The cards are stacked against injured Alaskans

The cards are stacked against injured Alaskans who must access the legal system.

Though the majority of the public believes the law favors injured people trying to collect money for injuries suffered in accidents, they are wrong. In Alaska, the law is stacked heavily against severely injured people being fully and fairly compensated for injuries they have received in accidents. How can that be true? Simple, the insurance industry and business community own/control the state legislature and the Alaska’s legislature, under the banner of “tort reform”, changed existing laws to favor the insurance industry and business community at the expense of injured people and their families. Changing the tort law system was an effort to save insurance companies and businesses money at the expense of injured people. In fact, many of the changes have driven up the cost of resolving injury claims while severely limiting compensation to injured people.

My contention that Alaska’s law treats injured people unfairly and unjustly, relate to changes begun over 25 years ago. In 1986, Alaska’s legislature, bowing to pressure from the insurance industry and business community, started changing our legal system from one based upon the principal that people injured in accidents caused by the negligence of others should be “made whole” to a system which “protects” the rights of the wrongdoers. In 1997, the legislature finished “gutting” the tort law system with a major revision of the laws which compensated accident victims.

Though many changes have been made to the tort laws over the years, the primary mechanism used for tipping the scales of justice against injured people has been adoption of fault apportionment and damage caps.

Fault apportionment. Fault apportionment was “sold” by its proponents as being necessary to promote fairness to the person or persons being sued for negligently hurting the claimant and to save money in paying out claims. The law’s focus shifted from helping the injured claimant recover from the effects of an uninvited accident caused by a negligent wrongdoer to protecting the wrongdoer from paying more than his share of damages. Though the law now clearly protects the wrongdoers and their insurers, the goal of saving money by driving down insurance settlements likely has not been met. Fault apportionment has created a full employment act for defense attorneys and by creating hurtles for seriously injured accident victims to climb over, the costs of resolving claims has increased.

Before “fault apportionment” was the law, the injury compensation system was based upon “joint and several liability” and the principal that a person injured in an accident through no fault of their own should “be made whole.” The “joint and several liability” system worked like this. A person who was hurt would sue the person/business which negligently caused the accident and would recover a judgment in court. The defendant or its insurance company would pay the full amount of the judgment. If the accident was caused by the negligence of several people/businesses, the injured claimant only had to sue the person responsible for the injury who had the best ability to pay the judgment. In other words, the claimant could collect the full amount of his judgment from the sole defendant. This lead to an unjust results with respect to a defendant who was only partially at fault; why should one wrongdoer have to pay for all of the damages which were the joint responsibility of several wrongdoers?

Thus, fault apportionment was enacted. Under fault apportionment, each wrongdoer who contributes to injuring a claimant is responsible only for his percentage of the total fault. Thus, the claimant who is injured by multi parties must seek payment from each wrongdoer. And, if a wrongdoer who has been allocated a percentage of fault has no money or insurance, the claimant does not get paid.

Fault allocation shifts the risk of recovering full damages from the wrongdoes to the injured claimant. So, if you are unlucky enough to be hurt and you are further unlucky enough to be hurt by multiple parties, some of whom have no ability to pay your damages, that is just you just tough luck. Have a nice day.

Fault appointment drives up the cost of resolving injury claims in several ways. First, it is a full employment act for defense attorneys. Every single “potentially at fault party” must be added to a law suit in order for the plaintiff to be “made whole”. This leads to a lot more “parties” being sued and every party added to a law suit is entitled to receive a defense attorney at the expense of their insurance company. The more defense attorneys involved in the case, the more time it will take to resolve the case and the more it will cost the insurance companies to defend the lawsuit.

On the claimant’s side of the equation, the more defense attorneys involved in the case the longer it will take the claimant to move the case through the litigation process. This drives up the costs of the claimant, because with each additional party to the suit will raise additional issues to litigate. Thus, the whole process of resolving and injury claim is stretched out longer for everyone and the costs increase.

Fault apportionment has likely saved the insurance industry money in one circumstance. There are many injury cases which simply cannot be economically processed by plaintiff’s attorneys and those cases are not pursued. Thus, the injured claimant is effectively left without a remedy from the legal system and the wrongdoers and their insurers get off scot free. Seriously injured people without a remedy can only survive with public assistance and thus the rest of us tax payers end up paying for the harm cause by wrongdoers and the injured claimant does not have access to any justice.

Damage caps. As part of the tort reform movement, the Alaska legislature decided that in most injury cases, the maximum amount of damages and injured person can recover for “non-economic” damages is $400,000. I will grant you that $400,000 is enough money to cover the non-economic damages suffered by most injured people, but what about the severely injured? Non-economic damages encompass physical pain and suffering, permanent disability, emotional pain and suffering, loss of support and caring for one’s children or spouse and other damages which do not have a specific economic cost such as medical expenses and lost earnings. However, when a young person suffers a severe injury which will last a lifetime, $400,000 is simply drop bucket to compensate them for a lifetime of misery and losses.

Under a limited number of circumstances, the noneconomic damage cap is $1 million. For instance, an injured person paralyzed from the neck down would be able to collect up to $1 million in noneconomic damages. Who among us would trade the joys of an active life for $1 million?

Unfortunately, most people have no idea that Alaska’s tort laws are stacked against them and in favor of the insurance companies and business communities. An injured person’s best chance of getting a fair shake under the law is to hire an experienced personal injury attorney. Without the help of an attorney experienced in this field, a person with a significant injury has no chance of being treated fairly by the system.

The tort law system was intended to make injured people “whole”. Regrettably, that is not the law now. If an injured person has any chance of being made “whole” he or she needs to have a strong experienced attorney helping them navigate through this unjust system.