Parker Waichman LLP Injury Alerts
MORE SPECIAL INTERESTS THAT ARE ATTEMPTING TO TAKE AWAY YOUR RIGHTS Manipulating the public through deceptive advertising is the latest weapon in the special interest arsenal.Oct 1, 2004 Introduction
For decades, a number of special interests have sought to convince federal and state legislators to impose restrictions and even prohibitions on the rights of injured parties to recover damages from the industries and professions they represent. They want to receive special treatment in the form of unprecedented protection from laws which have evolved in this country over two hundred years. For the most part, these efforts to pressure elected officials failed. The reason for that was quite understandable, however. The extraordinary relief they were seeking was wholly inappropriate and terribly unfair to the very people the laws had been designed to protect.
Unfortunately, all that has changed. The following “special interests” have finally succeeded in buying their way into the hearts and minds of your elected representatives with tens of millions of dollars worth of political contributions in the form of “soft” money.
1. pharmaceutical manufacturers
2. the medical profession
3. the medical malpractice insurance industry
4. medical device manufacturers
5. the HMO industry
6. the automobile leasing and rental industry
7. the construction industry
8. the automobile and construction liability insurance lobbies
Last month we pointed out in great detail how the money spent by the powerful medical, pharmaceutical, and medical malpractice insurance lobbies (1-5 above) have managed to secure incredible advantages at the public’s expense. Shortened statutes of limitations, “caps” on damage awards for pain and suffering, greater pleading requirements, more difficult standards of proof at trial, lower attorneys’ fees, protection from certain law suits, and other obstacles have been placed in the way of those severely injured by medical malpractice, dangerous prescription drugs, defective medical devices, and the negligence of HMOs. No other type of litigation or class of defendants has ever received such favorable treatment.
While “trial lawyers” and “runaway” juries have been made the scapegoats for “skyrocketing” medical malpractice premiums, such accusations are simply unfounded and make no sense. Trial lawyers are not committing the medical malpractice upon which the increased premiums are based, and juries do not force insurance companies to settle cases in which there has been no malpractice. All of the statutory and judicial safeguards discussed in our September Newsletter protect doctors and their insurance companies from paying any more than the evidence justifies. Frightening the public into thinking that good doctors are being forced out of the practice of medicine by unscrupulous trial lawyers is nothing more than “crying wolf”.
This Newsletter, however, addresses an entirely different scheme by which special interests (6-8 above) are making members of the public believe that they are victims of a number of laws which are actually designed to protect them.
Vicarious liability of automobile owners
When a motor vehicle is negligently operated and involved in an accident, the owner as well as the driver (operator) can be sued for the damages caused by the vehicle. Although owners themselves are often driving their vehicles at the time of an accident, there are numerous times when the driver is merely operating the vehicle with the permission of the actual owner. This occurs when: (1) an employee is driving his employer’s vehicle; (2) a spouse or child (or other relative) is driving a family car owned by another family member; (3) a vehicle owed by one person is loaned to another person; (4) a rental vehicle is being driven by the renter; or (5) a leased vehicle is being driven by the lessee.
The reason for “vicarious liability” in automobile cases is obvious. It is the owner of the vehicle who is required by law to maintain insurance coverage. It is the owner of the vehicle who must be certain that anyone operating the vehicle is doing so responsibly. An operator who is not an owner does not have insurance to cover the vehicle in most cases. Finally, it is the owner of the vehicle who is ultimately responsible for the vehicle which is the instrumentality which causes the damage in an accident.
With respect to leased or rented vehicles, however, the owners are rental companies (like Hertz and Avis), automobile manufacturers (like Ford and GM), or leasing companies which may or may not be affiliated with the manufacturers. When rental agreements or leases are entered into, the renter or lessee is given permission to operate the vehicle in return for the rental or lease payment. In addition, the renter or lessee is required to purchase a minimum amount of insurance to cover any damages caused by the vehicle as a result of the operator’s negligence. In both cases, the renter or lessee may obtain additional insurance if they wish to.
In both situations, however, there is the possibility that the amount of insurance purchased by the lessee or renter will not be sufficient to cover all of the damages that may occur in an accident. It is also possible that the renter or lessee will not have any personal assets available to pay any part of the damages that are not covered by insurance. In such cases, vicarious liability would be triggered to ensure that the injured parties would be able to recover the damages they are entitled to.
Rental and leasing companies, after all, are the true “owners” of the vehicles they lease or rent and, as such, are no different than any other owner in the eyes of the law. Unfortunately, however, these companies and their insurers decided a few years ago that they did not want to be responsible for their vehicles once they were rented or leased. They preferred to be insulated from liability for accidents involving their vehicles regardless of whether the people injured by them were able to recover for their injuries. What they wanted was to have the renter or lessee treated as the owner while they simply collected rental and lease fees.
The problem with this desire on the part of the rental and leasing companies and their insurers was that it was contrary to the law as it existed in every jurisdiction in the United States. So, what did they do? They began lobbying for changes in the law with respect to vicarious liability so that it would not apply to their vehicles. Pressure was put on elected officials through PACs (political action committees) and a great deal of “soft” money was contributed to political campaigns. In addition, leasing companies simply closed down their operations in many states thereby preventing people from leasing vehicles from them unless they went to another state where the laws were more favorable. Once a state “lost” all or most of its leasing companies, the people of that state were then targeted for an advertising campaign that promised the return of leasing companies if the laws with respect to vicarious liability were repealed as to them. The companies (through their industry trade organizations) used lower lease rates as the enticement to have people contact their elected representatives.
