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Injury bill gets to N.C. Senate
If passed, it would change the way lawsuits are settled
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Published: July 13, 2009
Lisa Vogel thinks that under a fairer legal system, she would have won the lawsuit she filed against the drunken driver who killed her son in 2005.
But North Carolina is one of four states, along with the District of Columbia, that still uses a legal rule that says that if you contributed in any way to your injury, you will not recover any money in a lawsuit.
Jackson Vogel, an Appalachian State student, got into a car one night on Memorial Day Weekend with a friend's roommate. The roommate drove and soon ran off the interstate, flipping the car and killing Vogel.
The roommate was convicted of involuntary manslaughter and DWI in Vogel's death, but successfully defended himself against the Vogels' civil lawsuit by claiming that Vogel, who had been drinking, was negligent in getting in the car.
"I say this is the ‘you should have known better' law," Lisa Vogel said. "This law is just a bad law."
After repeated attempts during the past three decades, a bill to rewrite North Carolina's system has passed the House for the first time and is in the Senate. The bill's primary Senate sponsor is Rep. Pete Brunstetter, R-Forsyth, an attorney.
"I think it's hard to justify North Carolina continuing to hang onto a tort system that is so out of step with the rest of the country," he said.
Torts are legal claims of injury, such as assaults, medical malpractice and negligence. How those claims are decided deals with fundamental issues of fairness: Who's to blame? What should be the penalty? Who should have to pay it?
Those who oppose any changes say there's no groundswell of support for a new system that they say will lead to higher insurance rates and an increase in lawsuits.
"The business community isn't for this; the man on the street is completely indifferent because it's just not a burning issue. But to the trial lawyers, it's a pocketbook issue," said Rep. Jonathan Rhyne, an attorney and Republican from Lincolnton. "The easier it is to sue, the more money they make, pure and simple."
The bill, which passed the House 72-43 in May, would institute a system in North Carolina called "comparative fault," which asks judges and juries to decide who's at fault and award damages according to each side's share. People suing would recover nothing if they are found more than 50 percent responsible for their own injury.
As an example, say a negligent driver was 70 percent responsible for striking a pedestrian and the pedestrian was 30 percent responsible. The pedestrian would be able to recover 70 percent of what the jury said the pedestrian deserved.
Under the state's current system, the pedestrian would recover nothing, unless his attorneys can argue for one of the limited exceptions to the rule. That's what makes it hard for people such as the Vogels even to find an attorney to take their case.
Other people affected by the law give examples of being told by insurers that a small traffic mistake sharply limits what they can collect on their policy, even when the other driver was drunk, or failed to yield. They say it's a harsh rule that allows careless people or businesses to avoid being punished by blaming the people they hurt.
Out of more than 27,000 lawsuits filed in the state's superior courts last year, slightly more than one-third of them were negligence lawsuits.
Most of the 46 states that have moved away from contributory negligence did so decades ago, either by a ruling from their supreme court or through legislation.
Brunstetter said that if the Senate doesn't get to a vote on the bill in this session, it can come up for a vote in the short session that will begin next year in May.
"I think it's got a reasonable chance of passage," he said. "It had fairly good bipartisan support and there's quite a bit of interest in it in the Senate just because people are familiar with the harsh results."
The Insurance Federation of North Carolina, a trade group for insurers, hasn't taken a stance on switching to a new rule, but opposes the bill in its current form, said Jennifer Cohen, the group's executive director.
Many other state laws are affected by the change -- for example, if you're suing someone over a car accident, evidence about whether you were wearing your seatbelt is not allowed to be used at trial. Under a system that focuses on dividing up responsibility for injury, it makes sense to change that law, Cohen said.
"And we also need to realize that in all probability that auto-insurance rates will increase. And maybe that's OK," she said. "Maybe we're willing to say that in the interest of fairness we're all willing to pay a little bit more in auto insurance."
A report from one national insurance group says that when South Carolina made the switch in 1991, the average car-insurance rate rose 2.6 percent higher than the national average the next year.
States with North Carolina's current system vary in their average car-insurance rates -- Washington is one of the most expensive places to insure a car, Maryland has higher than average rates, and North Carolina, Virginia and Alabama have below-average rates. By some measures, North Carolina is among the five states with the lowest rates, though the state excludes from its numbers a large pool of high-risk drivers.
The bill in the Senate would also make a major change to state law by eliminating a legal rule that says that if a plaintiff wins a lawsuit against several defendants, each defendant can be held responsible both for paying their share of the damages and the shares of the other defendants.
That change hasn't been enough to earn support from the N.C. Chamber, which says that the new law should do more to protect a business with a small amount of responsibility for an injury.
Sherry Melton, a spokeswoman for the group, said that under the current law, someone could sue several defendants and recover money from everyone, even if a business' share of responsibility is smaller than that of the person suing. For example, someone could win a lawsuit in which they were 40 percent responsible for their injuries and the two defendants sued were each 30 percent responsible.
"In our mind, we need to strike more of a balance, if we're going to make changes," she said.
Also in dispute is whether the change will lead to more litigation. More attorneys would be willing to file lawsuits, insurers say.
But there's also a good incentive to not drag out cases, said Burton Craige, legal affairs counsel for the N.C. Advocates for Justice, an association of trial attorneys.
"People are going to be able to resolve these cases earlier when they know that it's not an all-or-nothing proposition," he said.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
The Tort System
These are a few examples of recent civil lawsuits in Forsyth County in which someone being sued claimed that the person suing them contributed to his own death, or began to pursue that defense:
□ In the death of Joshua Palomares-Beckles, a 7-year-old killed by a drunken driver while riding his bicycle, attorneys for the driver and others sued have said Joshua, who was near the curb, was negligent in failing to look for cars and rode into an intersection without stopping.
□ In a civil lawsuit against a nightclub and concert promoters over the death of Sgt. Howard Plouff, an attorney for the concert promoter has filed court papers saying that Plouff contributed to his own death by not taking cover when shots were fired.
□ An attorney for Tolly Carr, a news anchor who drove into a construction zone and crushed a pedestrian on the sidewalk, sent questions to attorneys for Casey Bokhoven, the pedestrian, asking about his blood-alcohol content, an early indication of pursuing the defense that Bokhoven's impairment played a role in his death.
□ A settlement was reached in the lawsuit involving Carr. The Plouff and Palomares-Beckles lawsuits are still being litigated.
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