He does, and his doctor prescribes three months of physical therapy. Fortunately for Jim, he’s feeling much better after completing 10 physical therapy sessions.

The ambulance, the hospital, Jim’s doctor’s office, and the physical therapist billed Jim’s auto insurance throughout Jim’s medical treatment. The total bill was $5,000, all of which was paid through Jim’s $5,000 in medical payment coverage. Jim was happy to have the medical bills paid, and he appreciated his insurance company honoring the premiums he’d paid for the past 30 years without ever making a claim.

Three months after the crash, the at fault party’s insurance company is hounding Jim with phone calls and letters about settling the bodily injury claim against its insured. Eventually the insurance adjuster tells Jim, “We’ll offer $6,000 to settle your claim; I can send you the release today, and after you sign, we’ll send you a check.”

$6,000 sounds low to Jim. Definitely not worth his experience over the past few months, but still, it could be worse. He wants to be done with the whole thing: “I’ll put the $6,000 in the bank and move on with life.” So Jim thinks….

A week or so later, a check arrives: $1,000. “What happened to the other $5,000?” The insurance adjuster tells Jim that $5,000 was sent to Jim’s auto insurance company for repayment of the medical payments. “It’s called subrogation,” the adjuster tells Jim.

Subrogation is a legal term that means that someone (or thing) is standing in place of another, holding the same legal rights as that other person. In our example, Jim’s insurance company asserted a right to stand in Jim’s place and recover its $5,000 medical payments from the at fault party’s insurance company.

Just because an insurance company says it has subrogation rights doesn’t make it so. It’s a matter of analyzing an insurance policy or other contract, the Ohio Revised Code, or even federal law to determine the legitimacy of the claimed right to subrogation or reimbursement. And even if there is a right to subrogation or reimbursement, the law provides reductions to subrogation or reimbursement rights in certain situations—to help the person who was actually injured.

But the important thing is for the injured person to know—before accepting a settlement offer—how much of that money actually ends up in his or her pocket. If Jim had known that by accepting a $6,000 offer, he would have received a check for $1,000, would he have accepted that offer?

A lawyer experienced in dealing with these issues can help navigate the complexities of subrogation and rights of reimbursement, and help you make an informed decision about a settlement offer. Before signing the release that the insurance company seems so eager to provide, make sure you understand the details of the settlement, and where that money is going.

Damages: What's the Remedy? Harms & Losses.

“Givem the medical bills.” Not an uncommon reaction when I describe my client’s injuries— injuries that were caused by someone else needlessly endangering their safety. “Givem the medical bills.” I sigh….

I’ve learned that it’s not that the person who responds, “givem the medical bills” is heartless or cruel; they just haven’t spent much time thinking about the harms and losses caused by a significant, debilitating injury. The “givem the medical bills” person has likely never been in my client’s situation of having something valuable taken from them—something like their health, their ability to function without pain, their ability to do the things that made their life worth living like go for a walk, a bike ride, or giving their loved one a hug.

John loved to ride his road bike—he’d been an avid bicyclist for more than 10 years. He didn’t ride competitively, but every Saturday morning he’d wake up early and go for a long bike ride—usually at least 10 miles, sometimes over 30. John worked Monday – Friday; he got up early, worked long hours, went to bed and did it over and over day after day. It’s not that he hated his job, but he sure looked forward to his Saturday bike ride.

One Saturday, a driver wasn’t looking where he was going and clipped the back tire of John’s bike: John wound up in a ditch by the road. An ambulance arrived and took John to the hospital, where he was diagnosed with a fractured right ankle. John spent the next 24 Saturdays going to medical providers rather than his weekly bike ride. Unfortunately, even after the medical care and treatment, he was never able to ride his bike without some discomfort in his right ankle.

Every Saturday brought a new medical bill. Does paying the weekly medical bills bring back what was taken from John by the driver’s carelessness?

When I take on a case like John’s, I represent a human being: a human being with a right to life, liberty, and the pursuit of happiness—a precious right that has been taken away. Our civil justice system is not an eye for an eye, or a life for a life. We don’t go out and break any ankles because John’s ankle was broken—that’d be a bit barbaric. But that doesn’t mean there aren’t consequences for carelessness.

Reasonable compensation for John means restoring 100% of the value of what was taken—it means providing the fair-trade value for his harms and losses. And money is the only way our civil justice system has come up with to do this. What amount of money is needed to fix what can be fixed, help what can be helped, and make up for what cannot be fixed or helped? If a man in a black suit with a briefcase full of cash had arrived at John’s doorstep before John left for his bike ride the day his ankle was broken, what amount of money would be needed in the briefcase for John to say “I’ll take the deal—that’s the fair-trade value for what I’m going to experience today and the rest of my life.”

If you’ve suffered harms and losses because of another person needlessly endangering your life, liberty, and the pursuit of happiness, I’ll work with you to fix what can be fixed, help what can be helped, and make up for what can’t be fixed or helped.*

*Credit to David Ball (David Ball on Damages) and Nicholas and Courtney Rowley (Running with the Bulls) for some of the ideas and language contained in this post.