On Saturday, November 26th, the Chattanooga Times Free Press, in a front page article, reported on the limitations placed on damages by the Tennessee legislature and Governor Bill Haslam in 2011, and how that law could severely limit recoveries by injured children and the parents of those who were killed. Here are excerpts from the article by Zack Peterson, Courts Reporter:
“Families of the children killed in Monday’s bus crash can receive no more than $750,000 in personal damages under Tennessee law.
Tweaks made in 2011 to Tennessee’s tort reform law limited payouts in personal injury lawsuits against doctors and other businesses to $750,000.
That will include family members who consider filing civil lawsuits against Durham School Services and Johnthony Walker, the bus driver who lost control of his vehicle and smashed into a telephone pole and a tree. Six children died from the crash and many more were injured.”
“In the early 2000s, Tennessee’s and Georgia’s general assemblies pursued tort reform after complaints from doctors that their insurance rates were raising because of fat damage awards in frivolous malpractice lawsuits. The doctors said they might have to leave the states if lawmakers didn’t cap non-economic damages, such as pain and suffering.
Tennessee lawmakers settled on a $750,000 cap, but jurors can award any amount up to that — or nothing at all.
A Republican-dominated General Assembly extended the cap to all businesses in 2011, archives show.”
“The cap applies to all personal injury awards,” said attorney Hu Hamilton. “And a lot of states just address medical malpractice. But Tennessee took a broad-brush approach and applied it to everything.”
Hamilton said he sued Durham School Services, the private company that provides most of the county’s school buses and drivers, in 2013 after a bus driver crossed the center line and caused an accident. That suit ended in settlement in 2015.
“They’re a very big company. They’re very well off. And they have plenty of insurance,” Hamilton said of Durham. “For a child, which is the context we’re talking about, the money goes to the parents. And $750,000 for the loss of a child is almost an insult.””
“One lawsuit can assert claims for medical expenses, pain and suffering, and any other non-economic damages. In Tennessee, juries break down each one, assigning a monetary value to each, Hamilton said.
However, if a jury returned an amount higher than $750,000 for non-economic damages, the judge would have to go back in and reduce that amount, because the cap still applies, Hamilton said.”
However, there is hope in a constitutional challenge, and there could be other options. Any lawsuit involving the death of a child or a severely child should include a constitutional challenge to the caps. In other states, including Georgia, the courts have found such arbitrary limits to be an unconstitutional infringement of the right to trial by jury. The Tennessee Supreme Court has the power to find Tennessee’s $750,000 cap to be unconstitutional, but has yet to rule.
Filing suit in another state, such as Illinois should also be considered, and all other options should be considered, including punitive damages, if appropriate.