These tactics have been quite successful. As a result, many states have amended their vicarious liability laws to exclude leased or rented vehicles. Thus, these companies have significantly decreased their operating overhead by drastically reducing their liability insurance premiums and potential exposure to personal injury damage awards that are not covered by the insurance obtained by their lessees. Of course, these savings have not translated into proportionately lower lease and rental rates for customers. All that has occurred is that the public has lost a valuable statutory right, and one more special interest group has succeeded in obtaining extraordinary treatment from the very people you elected to protect your interests.
Some states, like New York, have not yet succumbed to this blackmail, but the lobbyists have not given up. The advertising campaigns have also continued. One has to wonder just how long it will be until rental and leasing companies enjoy liability-free status in every state.
Absolute liability for construction accidents
Construction workers have always been at a great disadvantage when it comes to forcing employers to provide them with a safe work place. Most of this country’s great building projects before 1950 (subways, bridges, railroads, dams, and skyscrapers) were accomplished by immigrant workers who needed their jobs to support their families and who had little, if any, bargaining power when it came to such things as safety equipment and overall safe working conditions. In most situations, an employee who refused to work without safety equipment or under unsafe conditions was replaced by someone who was willing to risk injury or death simply to have a job.
Although workers’ compensation laws provided some relief, they are restricted to specific award schedules and do not provide the type of recovery needed by workers who suffer catastrophic injuries. Some states have never permitted workers to sue anyone for job-related injuries. In those states, workers’ compensation is the extent to which injured workers may recover for injuries they sustain on the job. Other states have expanded their laws to permit injured workers to sue third-parties for injuries sustained in the course of their employment as long as the defendant is a true third party and not directly involved in the work. This would include situations such as when a worker is injured by a defective piece of equipment. The worker may bring a products liability claim against the product manufacturer in addition to his workers compensation claim.
In certain states like New York, however, decades of statutory reform has succeeded in providing workers with the right to sue owners and general contractors (other than their own employer) for personal injuries that occur in certain dangerous jobs, in the course of specific high risk activities, or when a safe work environment is not provided. Because of the hazardous nature of the activities involved as well as the likelihood that a worker would not be able to guarantee his own safety, the liability imposed on the offending owner or general contractor is “absolute” and any negligence of the worker will not be considered.
Clearly, if a worker plunges down an unprotected 80-story elevator shaft that was required to have planking on every other floor (thereby making any fall a very short one), it does not matter if the worker had two beers at lunch before he fell. If a painter falls 25 feet to the ground from a dangerously defective scaffold, which he was required to use, it does not matter if he placed a ladder on top of the scaffold in order to reach the area he was supposed to paint. In both cases, the worker had no choice but to work under circumstances over which he had no control. The absence of proper equipment or appropriate safety precautions put the injured workers at great risk, and their conduct should not be allowed to excuse the owner or general contractor who failed to abide by the applicable laws.
In states which permit such lawsuits, such as New York, owners and general contractors and other potential defendants are required to carry a form of liability insurance that provides them with full coverage for injuries that are not governed solely by workers’ compensation. Thus, owners and general contractors are never in a position where a damage award will affect their assets or financial stability. All that is involved is an additional form of insurance coverage. Of course, not everyone looks favorably upon this statutory scheme to protect construction workers who are exposed to hazardous conditions while on the job.
The owners and general contractors, who must pay the additional insurance premiums, and the insurance carriers, which must pay the settlements and judgments, are far from pleased with this situation. For years, however, their efforts to turn back the clock to a time when workers enjoyed far less protection have met with little success. This is not the kind of tort reform that these special interests groups can easily sell to elected officials since organized labor as well as powerful unions control large voting blocks and simply cannot be ignored. Thus, in order to have any chance of convincing elected representatives to repeal the absolute liability laws discussed above, these special interests had to come up with a new plan of attack. And, by golly, they did.
In an advertising blitz in New York, these laws, which took a half century to pass and are specifically designed to protect construction workers in high risk situations, are being blamed for higher home prices. Although negligent owners and general contractors (who have violated the law) cause workers to be seriously injured, the injured workers are being blamed for adding thousands of dollars to the cost of new homes. Sounds incredible, but that is precisely what these special interest groups are attempting to sell the public so that people contact their elected representatives and demand a repeal of the labor law provisions discussed above.
As we hope our subscribers will realize, your rights are being attacked by a number of different special interest groups. Some of these groups have the ear of the politicians they have bought and some are using incredibly deceptive advertising techniques. Regardless of which approach is being used, the goal is to gain undeserved benefits for these groups while seriously compromising the rights of the innocent victims of their negligence.
You are not powerless, however. Your vote is a potent weapon against such overreaching by these influential special interests. Be sure to cast your vote wisely on Election Day. Candidates, like the current President, who are closely aligned with the medical, pharmaceutical, and insurance lobbies, plainly do not have your best interests in mind.
Remember, if the day ever comes when you or a loved one is seriously injured by medical malpractice, a dangerous drug, a defective medical device, or in a serious automobile or construction accident, it would be a terrible thing indeed if those responsible were allowed to simply walk away with little or no accountability.