Maryland Upholds State Caps on Injured and Killed: When Will They Learn That Safety Trumps Profit?

Maryland’s highest court upheld a state law, last week, that limits the amount of money people can receive for suffering in lawsuits. The Court of Appeals ruled against the parents of a 5-year-old boy who drowned in 2006. The couple filed a wrongful death lawsuit alleging that DRD Pool Service, Inc. was negligent in maintaining the pool. A jury awarded the couple almost $4 million, but due to Maryland’s cap on non-economic damages, they payout was reduced to ¼ the determined value.

When first set, Maryland’s cap was $350,000. In 1994, lawmakers increased it to $500,000, and stated that it should grow by $15,000 every October. The cap is currently $725,000 or $1,087,500 in a wrongful death claim. The couple argued that the cap was unconstitutional. I agree with the couple; I have been an outspoken critic of any arbitrary legislatively mandated damages cap. Damage decisions belong to the judicial branch, not the legislative branch. And, this one size does not fits all solution to a problem that doesn’t exist (so-called "lawsuit abuse", an invention of the insurance industry and the US Chamber of Commerce.

Those with more serious injuries are less likely to receive the full award in a settlement than those with less-serious injuries whose damages don’t exceed the cap. Bottom line is that caps put less value on more serious injuries, even death; the more seriously you are hurt (or, if you are killed), the less your life is worth. How can anyone think that this is reasonable? How would this make you feel if it was you or one of your family members? What if you lost your child due to the negligence of another? And why is the "personal responsibility" party, the Republicans, on the wrong side of this issue? Because, they are in bed with big business and big insurance, both of whom contribute substantially to Republican campaigns.

Back to Maryland; the court ruled that there was a rational basis for the cap because it was meant to keep liability insurance affordable. How do you rationalize the loss of a child? How can you compare the cost of insurance to a life? “In our view, the cap continues to serve a legitimate government purpose,” the opinion said. No it doesn’t! It serves legitimate insurance interests. There is no credible evidence that damages caps have saved even a single penny in insurance premiums. How about serving the interests of the people of Maryland rather than the insurance industry? Capped injured people are citizens too. And the citizens who must pick up the support of these injured people, in the form of public assistance, are citizens too. What about their interests? Their rights?

An attorney for the pool service had this to say:

“The way insurance companies set their rates is based on predictability…When you have no cap, the sky is the limit and it places insurance companies in a very difficult position.”

I am not shedding tears for the richest corporations in the world. How does the family of a catastrophically injured child pay for a lifetime of misery, care and treatment on these small capped awards? I am telling you, people; it is you and me, the taxpayers, who will pay the difference. And the insurance company, which took premium dollars, at substantial profit, is let off the hook to make record profits and pay multi-million dollar bonuses to its executives. The wool is being pulled over your eyes.

Here, we have another case of ludicrous. By imposing caps, we penalize innocent victims, excuse those who made them victims and let the insurance companies laugh at us, all the way to the bank. This "profit over safety" mentality is putting all of us at risk. Caps do not decrease lawsuits; safety increases lawsuits. How do we improve safety? Make it cost too much to continue to be unsafe. If big business won’t adhere to the highest of safety standards, why shouldn’t they suffer the highest of consequences. People are being seriously injured, permanently disabled, and dying because corporations are acting irresponsibly. Businesses should pay, and pay dearly, until they get the message and do something about it.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff who is involved in pending personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.