Arbitration Arbitration is a substitute for the right to go to Court. In arbitration, an individual or panel of individuals decide the dispute instead of a judge or jury in a court of law. Binding arbitration is often inserted in consumer contracts as a mandatory method for resolving all disputes. Consumers rarely have any right to negotiate the arbitration terms. Arbitration and other forms of alternative dispute resolution (ADR) processes can be a useful tool if the parties have equal bargaining positions. It is an unfair process when it is imposed on consumers, employees, and small businesses – who are in a weaker economic position – by bigger wealthier businesses. Mandatory binding arbitration clauses are typically found buried in the fine print of credit card, cell phone and nursing home admission agreements, and even in some employment contracts. Arbitration has several characteristics which make it harder for an individual to prevail in disputes against the business, including steep case filing fees and hourly rates for each arbitrator from $100 to $450 per hour as well as provisions that defeat legislatively-enacted consumer protection laws. Deposits of $25,000 are a common requirement to bring a case. Arbitration panels are inherently biased against consumers, as big businesses will use the same panel exclusively for hundreds of arbitrations, but the consumer will only use arbitration once in a lifetime. If the arbitrators don’t rule in favor of the companies, the agreements are re-written by the companies to choose new arbitrators.
Civil Justice System The civil justice system is the court system used in America to address civil (as opposed to criminal) disputes. Cases that are heard in the civil courts include physical injury that resulted from an accident or dangerous product, financial loss, discrimination, violation of civil rights, contractual disputes and cheating or financial fraud. Americans are guaranteed the right to a civil jury trial in the Seventh Amendment to the U. S. Constitution which states, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” In the last ten to fifteen years, arbitration (see above) has been a common method used to take away the right of citizens to use the Civil Justice System (i.e. go to court).
Collateral Source Collateral source refers to benefits received by an injured person from some source other than the party who caused the injury. The most common collateral sources are the injured person’s own health, disability, automobile and workers’ compensation insurance.
Collateral Source Rule The collateral source rule prevents a wrongdoer from profiting from the fact that the injured party has the ability to pay for the damage caused. It means that when you buy health insurance, for example, you buy it to protect you, and not some other person who might hurt you. The rule ensures that the wrongdoer bears the full financial burden for the plaintiff’s injuries and property damage—a responsibility that should not be lessened because the injured person has insurance. Contrary to what some may claim, this does not lead to “double-dipping” by the plaintiff. Virtually every insurer that could be a collateral source, including government benefit programs like Medicare and Medicaid and workers compensation, have subrogation provisions in their policies which require the plaintiff to repay whatever benefits that have been paid should the plaintiff collect from the wrongdoer.
Contingency Fee The contingency fee system is the “key to the courthouse” for thousands of Americans. It allows an individual injured by a negligent wrongdoer to hold them accountable without needing the resources to pay up front for an attorney. Rather than charging for legal services by the hour, an attorney agrees to accept a portion of the recovery in the case. If the plaintiff receives no compensation, the attorney receives nothing. Since attorneys bear all the financial risk if there is no recovery or if the recover does not cover their costs, they are not likely to take cases they believe lack merit. Contingency fees also force attorneys to act efficiently, since costs are advanced by the attorney rather than the client. Insurance companies often criticize the contingent fee because wealthy insurance companies can afford to hire attorneys for hundreds of dollars per hour. They know that ordinary people in the United States could never afford well-qualified attorneys if they were required to pay attorneys’ fees up front.
1. Compensatory Damages: Compensatory damages compensate a plaintiff—one who brings a lawsuit—for injury or loss. Compensatory damages are subdivided into two types, economic and non-economic damages.
a. Economic Damages compensate plaintiffs for losses that are easily measured such as lost wages, car repairs, other property damage, medical bills, etc.
b. Non-Economic Damages provide compensation for injuries and damages that are not easily quantified by a dollar amount. They are often as important or more important to the injured person as the losses that can be directly converted into dollars. Non-economic damages compensate for losses such as blindness, physical disfigurement, loss of reputation, emotional distress, loss of fertility, loss of sexual function, loss of a limb, loss of mobility and loss of enjoyment of life. These damages recognize that an injury is often more damaging than just the economic loss. A person who loses a limb because of a reckless driver loses more than the “cost” of a prosthesis. A person who is wrongfully fired and loses the ability to support his or her family is damaged by more than the value of lost wages. A woman who loses the ability to bear children through medical negligence loses more than the cost of her medical care. Non-economic damages are designed to compensate these and related losses that affect quality of life.
Note: Non-economic damages are often more important to those who do not work outside the household, such as the elderly, children and homemakers. That’s because plaintiffs who do not work outside the home cannot collect a “lost wages” portion of economic damages. The “value” of a homemaker’s work inside the home is not easily measured by a dollar amount and would only be compensated through non-economic damages. Efforts to limit non-economic damage awards specifically target the most vulnerable in our society—the elderly and our children.
2. Punitive Damages: In some cases, punitive damages are appropriate to punish a defendant for willful and/or malicious acts that go beyond mere negligence. Unlike compensatory damages, which are awards to make a plaintiff “whole,” punitive damages are awarded to punish and deter egregious behavior which is unacceptable in our society. Reckless actions, like drunk driving, and deliberate misconduct, like defeating safety guards on machinery, are examples of the kind of conduct justifying punitive damages. Punitive damages are awarded very rarely and are subject to very detailed review in our Courts. Punitive damages deter wrongdoers from acting recklessly or engaging in behavior that they know will hurt people, such as placing defective products on the market knowing that they are likely to injure someone.
