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Mark Ballard: Yes, the tort reform fight will be intense in Legislature’s upcoming session

February 8, 2020
Originally posted on The Advocate

Commissioner of Administration Jay Dardenne said the state budget would be the biggest issue facing the Louisiana Legislature that begins in one month on March 9.

A sharply divided Louisiana House and state Senate likely would focus on how state government funds education — from expanding services for early childhood to more money for colleges, he said.

Republican legislative leaders drew a line with Democratic Gov. John Bel Edwards by refusing to go along with predictions that more money is available for spending next year. But in the end, who is against increasing accessibility to day care with an educational component?

No, the sharp partisan lines will be drawn over “tort reform” and that donnybrook will happen early in the session.

Even Senate Finance Committee Chairman Bodi White, R-Central, conceded that GOP members were far more interested in talking about tort reform at a Republican retreat last week.

“I look for a number of members to shoot that out of the cannon right off,” White said.

A cannon is an apt metaphor.

Tort reform, that is, passing laws that restrict an individual’s ability to sue businesses and insurance companies, has always been a vicious fight. This year fisticuffs will be more intense as Republican majorities in the House and Senate flex their muscles against a Democratic governor who has been backed by lawyers who represent victims.

The strategy, several Republicans and lobbyists say confidentially, is to put a bill on Edwards’ desk early enough in the session that lawmakers don’t have to reconvene to override a veto, should that be the governor’s choice.

The Senate would need 26 votes to override and has 27 Republicans. The House would need 70 votes and has 68 Republicans.

Overrides are rare.

In 1991, the Legislature overrode then-Gov. Buddy Roemer’s veto of the nation’s most restrictive anti-abortion bill. And in 1993, the Legislature overrode a veto by then-Gov. Edwin W. Edwards that restored $3 million to the Attorney General’s budget.

But that’s it as far as legislative overrides go — all the way back to 1921. (Before then, the records are incomplete.)

Insurance companies have signed up 48 lobbyists for the upcoming session, according to the Board of Ethics disclosures. The Louisiana Association of Business & Industry, the powerful Baton Rouge group that poured money in the campaigns of many of the winning legislators in last fall’s campaigns, as well as the Pelican Institute conservative think tank in New Orleans and the U.S. Chamber of Commerce advocate for tort reform. Plus, conservative bloggers and radio talk shows have been flogging the idea that the high prices for auto insurance is a result of greedy people and greedier lawyers.

On the other side, a new group formed, called “Real Reform Louisiana,” and led by Eric Holl, the communications director for Edwards’ campaign, said last week: “Tort reform won’t lower car insurance rates, but it will make it easier for insurance companies and big corporations to avoid compensating legitimate victims of negligence.”

Of the 48 bills already filed for consideration, House Bill 9 is pretty much identical to an unsuccessful measure last year. House Bill 46 would expedite civil jury trials, which addresses one of the complaints by judges who say that lowering the jury threshold would slow resolution because criminal jury trials take precedence.

Among the 27 pre-filed Senate bills is Senate Bill 12, which would allow juries to hear if the victim was wearing a seat belt. Four others seek to prohibit insurance companies from considering nondriving factors — such as age and credit worthiness — when setting rates.

The main effort will be the legislation soon-to-be filed by state Sen. Kirk Talbot, R-River Ridge. He argues that Louisiana’s first step toward lower auto insurance rates is to align the way trials seeking monetary damages are handled with what the rest of the country does.

As a state representative last year, Talbot’s Omnibus Premium Reduction Act of 2019 cleared the House but was rejected in Senate Judiciary A committee on arguments that the changes wouldn’t result in lower prices for auto insurance.

The primary components of Talbot’s bill are: Decreasing the jury threshold from $50,000 to $5,000, which would send more trials to juries, rather than judges; extending the time to file a lawsuit from one year to two, which would give the parties more time to settle a dispute; eliminating the “collateral source” rule, which would limit what plaintiffs could collect from insurance companies for injuries; and requiring the defendant driver be sued by name instead of his insurer, who ultimately will pay.

Now a state senator, Talbot said he is tweaking last year’s version.

“It will create a more competitive climate and strengthen the argument that the bill will lower rates,” Talbot said last week. He’s hopeful that a veto override is unnecessary, pointing out how much support tort reform has.

“Clearly people want something done,” Talbot said.