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Press Release

    A TORT CLAIM FOREVER CHANGES 1 FAMILY

    09/10/1997

    Reprinted with permission from The Orlando Sentinel

    As I sat in my car on a dark and narrow road, I watched Cheryl walk up the road until she became a speck on the edge of my headlights. She stopped when I flashed the lights.

    It was an odd exercise, but we were recreating an accident scene, and Cheryl represented a dead man. I was a driver who may have killed him.

    I had been sued by a family who was accusing me of killing their son in a motorcycle crash. We went out to that dark road hoping to revive our memory of that horrible night.

    The accident had happened almost two years earlier in Seminole County on another dark and lonely road as we were returning from a Christmas visit with family in North Carolina. A drunken Seminole County woman had pulled into the path of a motorcyclist. The motorcyclist plowed into her car at 55 mph, flipped over the trunk and hit the pavement.

    He was lying motionless, perhaps dead, in the middle of the highway, when I came through seconds later and ran over him. Cheryl and my 14-year-old son, Richard, were with me.

    The suit against me came 1 1/2 years after the accident and nine months after the drunken driver was found guilty and sentenced to 10 years for DUI-manslaughter.

    The suit did not mention the drunken driver, who had a .13 blood-alcohol content, well over the legal limit, which was .10 at the time. It didn't say what I supposedly had done wrong. It simply said I was negligent.

    The suit introduced me to the strange and confusing world of torts. When a person does something careless and hurts another or damages their property, lawyers call it a tort. When the injured person sues the negligent person, lawyers call that suit a tort claim.

    Until that suit, I thought a tort was something for big corporations, doctors and hospitals to worry about. But now I see that anyone - anyone who drives or owns property, at least - can be hit with a tort claim.

    Six out of every 10 tort claims involve vehicles, and they seldom attract much public attention.

    The McDonalds suit, in which a jury in 1994 awarded $2.9 million to a woman who spilled hot coffee on her lap, became notorious. To many, it symbolized everything people think is wrong with the civil court: frivolous suits, too much litigation, runaway juries that award millions of dollars.

    Such perceptions usually oversimplify the problems - tort claims are actually declining and few suits, once investigated, turn out to be frivolous.

    Nevertheless, it's the perceptions that stir Congress and state legislatures to push for tort changes, such as capping the amount of money that a jury can make someone pay as punishment for their negligence.

    Businesses want to do away with a law that frequently forces them to pay 100 percent of the damages even though they were only marginally involved in the act. Because of that law, people frequently get thrown into suits merely because they have the deepest pockets, not because they were mostly at fault.

    In our case, my pockets may not have been deep, but my insurance company's were. My lawyers said that's why we were sued.

    But the solace of having a big insurance company on our side evaporated when we realized that its deep pockets only contained $25,000, which was the limit of our insurance coverage. Such a paltry amount was not enough to interest it in a costly court battle merely to show that we were not negligent.

    Our personal lawyer worried that the insurance company - by rejecting the family's demand for our insurance coverage - was needlessly exposing us to the whims of a jury that could be easily swayed by pity.

    So for 1 1/2 years, we labored under a nagging conflict: the desire to fight for total vindication and the risk of financial ruin for the present and future.

    The ordeal started Dec. 29, 1991, at an intersection on State Route 46, where the speed limit was 55 mph. The drunken driver said she never saw the motorcyclist coming when she pulled out in front of him from a side road.

    I was at least 30 seconds behind the motorcycle, too far to see that it had happened.

    At first, all I saw was a dark speck on the distant edge of my car's headlights as I drove around a slight bend in the road. It was partially in my lane, and I remember thinking it was a log or piece of tire rubber.

    There were no flashing lights, piles of wreckage, crowds of people or any other sign of the tragedy that lay ahead. What followed was a blur of events.

    As soon as I saw the speck in the road, I began moving to the left to steer clear of it.

    I had just completed the movement when the speck turned into the crumpled wreck of a black and dark-blue motorcycle. Almost at that very moment, its rider appeared on the pavement a few feet farther down the road.

