On Thursday, the Senate Judiciary Subcommittee issued a favorable report on SB 244, but the battle isn’t over. On Tuesday, the bill moves to the full Judiciary Committee, and proposed amendments are expected. Subcommittee members and some who testified before the subcommittee are also working on compromise language for certain provisions, including the portion of the bill that would allow juries to consider the fact that a car accident victim wasn’t wearing a seat belt in its comparative negligence assessment.
Tort Reform Issues that Remain Under Discussion
Much of the discussion on Thursday focused on SB 184’s dram shop provisions. Two other issues that got considerable attention were the provision allowing juries to consider that someone injured in a car accident hadn’t been wearing a seatbelt when determining liability and the need for the proposed bad faith insurance claim limitations.
Seat Belt Usage
During the hearing, witnesses and committee members discussed whether it was appropriate to make lack of seat belt usage part of the comparative negligence analysis or allow that information to be presented only as evidence to mitigate damages. Some argued that it doesn’t make sense to consider seat belt usage in determining liability, since failure to wear a seat belt was not a contributing cause of the accident.
They also split on whether juries should always hear that a car accident victim hasn’t been wearing a seat belt or only when the failure to use the safety devices arguably aggravated damages. This is one of the areas participants agreed to work together to “iron out” before the bill goes to the floor. However, there was general agreement that juries should hear about failure to use safety restraints in some way in at least some cases and could use that information in one way or the other to reduce damages awarded.
Bad Faith Insurance Claim Restrictions
There was also debate about whether there was a need for the provision that protects insurance companies from liability for bad faith if they act within specified timelines. One witness expressed concern that the legislature was stepping in to create a rule that should rightly be governed by contract, but acting only to protect the insurance carriers. Another pointed out that courts have made short work of frivolous bad faith claims, and a hard and fast timeline wasn’t needed at all.
One witness pointed out that for a small business such as an owner-operator truck driver, the timelines in the statute would allow the insurance company to withhold payment on a property damage claim until the accident victim was driven into bankruptcy. That’s bad not just for the truck driver, but for the other creditors who are included in the bankruptcy because the trucker’s income has been cut off and for the economy generally–especially in a time when truckers are in short supply.
Participants agreed to work together to try to come up with a timeline that offered defendants and their lawyers fair time to respond after receiving evidence without creating a crisis for the insured or a person the insured injured. However, we maintain that the statutory restrictions are unnecessary given that courts can and do easily dispense with unwarranted bad faith claims. The potential harm that comes from giving the insurance a “safe zone” in which they can delay to put pressure on the injured person and profit on holding funds for up to an additional 13 months is too great.
It’s Not Too Late to Stop Tort Reform in South Carolina
Contact your South Carolina legislators today to let them know you don’t want to hurt South Carolina residents and businesses to increase insurance company profits.
Some points you may want to raise include:
- There is no evidence that this bill will lower insurance premiums for South Carolinians, and what has happened in other states (such as Louisiana) suggests that it won’t.
- Allowing insurance companies to delay claims without concern about bad faith litigation hurts insurance policy holders and people injured in automobile accidents–the very people insurance is intended to protect.
- Uninsured motorist coverage is meant to cover damages the uninsured motorist would have paid, up to policy limits–let’s keep it that way instead of limiting compensation to the insured so insurance companies can keep more money.
- Non-economic damages are already limited in medical malpractice cases unless the provider’s actions were grossly negligent,reckless, wilful or wanton or they engaged in fraud or misrepresentation. Those are bad actions that put patients at risk and should carry a higher cost, so those exceptions should not be eliminated.
- SB 244 would put South Carolina property owners on the hook for mistakes–or even intentional corner cutting–by contractors based on when they happened to learn about the defect. That burden should be on the company that caused the harm.
You can find more information and contact information for your legislators here: https://fairsc.com