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Louisiana tort reform might not be as great as defendants might think

| Feb 25, 2021 | Civil Law

Insurance companies, self-insured employers and other interested parties have been lobbying for tort reform in Louisiana and throughout the country for many years. In certain aspects of personal injury litigation, plaintiffs had significant advantages. For example, collateral damage claims were skyrocketing, forcing defendants to pay medical expenses far above what plaintiffs were having to pay out of pocket.

While recent legislation has done some good work to remedy some of the problems inherent in Louisiana tort law, the fact is that there is a lot left undone.

Louisiana’s Civil Justice Reform Act of 2020

Louisiana’s Civil Justice Reform Act of 2020 (the CJRA) became the law for the state at the beginning of this year (2021). Like most laws put into effect, there are significant benefits and deficiencies. In short, it is not everything it is cracked up to be.

The positives

In some ways the recent Louisiana tort reform appears to benefit insurance companies and defendants. The CJRA changes the collateral source rule, which means that plaintiffs are limited in claiming medical expenses that don’t match their actual medical expenses. Basically, this is a decent idea.

The new law also does some work in shielding insurance companies in the proceedings. In general, plaintiffs are not allowed to mention insurance companies by name during the actual proceedings of a trial, except at the beginning and end of the trial where the insurers could be named as defendants.

At least on the surface, these are positives signs.

The negatives

However, there are some negatives as well, and even the positive aspects of the legislation do not go far enough in their efforts.

Issues and challenges with this new legislation include:

  • A lowered jury threshold: The old law required a claim of at least $50,000, which is now lowered to $10,000. This means that much smaller cases that could have been settled quickly will involve the added time and costs of jury trial.
  • A still overly generous collateral source rule: Although the new collateral source rule puts some limits on how much extra plaintiffs can claim for medical expenses, the final rule is hardly equitable, as it still forces defendants to pay upwards of 40% of the difference between what the plaintiff was charged and what he or she actually paid. Common sense would dictate that the plaintiff should not be able to claim anything over and above a plaintiff’s actual damages.
  • A small win in the insurance company shield: Although there is some good in prohibiting plaintiffs from naming the insurance companies during the trial proceedings, it is a small win for insurance companies. Most jurors will know the insurance company involved. Further, this rule doesn’t seem to offer any related shielding for self-insuring employers.

These are some of the weaknesses in the new Louisiana tort-reform legislation. As time goes on, the problems, limitations and loopholes will be revealed as more cases are litigated under the new law. As these changes transpire and the details are revealed, it is important to have an experienced personal injury defense lawyer on your team who can help you navigate these complex changing laws.