Dec. 21, 2005 The debate was hot on the Senate floor last week when Sen. Celestino A. White Sr. amended an unrelated bill with wording to remove the $75,000 cap on awards for non-economic losses resulting from an automobile accident.
Now, the debate has moved to the street in a battle that pits insurance people against lawyers.
In October, Robert King, an attorney, wrote each senator a letter asking for legislation to repeal the statue that contains the cap. King said, "The Virgin Islands has, by this statute, imposed the most arcane, unfair, backward, draconian, and least flexible non-economic damages cap on motor vehicle accident injuries of any jurisdiction in the United States."
The cap covers what is referred to as "pain and suffering" damages. There is no cap on economic losses such as medical expenses and lost wages.
This week King was encouraging residents to contact the governor and urge him "To do the right thing." The amendment, along with several other unrelated amendments, was attached to a bill appropriating $1.5 million from the General Fund to the Human Services Department to purchase the Massac Nursing facility on St. Thomas. Traditionally the governor axes these year-end amendments. (See Christmas in the Senate Means Pet Amendments).
King said with the cap, "The legislators are assuming the duties of the judge. Instead of relying on the judgment of the person who has heard the facts of the case, the legislature is making the decision."
King said the cap hurts those most susceptible in the community the young, the elderly, and the poor. He said that cases could take up to five years in litigation with the burden of proof on the plaintiff. According to King, lawyers might be discouraged from taking cases where, even if they win, the settlement will barely compensate the plaintiff. He talked about a person who becomes a quadriplegic after a car accident, "You have not diminished that person's quality of life, you have destroyed it. When you take away from a person the things he or she loves, how do you put a value on that?"
This is the same question that bothers insurance man Jim Tunick. In an opinion piece circulated to the media he wrote, "Juries all around the country have wrestled with the question, and, frankly, in many cases have let their emotions run wild and awarded millions of dollars for non-economic damages in all kinds of cases automobile accidents, slips and falls, products liability, medical malpractice, etc. Here in the U. S. Virgin Islands there was an imposed cap of $75,000 for non-economic damages arising from an automobile accident. This was included as part of the Compulsory Automobile Insurance law that was passed in February of 2000." Tunick wrote. "That cap made the legal climate more attractive for insurance companies who were considering writing automobile insurance in the Virgin Islands, and was put into the bill to help make sure that there would be enough insurance companies to provide all Virgin Islanders with affordable automobile insurance." (See Tort Reform? Not if Our Legislature Has Its Way).
Tunick, president of Theodore Tunick and Co., and past president of the V.I. Insurance Association, said Wednesday that he thought the effect would be rather quick if the governor signed the amendment; the availability of car insurance would go down and its price up. He said, "Underwriters for insurance companies are well aware of that cap and the protection offered. It gives them a sense of comfort."
King argued that most car insurance policies are what are called 10-20-10. These policies limit the liability of the insurance company to $10,000 for one person in the car, $20,000 if there is more than one injured and $10,000 in property damage. He continued that the cap did not really protect the insurance company that it only protected the very rich.
Tunick said that the Virgin Islands had the reputation before the cap was put into effect of being one of the most litigious places under the U. S. flag. He added that if the cap is repealed it will be another stroke that makes it look like the Virgin Islands are unfriendly to business.
He, too, is urging residents to contact the governor, but he wants them to "urge Gov. Turnbull to veto this ill-conceived measure."
Tunick said that the case might be made that in extreme situations the cap might not be fair, but "In general, the vast majority of the people on the Virgin Islands are well served by the cap."
Sen. Roosevelt David jumped into the fray on Wednesday with a press release directed at King.
David wrote, "Now, for the attorney to be selfishly spearheading an effort to dismantle a law which stood the test of public scrutiny for several months, in a three-minute debate is unfortunate."
King responded to that charge saying, "Yes, I am selfish. I am selfishly fighting for the rights of the little guy."
David also asked, "If there is a need to lift the cap, why not let the measure go through the committee process so all parties could have an opportunity to testify giving their input from varying aspects?"
King responded to that charge by saying, "There is nothing left to study. We know the cap is wrong."
David said that the Compulsory Automobile Liability Insurance bill has done well for the Virgin Islands and has drawn several insurance companies to the territory.
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