That’s
how Louisiana legislative Republicans have set him up over tort reform,
pursuing a dual track strategy that gives him no choice but to pick a policy
option he doesn’t want. As the last dozen days of the First Extraordinary
Session approach, GOP legislative leaders have chosen to employ an iron fist in
a velvet glove.
Last week, Edwards
vetoed from the regular session SB 418 by Republican
Sen. Kirk Talbot,
which would align Louisiana’s tort laws closely with those of other states that
have far lower vehicle insurance premium rates. With the special session afoot,
leadership could have attempted a veto override, and probably would have succeeded,
although likely
having to avail itself of some strongarm tactics to do so.
Instead, they have chosen to eschew that and to try again. The instrument settled upon, HB 57 by GOP House Speaker Clay Schexnayder, in its current posture tracks fairly closely SB 418 with one major exception: the period in which a case may be brought stays at one year rather than extended to two, ironically a matter to which Democrats have least objected.
That bill picked up several
House Democrat votes
over what SB 418 drew that put
it well above the veto override threshold, but that probably doesn’t reflect
genuine satisfaction with it. Instead, it represents political calculations
based upon the other prong of the GOP strategy.
This parry involves
suspending key parts of code and law that would alter more drastically the
present tort regime. The Legislature may suspend measures through the end of
the next legislative session plus 60 days by simple majorities, not subject to
a gubernatorial veto. Joint resolutions suspending much of what HB 57 would change
permanently by Republican state Rep. Alan Seabaugh
and GOP state Sen. Robert
Mills are working their way through the process, with final approval by
both chambers needed by Jun. 30.
In Wednesday’s Senate Judiciary A Committee,
all of HB 57 and Mills’ SCR 14, 15 and 16 went to
the Senate floor on party-line votes. Member Democrat state Sen. Jay Luneau – who
as a personal injury lawyer appeared to make at
least $200,000 last year to supplement property with his spouse valued at a
minimum of $430,000 and likely would see that income diminished with reform – tried
to serve as the battering ram against the attempts to lower rates.
He
and his allies saved their biggest skirmish for SCR 16, which would suspend
the jury trial threshold of $50,000 for tort cases, most of which involve vehicular
accidents. This draws their strongest objection because of how the system works
in Louisiana.
With such a high
threshold – most states don’t have one and of the few that do, none other is
higher than $15,000 – trial lawyers can push many of their cases in front of
judges, who are elected and whose campaign committees draw a huge proportion of
their funds from trial lawyers. By contrast, not only are juries a less
reliable source of favorable and higher judgments for plaintiffs, but they present
higher initial startup costs as in Louisiana the plaintiff parties must put down
bonds to fund juries (either side may request a jury trial).
This limit makes civil
jury trials in Louisiana almost as rare as Tulane University football championships.
Of
the 42 districts in the state that conduct these, 16 didn’t even have one
in 2019 and only 176 occurred statewide. By contrast, over 140,000 civil cases
were filed, encouraged by the high threshold.
By suspending through
early August, 2021 the threshold entirely for suits requesting damages (it
still would apply to other kinds of cases), Luneau argued this would flood the
district courts with jury trials, a line or argument picked up by Democrat former
state Rep. Glenn Ansardi, now a (Republican) district judge and representing
them, and Debbie Hudnall, a Democrat former East Feliciana Parish clerk of
court now representing them statewide. They complained also that the courts could
see more cases coming from courts of limited jurisdiction (such as parish and
city courts with concurrent jurisdiction to certain amounts in controversy,
which heard over 92,000 civil cases in 2019) because those have only judges and
so this would drive up district costs, and the immediate application of the
suspension gives little chance to prepare for the change.
But assuming that a
bench trial automatically converts into a jury trial is greatly overstated. More
cases will have juries hear cases. However, the vast majority of these cases
likely would come to a settlement prior to their commencement. The real problem
opponents have with a large increase in the number of settlements is these likely
typically would result in lower awards than what they could have gotten from a
bench trial, meaning lower incomes for trial lawyers that prompts them to
reduce their campaign donations.
Still, let’s assume the
dire scenario occurs. If these resolutions cause such chaos, opponents such as
Edwards have a solution – enact HB 57. On this issue, it would set a threshold
at $10,000 starting in 2021, so alleged problems are solved, if the alternative
of zero immediately is so cataclysmic.
What Republicans plan to
do is send HB 57 to the governor and keep the resolutions in either chamber on
the brink of passage. They will give Edwards a deadline to sign not long before
the session must adjourn (the timing is such that he wouldn’t have to sign or
veto prior to session end, so an override couldn’t occur before the
conclusion). If he doesn’t comply, the resolutions will be passed. They will because
Republicans have healthy majorities in each chamber.
So, Edwards has a choice
to make. He either can go along with the “lite” version of tort reform as in HB
57, or he will have thrust upon him temporarannually y resolutions about which
he can do nothing that institute it in a more draconian fashion even less to
his liking. And nothing can stop the Legislature from doing the same thing as
many times as it needs to get Edwards to yield or see him leave office.
He would be foolish to
do anything but yield, and legislative Democrats know it. That explains their defectors
on HB 57: most of that cohort don’t really support tort reform and wouldn’t
vote to sustain a veto, but generally their constituents favor it. So, knowing
tort reform is inevitable one way or the other, they want to look like they do
as well.
Checkmate. As long as Republicans
stay the course and avoid procedural mines, in one form or another (although it
will be trickier for insurers to provide with rate cuts the temporary
resolutions) long-suffering Louisianans will start to see some vehicle insurance
rate relief – and lower prices from the commercial insured who can pass rate
relief on to their customers – starting in the next few months.
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