As reported by the Chicago Tribune on 2/4/2010, the Illinois Supreme Court struck down a provision in the Illinois “tort reform” law capping damage awards in medical malpractice lawsuits. The Court held that the Illinois state legislature’s cap on damages violates the principle of separation of powers by interfering with the jury’s role in assessing damages.

In the context of the current debate about alleged cost savings from limiting damages caused by medical negligence, the article points out a Congressional Budget Office report last September, 2009, forecasting that capping pain and suffering damages would only lower overall health care costs by half a percent.

This was the second time that the Illinois Supreme Court decided that legislative caps on damages in medical malpractice lawsuits is unconstitutional.

Rather than protecting wrongdoers and punishing victims of medical negligence, our lawmakers should reject gimmicks, trickery and scapegoating and work together to enact common sense reforms to our health care system.

• Outlaw pre-existing conditions as a basis for denial of health insurance
• Allow college students to remain on their parents’ health insurance up to age 27
• Give a federal tax deduction to individuals for their health insurance premium co-payments
• End caps on coverage by health insurers
• End the Federal Anti-Trust Exemption that creates virtual monopolies among a small group of health insurers in every state

Such common sense reforms will go a long way towards improving our health care system. Instead of targeting lawyers and innocent victims of medical negligence, all reform efforts should be focused on patient safety and improving the quality health care.

Copyright © 2010 John J. Sheehan

The purpose of Underinsured Motorist Benefits is to compensate you in case you are injured in an automobile collision and the negligent party does not have enough insurance to compensate you fully for your damages.

In Pabley v. Commerce Insurance Co. (Worcester Superior Court - C.A. No. 12-335-09) the Massachusetts Superior Court reaffirmed the limits available for optional Underinsured Motorist Benefits.

The Court held that the maximum available coverage for Underinsured Motorist Benefits (”UM”) in Massachusetts is the difference between the UM Coverage and the negligent responsible party’s Bodily Injury (”BI”) Coverage.  In Pabley, the plaintiff had optional UM Coverage through Commerce Insurance in the amount of $250,000.  The negligent responsible party’s BI Coverage was $50,000.

The BI Insurer offered the full $50,000 to settle the plaintiff’s personal injury claim against its insured.

The plaintiff and Commerce Insurance arbitrated the plaintiff’s UM claim as required by the Standard Massachusetts Automobile Insurance Policy when the claimant and UM insurer cannot agree on a settlement amount.  The arbitrator awarded $385,000 in damages.  Commerce Insurance issued a check for $200,000, i.e. the difference between the $250,000 UM Coverage limits and the negligent party’s BI Coverage limits.  The plaintiff demanded the full $250,000 UM Coverage limits.

The Court decided in favor of Commerce Insurance reaffirming a 1995 SJC decision in the case of Hanover Insurance Co. v. Pascar.

The Massachusetts Standard Automobile Insurance Policy allows the UM insurer to take an offset from the compensation paid by the negligent party’s BI Insurer.  Should the offset be calculated from the claimant’s actual damages or from the coverage amounts available through the two insurance policies?

The Court decided that MGL c. 175 §113L provides, essentially, that the amount of available coverage in a UM Claim is determined by subtracting the amount of available BI Coverage from theUM Coverage.  If the BI Coverage is for the same amount as the UM Coverage, there is no UM Claim for Underinsured Motorist Benefits.  If the BI Coverage is less than the amount of the UM Coverage, then the amount of available UM Coverage is the difference between the coverage contained in the two insurance policies.  (In Pabley, $250,000 - $50,000 = $200,000 available UM Coverage.)

Copyright © 2010 John J. Sheehan

How often have we all experienced trudging through banks of trampled, dirty snow and streams of frozen ice walking on a sidewalk in our neighborhood or local downtown shopping area? It’s like walking through an obstacle course!

What if you were elderly? A slip and fall on snow or ice could result in a broken hip or other serious injury.

Under current case law, a property owner in Massachusetts is not legally responsible for injuries caused by slip and fall accidents due to snow or ice on the owner’s property unless the slip and fall was caused by an unnatural accumulation of snow or ice. What is and is not an unnatural accumulation of snow or ice is decided on a case by case basis.

The overwhelming case law in Massachusetts is decidedly against the injury plaintiff. Massachusetts judges regularly dismiss cases under the so-called natural accumulation doctrine.

As reported in Massachusetts Lawyers Weekly, this may all change. In Papadopoulos et al. v. Target Corporation et al., the Massachusetts Supreme Judicial Court is ready to consider whether Massachusetts will continue to apply the natural accumulation doctrine.

If the Court abandons the natural accumulation doctrine, this could be a real game changer. Instead of simply dismissing cases because the snow or ice was not created by snow making equipment, Courts will actually look at the conduct of the property owner. Like any other defective condition causing injury, an accident does not mean that the property owner is automatically negligent. If a property owner fails to maintain his property in a reasonable manner — including keeping the walkways and entrance free from snow and ice — then the property owner should be liable if a person lawfully on the property is injured as a result of the defective condition even if the defective condition is snow or ice.

I’ll let you know what the Supreme Judicial Court decides. Until then, be careful out there trudging through the snowy streets of Massachusetts. Remember, Spring Training is only a few weeks away.

Copyright © 2010 John J. Sheehan