Wednesday, January 27, 1999

Liability findings
could increase rates

A Tort Law Study Group
recommends higher limits on
motor vehicle liability

By Craig Gima


Insurers say rates could rise if recommendations suggested by an 18-month Senate study of wrongful injury and damage lawsuits are adopted.

The Tort Law Study Group presented its findings to the Senate Judiciary Committee this morning. The group recommends, among other things, higher liability insurance limits for motor vehicles and mandatory insurance for professionals and some businesses.

1999 Hawaii State Legislature "If they raise the limits, the rates will go up," said Paul Ables of the Hawaii Insurers Council.

To take care of concerns about "deep pocket" liability, the group recommends that businesses that have the minimum mandatory coverage would have to pay only their fair share of damages.

Under current law, a business with "deep pockets" that may be only partially responsible for an injury could be liable for the entire damage award if the other parties cannot pay.

"If people have enough insurance or assets, then people will end up paying their proportionate share," said study group member Denise Antolini.

Judiciary Committee Co-Chairman Avery Chumbley (D, Kihei) said he believes the group's recommendations will alleviate the concerns that most professionals and businesses have about the high cost of liability insurance.

At the same time, Chumbley noted, "You don't want to diminish the rights of the injured victim."

He said he is working on legislation based on some of the group's recommendations.

The Senate's bills could conflict with a House "tort reform" bill passed yesterday.

Last year, the Senate refused to hold a hearing on the House's proposals. Wayne Metcalf, then co-chairman of the Senate Consumer Protection Committee, said he wanted to wait for the tort study before considering changes.

"Tort law is not something that's easily understood," Chumbley said.

The tort group was made up of plaintiff's lawyers, defense attorneys and business representatives.

The tort study group is also recommending the current system of allowing punitive damages. Its report said the current system of judicial review by the trial judge and on appeal provides an adequate check on the amount of jury awards.

Chumbley said he will also propose a bill based on the group's recommendations to allow both defendants and plaintiffs to submit settlement offers and to allow discovery and trial testimony by videotape to reduce court costs.

Attorney criticizes
cap on damages for
personal injury

By Craig Gima


A Kauai boy who suffered severe burns and spent seven months in a coma would not have received enough money in a lawsuit to cover his needs under a House tort reform bill, an attorney told lawmakers.

Arthur Park, who represented a boy who suffered an electric shock when he climbed a ladder near a 12,000-volt power line, said his client's medical bills exceeded $2 million. He said the boy had burns over 75 percent of his body, suffered brain damage, is partially paralyzed and is blind in one eye.

"To try and say that a person like this should now have a cap of $500,000 or a million is not to understand what can happen in catastrophic injuries," Park said.

The bill, which passed the House Judiciary Committee yesterday, would put a $500,000 limit on all noneconomic damage awards for claims like pain and suffering and mental anguish. It would also limit punitive damages to three times the amount of compensatory damages and require a judge rather than a jury to determine the amount of punitive damages.

Park said the boy and his family received an out-of-court settlement that will take care of his needs for the rest of his life. But Park said that if the law had been changed, he would not have had as large a settlement because there would not have been as much pressure on the parties involved to settle. He also said that, without the settlement, the boy might have had to depend on welfare or other government support.

Park said the amount of the settlement is confidential.

Businesses say the current law makes it difficult to get affordable business insurance.

Judiciary Chairman Paul Oshiro (D, Ewa Beach) said he believes the House bill will lower insurance costs and reduce the cost of doing business in Hawaii.

The House bill would also permit attorneys' fees and court costs to be awarded if only a portion rather than all the claims or defenses are found to be frivolous.

The bill passed the Judiciary Committee with 13 yes votes, but eight members expressed reservations.

The House Judiciary Committee also combined the tort bill with another bill that would modify the state's "deep pockets" law known in the legal community as "joint and several liability."

Under current law, a company that is 25 percent or more responsible for an injury could be forced to pay all of the damages awarded.

Robert Toyofuku of the Consumer Lawyers of Hawaii said the measure would shift the legal burden from defendants to plaintiffs and questioned whether a change is necessary.

He said of 600 cases reviewed in the last few years, only four awards involved possible "deep pockets" cases.

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