A few days ago, I posted a video that was recently released by the Chamber of Commerce entitled “Faces of Lawsuit Abuse” showing images of those who have supposedly suffered severe hardship as a result of so-called frivolous lawsuits.
The implication was of bankrupted individuals and ruined small businesses because of greedy trial lawyers. Of course, it was all drama and no substance, meaning, the Chamber did not marshal forth any supporting facts or statistics.
Being one of those maligned trial lawyers, I thought I would offer my own response. If I had the resources to produce a dramatic message for television, I might entitle it: “Insurance Companies: Masters of Frivolous Defenses in Lawsuits.”
And rather than showing a contrasting set of images, say of insurance adjusters in the act of denying claims and injured plaintiffs barely subsisting because their injuries prevent them from working and American society offers a meager social safety net, I would offer the following anecdote from my own practice. As an aside, there is nothing spectacular about this example; it is somewhat run-of-the-mill.
My client, a 30-year old man, was buying a sandwich at a Brooklyn deli on May 2, 2005 when suddenly the ceiling collapsed. He was struck on the head and fell to the floor. When he tried to get up, he noticed that his leg was seriously injured.
A young lady who had been standing next to him was buried underneath the rubble. She reached out a hand to him and he held it. He tried to pull her up but she was buried too deep. After a few moments her hand went limp and she stopped breathing.
She was pronounced dead at the hospital. He suffered tears to the ligaments in meniscus in his knee. Today, he walks with a limp because he is uninsured and cannot afford the surgery he needs.
In the lawsuit I filed on his behalf, I discovered that the deli owner also owned an adjoining 4-story brick building that had been vacant for 30 years and which he was planning to rehab. Its exterior wall had collapsed onto the roof of the deli, a one-story building, causing the accident. There had been a billboard posted on the wall facing the deli which was removed 6 weeks prior to the collapse.
During depositions I learned, among other things:
- An architect hired to assess the building told the owner months before the collapse that the wall with the billboard was in danger of collapse;
- The general contractor told the owner that the billboard was too large for the wall and that the wall was in danger of collapse, and he said that there were interior collapses inside the 4-story building; and
- A worker for the billboard removal company said that the roof of the 4-story building was missing. (This is notable because water is like a solvent that will cause a brick building to literally deteriorate);
- The billboard company had illegally posted the billboard without a permit; and
- When the billboard removal company removed the billboard it left holes in the wall where the billboard had been bolted into the wall without patching over them (allowing water to seep into the wall).
All of this information was learned in 2007.
The building owner, general contractor, and billboard owner and removal company are each defendants – and each had an insurance policy and so each has its defense financed by the insurer which will be responsible for satisfying any settlement or verdict. In other words, all are represented by insurance company lawyers who regularly report back to the insurance company about the progress of the case.
Yet despite this overwhelming evidence of negligence – again, the building owner owned and maintained a building without a roof – not one defendant, or, to be more precise, not one insurance company, has made a settlement offer in the case. And this is almost two years later at the end of 2008. In fact, when I would see the insurance company lawyers at depositions – about 12 were taken in the case – they would routinely comment to one another about how this case was a “cash cow” in billing for them.
And so my client walks around with a limp, unable to get the surgery he needs, the surgery that a settlement would pay for.
Maybe, on second thought, this is a message better conveyed in writing, because there are facts surrounding it, facts that need to be told in order to make a point. Maybe a TV ad consisting only of images and dramatic music like the Chamber’s wouldn’t convey this message as well because, well, the message is one with substance.
In closing, what is most telling about the Chamber ad is what it does not say rather than what it says. It does not mention that litigation costs, which it claims are responsible for many of the economic problems in our society, would decrease if insurance companies settled cases where liability was clear instead of pushing them all the way towards trial, no matter what the facts.
And the ad does not mention that the faces of lawsuit abuse that it shows to the public are, in most cases, not responsible for paying legal fees, judgments or settlements incurred in lawsuits in which they are named as defendants. Rather, that falls to their insurance companies, and any problems those companies face are due to their own bad investments and the swindling on Wall Street that has sunk our economy, not trial lawyers.