House hearings hold key to lawsuit reforms

Wednesday, April 19, 2017

It’s a pivotal week in House committees for several bills - some that would make common-sense reforms to lawsuits in Colorado, others that would create new causes of litigation. 

On Wednesday, House State, Veterans and Military Affairs considers several bills aimed at curtailing Colorado’s lawsuit tax:

Senate Bill 181 (sponsored by Rep. Yeulin Willett, R-Grand Junction) would allow juries to hear evidence that reimbursement costs for medical expenses were actually less than the amount printed on bills from medical providers. The difference between the larger billed amount and the lesser paid amount are “phantom damages” which no one actually owed and no one ever paid. Juries are smart enough to sort this out, if only courts are required to give them all of the facts.

Senate Bill 191 (by Rep. Willett and Rep. Cole Wist, R-Centennial) changes the interest rate on judgments from 8% or 9% to a floating rate of 2% above the Kansas City federal reserve rate. Today, the best investment in Colorado is a lawsuit because interest rates on successful lawsuits pay more than CDs, bonds - even more than PERA. Interest rates should reflect today’s economy - not the economy of the 1970s.

Senate Bill 156 (by Rep. Lori Saine, R-Firestone, and Rep. Wist) requires that, before an HOA can engage in a lawsuit based on construction defects, homeowners must be given information about the costs and risks of litigation; requires mediation before litigation; and requires written consent of at least a majority of HOA members.

Meanwhile, two other House committees consider bills that will lead to more lawsuits.

House Bill 1307 (by Rep. Faith Winter, D-Westminster) creates mandatory family and medical leave insurance. The bill creates several potential “litigation traps” for employers by prohibiting “adverse employment action” against an employee who attempts to take leave. So, an employee who is being discharged or demoted files for leave and then claims discrimination by the employer, forcing the employer to prove that discharge or demotion was due to performance, not related to the attempt to take leave.

While House Finance considers that bill, House Local Government will ponder House Bill 1314 (by Rep. Joe Salazar, D-Thorton) this year’s iteration of the Colorado Right to Rest Act - aka “the Homeless Right to Sue” Bill.

While HB 1314 has been dialed back from previous versions, it continues to create statutory “rights,” like a right for homeless people right to enjoy privacy in public places comparable to that in a private residence. This bill creates a cause of action (and litigation) for anyone who believes that these “rights” are being violated, either by government or private property owners.


Senate bills needlessly use litigation as enforcement weapon

Tuesday, April 11, 2017

At Colorado Civil Justice League, we try to keep a consistent focus on unnecessary litigation. That's why you usually won't see us weigh in on bills unless there's a litigation angle.

After all, litigation should be a last resort!

However, two bills in the Colorado Senate needlessly turn to private, personal injury litigation as an enforcement mechanism to advance other policy objectives. The only time private litigation is the proper enforcement tool is when fundamental freedoms are at stake and other avenues of redress are insufficient or unavailable - as when First Amendment rights to freedom of speech or freedom of religion or freedom of association are being abridged by government.

Even then, the answer usually isn't to sue for monetary damages; it's to sue to compel government to honor your constitutional freedoms.

Senate Bill 281 (by Sen. Vicki Marble, R-Fort Collins, and Sen. Tim Neville, R-Littleton) aims to punish local governments that fail to enforce federal immigration law - aka "sanctuary cities."

Senate Bill 284 (by Sen. Kevin Lundberg, R-Berthoud, and Sen. Marble) would require that health care providers present women who are considering an abortion with certain information about their pregnancies and health care options.

Both of those issues are squarely outside CCJL's policy purview - unless the bills use private lawsuits as an enforcement mechanism. That's why CCJL opposes both bills, so long as the personal injury lawsuit provisions remain.

Under SB 281, if a crime is committed by someone determined to be an illegal alien, crime victims would be allowed to sue the local jurisdiction for damages. Ironically, crime victims cannot sue state or local governments for criminal acts committed by legal residents. That is, you cannot sue the police department for failure to prevent a crime.

It's doubtful that a crime victim could prove all of the elements necessary to successfully bring such a lawsuit against a "sanctuary jurisdiction." So, the lawsuit provisions may be an empty threat.

SB 284 includes a "kitchen sink" provision that allows someone who suffers a "loss or injury" due to an abortion provider's failure to provide required information to sue for "damages, punitive damages, treble damages, and such equitable remedies as the court may deem appropriate." Translation: sue for everything your lawyer can dream up!

Government's job is to see that laws are followed, so lawmakers should enforce the law through state agencies, not by unleashing an army of personal injury lawyers to do their bidding.
For more background, read CCJL's issue papers on the perils of enforcement through private litigation or about the rational basis for limits on governmental liability.


HB 1254: A cynical attack on common-sense lawsuit limits

Monday, March 27, 2017

On Wednesday, March 29, members of the House Judiciary Committee will be presented with a plea to eliminate limits on non-economic damages in lawsuits related to the wrongful death of a minor (under age 21). 

House Bill 1254 (sponsored by House Majority Leader KC Becker, D-Boulder) threatens dissenting lawmakers with the axiom, "If you're explaining, you're losing!" After all, who wants to explain a "heartless" vote to deny parents damages for "emotional stress" or "loss of enjoyment" when a loved one has been taken from them due to the wrongful act of another?

That's tough duty, but in this case, it's the right thing to do.

First, recall that there are no caps in Colorado law for actual (economic) damages.



Next, keep in mind that non-economic damages address factors that are subjective or unquantifiable, such as "pain and suffering" and "emotional stress." These are damages, to be sure, but there's no matrix by which to objectively evaluate the "value" of those damages. One jury might award $500,000; another hearing the same facts might award $5 million.

The purpose of limits on non-economic damages is to balance the legitimate interests of the family to be compensated for the emotional cost of a tragic loss while preserving the ability of consumers, in general, to afford insurance.

HB 1254 is so broadly written that it even eliminates caps on damages brought against non-profits - like Boy Scouts, Girl Scouts and summer camps - and those brought against city recreation leagues or schools. If this bill passes, the cost of purchasing necessary liability coverage for those activities will be severely affected - and those costs will be passed along to parents.

Worse still, the bill does not merely lift the caps for wrongful death. It stealthily lifts the cap on injuries "recoverable in an action" for wrongful death.

Today, these damages are capped at $436,070 and can be raised to higher levels in particularly egregious cases. These are common-sense limits that should not be raised in this ham-handed manner.