Damages Cap A damages cap is a law that limits the amount a jury can award for damages, no matter how serious the injury might be. Some state legislatures have enacted caps in civil cases and some have not. Some caps are only for specific kinds of cases. For example, West Virginia caps non-economic damages in medical malpractice cases at $250,000. In emergency room trauma cases there is a cap on all damages of $500,000. As a result of the latter cap, if a child is paralyzed as a result of carelessness in the emergency room, that family can receive only $500,000 for the lifetime care of that injured child regardless of the cost of future medical expenses. This is true even if there is a $10,000,000 insurance policy purchased for just such a situation – the child and Medicaid ends up picking up the tab for those injuries.
Deliberate Intent / Exposure All employers have a responsibility to ensure that their facilities and work sites meet written federal and state safety standards as well as written standards for that particular industry. Employers who knowingly fail to provide safe work sites place their employees at risk of serious injury or death. A worker who is injured or killed on the job as the result of being exposed to known unsafe working conditions can file a deliberate intent/exposure claim. In West Virginia, a worker who is injured where the employer knowingly violates safety laws, safety regulations or written safety standards may file a deliberate intent claim if it meets all five elements of the test established by state statute:
1. A specific, unsafe working condition exists which presents risk of serious injury or death;
2. The specific, unsafe working condition is a violation or contradictory to federal, state or written industry safe workplace rules and regulations;
3. The employer through its management knows the unsafe working condition exists and the risks that it presents;
4. The employer nevertheless exposes the employee to the unsafe working condition; and
5. The employee is injured or killed.
If any one of these elements is found not to exist, there is no claim and the case fails. Given West Virginia’s long history of on-the-job injuries, particularly in the coal mines, the availability of deliberate intent claims is a crucial tool to hold companies accountable for unsafe practices.
Joint and Several Liability Joint and several liability is a rule of law that has been followed in West Virginia and across the country for decades. Joint and several liability enables an individual or business to bring one lawsuit against all the persons and entities responsible for causing injury and/or damage to the individual or business. If the jury finds for the plaintiff, fault is apportioned among the defendants based upon the level of each defendant’s responsibility. If one defendant is unable to compensate the plaintiff, then its share is split among those who can. This is done so that the plaintiff can be made whole. Our civil justice system has determined that it is the injured party—not the wrongdoers—who deserves the greatest measure of protection. West Virginia has placed limits on joint and several liability which, in some cases, will prevent innocent victims of negligent conduct from recovering all of their damages.
Liability Liability is legal responsibility under civil law. In the context of personal injury tort law, liability refers to being legally responsible for an injury or loss.
Medical Monitoring In medical monitoring cases, people who have been exposed to dangerous toxins or faulty products which may lead to illness or disease at a later date can receive compensation from those responsible to pay for ongoing medical tests to ensure that the exposure has not caused health problems or disease. This is necessary because sometimes it could take years for a disease or illness caused by the exposure to develop. People exposed to toxins need to have regular medical tests to be sure that no health problems have developed. The costs for those tests are paid by the wrongdoer since the tests would be unnecessary had the exposure not occurred. Despite claims to the contrary, when damages are awarded in medical monitoring cases, those monies are typically put into a trust to cover only medical testing—plaintiffs do not receive the money to spend in whatever way they choose.
Negligence Negligence is failure to use such care as a reasonably prudent and careful person would use under similar circumstances. If a person is negligent and an injury results, that person may be liable to pay damages for the injury.
Preemption Under the U. S. Constitution, federal law is superior to state law, and can therefore “preempt” state laws that are inconsistent. Often, federal laws are written to provide complete preemption of state laws. This can be unfortunate since many state laws often provide greater protection for consumers and/or workers.
Statute of Limitations A statute of limitations is a time limit that cuts off a plaintiff’s ability to file a case after a certain period of time. Statutes of limitation can begin to run at various points after the event that caused harm. Some statutes of limitation run from the state of the injury, even if the injury is not detected until much later. In West Virginia most, but not all, personal injury cases are controlled by a two-year statute of limitations. In some instances, the two years begins to run after the injured party discovers the harm. This discovery rule is helpful when the victim would have no reason to suspect that harm has been experienced.
Tort Barron’s Law Dictionary defines a tort as “a civil [as opposed to criminal] wrong or injury resulting from a breach of legal duty that exists by virtue of society’s expectations regarding interpersonal conduct.” A tort arises when all three of the following elements occur:
1. The defendant has a duty to a plaintiff (for instance, to operate their motor vehicle with due care, put a safe product on the market or ensure that a workplace is safe)
2. The defendant has breached that duty (by running a red light, for example), and
3. The breach is the cause of an injury or loss to the plaintiff.
If, for another example, a defendant manufactures an unsafe product (like the Ford Pinto with the exploding gas tank, and sells it to a customer, but no injury or loss occurs, there has been no tort. Actionable cases require both a wrong (a breach of duty) and an injury or reasonable likelihood of an injury, such as when someone is exposed to a dangerous chemical.
Tortfeasor The individual, business or multiple parties who commit a tort that results in injury or loss.