Caps On Damages

Several years ago Ohio’s lawmakers enacted “tort reform,” which included “caps on damages.” Damage caps place a one-size-fits-all limit on what most injured people can receive in compensation for pain, disability and destruction of their quality of life. With the political changes brought on by the November 2016 elections we can expect to see similar tort reform in Kentucky, and probably on a national level. Insurance companies love “caps,” and they generously support the politicians who will give them these laws. Why shouldn’t they? Damage caps allow insurers to win just as many cases as ever (there’s no lower limit), but guarantee that if they lose the amount will be artificially limited or “capped.” The deck is stacked in their favor. Not surprisingly, when insurers and other big businesses go to court to enforce their own legal rights, there are no such limitations.

Most people are simply unaware of these laws. When I discuss damage caps with my clients they are often shocked that such an unfair system could exist in their state. Unfortunately, aside from lawyers and those few unfortunate people who are catastrophically injured, there is little political resistance to “tort reform.”

But laws have consequences. And “caps” in particular can be the most cruel. That’s because caps on compensation apply to people who have been the most seriously injured – the very ones who most need to be helped. Take for example the Ohio Supreme Court’s December 2016 decision in Simpkins v. Grace Brethren Church of Delaware, Ohio, Slip Opinion 2016-Ohio-8118. That case involved a minor who was raped – twice – by a pastor in her church. After a trial that must have been agonizing for all concerned, the jury returned a verdict awarding the poor child $3,500,000. Few would argue that she did not deserve that verdict. What the Simpkins jury did not know was that their decision had little real meaning because, after the trial, the Judge was forced to gut their verdict to comply with Ohio’s “caps.” An appeal was taken all the way to the Ohio Supreme Court. Many thought this might be the case which would motivate our highest court to throw out – or at least to limit – the harsh application of damage caps. It was not to be. The Court fully applied the caps, even calling the two rapes one “occurrence,” further limiting the child’s compensation. The young girl who suffered two rapes ended up receiving roughly 10% of what eight Ohio citizens (the jury) felt she deserved. The defendants and their insurer kept the rest.

Some believe that sheer embarrassment will cause Ohio’s lawmakers to carve out an exception to the caps for rape and other sexual assaults. But being sexually violated, however horrible, is only one form of injury. Allowing an exception in only those cases might make legislators feel better, and provide them with “political cover,” but such a limited change would do little for the many other Ohio citizens who are unfairly punished by damage caps.

As a lawyer who represents seriously injured people and their families, I tend to see damages caps from my client’s perspective. The Simpkins case, however, caused me to think about the Ohio citizens who give their time and wisdom when they serve on juries. They hear the evidence, consult with one-another, then render a verdict which they believe to be fair. Later they are told, essentially, that they wasted their time. Why only “later?” Because it is written right into Ohio’s tort-reform laws that jurors are not to be made aware of the “caps.” One wonders why the lawmakers who passed this “tort reform” felt it was so important to hide it from the very people who take an oath to follow the law and render a just verdict. Did they realize that people who see how caps actually effect their fellow citizens would not like these harsh laws?

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