Courts, lawmakers chip away at our right to victim’s compensation

 

As a trial attorney and adjunct law professor, I could not help but notice the parallels and the contrasts in news coverage about what happened recently in Miami and in Savar, Bangladesh. In Miami, four workers lost their lives, and others were severely injured, when parking garage at Miami Dade College in Doral collapsed in October. The legal claims were settled last week. In Savar, Bangladesh, the death toll in the Rana Plaza disaster reached more than 650, as the rescuers sorted through the rubble looking for bodies. Both disasters were preventable structural collapses.

Local attorney Ervin Gonzalez and the other attorneys representing parking-garage victims deserve congratulations. By using our laws and developing the facts, including through retaining expert witnesses in the building and engineering fields, Gonzalez and the other attorneys helped the victims get a quick resolution of their damages claims. Exactly what they recovered was not reported. Many settlements are cloaked in confidentiality contracts, demanded by the defendants and their insurance companies. With pretrial settlements, the results and the facts are too often hidden from the public view. Without a jury trial, the public cannot get the benefit of the full information needed to prevent future tragedies.

The collapse of the Rana Plaza building in Bangladesh, where workers from five clothing factories were killed and injured, was the deadliest disaster for the country’s garment industry. It followed the Nov. 24 Tazreen Fashion factory fire in the Ashulia district on the outskirts of Dhaka, Bangladesh, which killed 117 people and injured at least 200.

Does anyone think those victims will get such a rapid resolution of their damages claims as was provided for the Miami Dade College garage collapse?

Our history provides a lesson. The Triangle Shirtwaist Factory fire in New York City in 1911 caused horrific death and suffering, as well. But it led to a revolution that led to more rights and safety laws for workers in the United States.

One of the beauties of our civil-justice system is that, by compensating victims, tort law creates incentives for safety and changes in behavior that benefit all of us. Our rule of law provides economic incentives for standards of reasonable care by individuals and businesses to prevent injuries to others. That reduces carnage and death in our society. This law evolved over hundreds of years, adapting to changing conditions, including the rise of the automobile, air travel and modern building practices. People’s right not to be injured by the negligence of others had expanded as needed for centuries.

Sadly, our system of tort law has been dismantled piece by piece, and case by case by legislatures and judges over the past 30 years. Workers-compensation laws have actually reduced compensation to injured and killed workers over what the common law provided. No-fault car crash laws also prevented juries from awarding reasonable compensation in damages for moderate-injury car-crash cases, which are the majority of car-crash claims. Changes to the law of joint and several liability of negligence wrongdoers have reduced compensation to victims to the benefit of insurance companies and negligent businesses. Damages caps in medical negligence cases prevent fair compensation, while deaths from medical and hospital negligence exceed 100,000 people a year by conservative estimates.

Unconstitutional laws rob people of their rights, though many courts do not declare them unconstitutional or delay such determinations. Courts enter improper judgments for defendants, closing the courthouse doors to victims, despite the laws that require jury trials of such disputes.

We can expect more disasters, deaths and injuries in Florida if the trend is not reversed. Texas has changed its laws to hobble what courts and juries can do to assist victims of negligence and has reduced its government-safety regulation of dangerous activities. The recent West, Texas, fertilizer factory’s horrific explosion may be a portent of things to come if we do not stop limiting and eliminating victims’ rights.

When voters see their elected officials take their rights away at the behest of lobbyists for insurance companies and negligent businesses, they should speak out. Our tort laws need to be restored, not further weakened, to protect people. Laws holding insurance companies liable for their extreme bad faith when they fail to do what was promised need to be strengthened. Informed voters needs to step up their efforts to see who is protecting them and who isn’t. The civil-justice system is about accountability. Those who take away our rights must be held accountable when they do.

David L. Deehl, adjunct professor of litigation skills, University of Miami School of Law, Miami

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