Day on Torts
Those of you who read the Tennessee Tort Law Letter know that I depise Tennessee’s limitations on the liability of governmental entities. I think a limb or life of a person should be worth the same regardless of whether the tortfeasor is a person, an entity, or a governmental entity.
Over the years I have been particularly frustrated with how governmental entities, protected by a damage cap, negotiate settlements. This will be no new news to those of you who represent plaintiffs, but it seems that these entities always want “to save a little.” It drives me crazy that a case worth X but subject to a cap of 1/2 X is difficult to settle at 1/2 X. My frustration with this mindset has often caused me to lash out out governmental entities and their lawyers.
Well, we have recently been involved in two cases where the response of the governmental entities and their lawyers was very different. In one, the entity offered the cap before suit was filed. To be sure, the case was worth 10 times the cap, but City stepped up to the plate, did the right thing, and resolved the case.
In a case that was just resolved in the last couple weeks, the entity and the lawyer paid the cap for the personal injury victim and a seperate payment of the full amount under the cap for his wife who had a loss of consortium claim. The payment of the cap amount – $250,000 – for the husband was easy – the case was worth many multiples of that and liability was clear. But the payment of $250,000 for the wife demonstrated a willingness to think outside the box and demonstated an appropriate but unusual degree of compassion for the suffering of this family. I told the lawyer that we would try the consortium case seperately if we had to but we would not accept less than the full amount available. I truly believe we would have received a judgment for the full amount – but it would have taken a year and would have greatly increased the attorney’s fees we had to charge (we accepted this case on an hourly basis because liability was so clear, damages were capped by statute, and the male plaintiff is in the military). The claims were resolved without fiing suit.
In both cases, the governmental defendant was presented with a fine settlement package outlining the liability and damages proof. But in both cases the defendant stepped up to the plate and did the right thing by the citizens who pay taxes in that community. For that, I thank you.
I also thank their lawyers, both of whom are fine people and fine lawyers who analyzed each case without regard to the caps and made an appropriate recommendation to their clients. They didn’t try to be “heros” and try to squeeze a few bucks out of people who suffered losses through no fault of their own. They used the caps as a shield, not a sword, and are to be commended for it.
I thought about naming these governmental entities and their lawyers by name but I did not know if that was appropriate. They know who they are, and I know at least one of the lawyers regularly reads this blog. It is 5:45 a.m. on Sunday morning and I don’t have their permission to name them so I will not .
As I said at the outset of this post, I have given governmental entites and their lawyers a lot of grief over the years. By the same token, when one or more of them does something right I have the responsibility to say so. So, on behalf of my clients and myself, thank you. Thank you for understanding their losses. Thank you for thinking outside of the box. Your decisions will help these families move on with their lives knowing that when they needed the compassion of their government the government did not look the other way. And they will also know that the opposing lawyer recognized their losses and did the right thing. You cannot believe what that means to them. And to me.