Opinion: The Neglected Side of Tort Reform
B>By Robert D. Moseley
I>Attorney
eatherwood, Walker, Todd & Mann PC
While these efforts are very important and are to be commended, we must remember that getting laws on the books is only half the battle. Ensuring that fair and balanced judges are elected or appointed to the bench is the other half.
No matter how well-crafted the statutes, bizarre fact patterns and imaginative plaintiff’s counsel constantly conjure new proposed interpretations contrary to the apparently clear intentions of reform-minded legislatures.
Because statutes are interpreted by judges, it is imperative to be aware of and to participate in the judicial selection process. Federal judges are appointed by the president, normally upon the advice of the highest Senate or House member of the president’s party in the affected state.
State judges are either elected or appointed under various schemes. Some states allow for appointment by the governor while others elect judges through the legislature. Those interested in seeing their reforms bear fruit should find out who the potential candidates or nominees are and work to influence the selection of judges who are friendly, or at least not hostile, to trucking.
Elected officials responsible for selecting judges should feel pressure to appoint judges who will apply these newly enacted statutes as their legislatures, not the plaintiff’s bar, intended.
Once judges are elected or appointed, there are procedures for removing jurists who do not enforce the laws. For a sitting judge, one need only ask a local trucking attorney about the judge’s leanings to determine the appropriate action to take. Often, the local bar association evaluates judges on courtroom demeanor and favoritism, and this information may be available on the bar’s Web site or some other publicly available document.
Your state trucking association may also have information regarding the history of judges whose seats are up for re-election or reappointment, as well as other candidates for those seats. The well-informed reformer should be aware and take advantage of these resources.
Generally speaking, there are two kinds of judges applying tort laws: trial judges, who also preside over the initial phases of litigation, and appellate judges, who address perceived errors of the trial judges or juries. Both types of judges play an important role in the management of injury claims against motor carriers.
The appellate courts are often the battlefield where these issues are won or lost. For example, the U.S. Supreme Court’s decision in State Farm v. Campbell is already having an effect on efforts to hold down punitive damage awards.
North Carolina recently affirmed that state’s cap on punitive damages, after a constitutional challenge in Rhyne v. Kmart Corp.
However, there are also some disturbing trends in the appellate courts. California’s courts have opened the door to extending the tort liability of one carrier to another merely because the second carrier’s name is on a bill of lading. Other appellate courts have expanded the reach of the federal form MCS-90 to create additional funds for injured parties to levels never conceived by the drafters of the regulatory requirement demonstrating proof of insurance coverage.
The importance of judicial selection is not limited to the upper-level appeals courts. While the handiwork of appellate judges does have long-lasting and significant repercussions, local judicial elections can be just as crucial for the success of tort reform.
Most judicial decisions, such as evidentiary rulings, venue choices and motion hearings, cannot be appealed immediately. This means that the trucking company defendant must run the risk of an unfavorable or even catastrophic verdict before seeking judicial relief on appeal. Often the mere threat of the unfavorable verdict in the face of what is believed to be clear judicial error on the part of the trial judge will coerce a substantial settlement in lieu of an appeal.
Although much time and money is spent in efforts to obtain and maintain transportation-friendly legislation, it is all for naught if judges refuse to enforce the changes as written or are biased against the industry.
Thus, while there is much to be said for seeking legislative changes to protect trucking, equally as important are efforts spent on the “other side” of tort reform.
Without a balanced approach, your liability insurance premium will continue to rise and your profit margin will continue to narrow.
Neglecting the judicial side of tort reform will lead to Pyrrhic victories, as the most favorable statutory system in the world is useless if judges are not practically and legally bound to enforce the laws they have sworn to uphold.
The author is chairman of Leatherwood Walker’s transportation practice group in Greenville, S.C., and represents trucking companies in accident, freight claims and insurance coverage cases.
This article appears in the June 7 print edition of Transport Topics. Subscribe today.