    I was heading straight at him at 55 mph or less.

    I fought the impulse to cut either way for fear of crushing him with the wheels of my car. There was nothing to do but grip the steering wheel and pray that he would slip harmlessly underneath.

    Cheryl, who was slumped in the back seat, did not see the disaster unfolding. All she heard was a voice filled with horror.

    "Oh my God!" I yelled as I watched him go under our car.

    The thudding sound of the body hitting the underside of the car told us that the worst had happened. Cheryl glanced out the rear window and saw something fly from underneath the car.

    Thinking I had hit a pedestrian, she fell into hysterics. Richard valiantly tried to calm her as I stopped on the side of the road and backed up. Running toward the body, I saw the driver of the other car standing in the road. Her hands cupped her cheeks, and she was screaming.

    "I didn't see him, I didn't see him! He came from nowhere!"

    I heard a man who was kneeling over him yell for a blanket. So I ran back to the car to get ours. Then someone said he was dead.

    Sometime after midnight, a state trooper interviewed me and explained what had happened. But he didn't know which car killed him.

    "We'll probably never know," he said.

    A medical examiner later said the first crash probably killed him, but he couldn't be sure.

    The next day, I felt different; everything around me seemed different. It was like I was a stranger to myself.

    Every emergency officer who had talked to us at the scene had said there was nothing we could have done. Yet, the fact that I had run over a human being who may have been alive, that I may have killed him, nagged at me. I didn't know his name or anything about him, like whether he had a wife or child or girlfriend. I was afraid of learning that information.

    Cheryl was going through the same fears and same eerie feeling that we had changed, that our lives would never be the same. And if we had these strange feelings, what was Richard going through? How had he been affected by the tragedy, the spectacle of his parents being so helpless, the unexpectedness of it all.

    We were confused, in shock and deeply worried about him. For the next week, we sort of shut ourselves in and everybody else out.

    Early in the week, Cheryl wanted to find the family of the motorcyclist, maybe go to the funeral. I still wasn't ready to deal with that.

    That week, Cheryl got a call from an insurance representative for his family that put her in tears. The woman said the family was mad because no one had expressed condolences. She warned that we could be held liable in the man's death.

    That shook us out of our isolation.

    For the first time, we called our insurance company. The claims representative launched her own investigation. Afterward, she told us not to worry, that the highway patrol had concluded we were fault-free, that they were going to charge the woman with DUI-manslaughter.

    She also said that because we were not at-fault her company would steadfastly refuse to pay any claims that the family of the motorcyclist might file.

    Seven months later, the family's lawyer filed a claim demanding the $25,000 in insurance coverage and threatening to sue us for every penny we had if the insurance company did not give in. A year later, he carried out his threat.

    "How can they do that? Why are they blaming us and not the woman who hit him? Could they really ruin us for something totally beyond our control?"

    We must have asked those questions a thousand times during the next year.

    Two years of letters, legal notices, postponements, depositions, and the back-and-forth between opposing lawyers did not provide many answers. But they were taking their toll on us.

    Every letter we got threw Cheryl into depression, and she often carried this anguish to work.

    "I can always tell when you get one of those letters," one of her co-workers commented one day.

    The letters were nasty. They warned that we could be left holding the bag if a jury awarded his clients a multimillion dollar settlement. The lawyer's favorite ploy was to describe the crushed helmet and to note that it would surely persuade a jury that my car killed the motorcycle rider. To top it off, he cited cases where juries gave mega awards.

    The long months of anxiety created by those letters revealed things about ourselves that we wished could have remained hidden.

    Cheryl and I have been married for 22 years, and I thought I knew every emotion that lay buried in her, including the worst of her wrath. But one afternoon, she left a message on my phonemail. All that registered with me was the first sentence: "We got another letter today." The rest was a long, incoherent, venemous stream of rambling. This time, there were no tears, just total, unabashed rage, the depths of which I had never witnessed in her.

    New emotions arose from Richard, also. Until we stopped him, Richard was opening letters from the lawyers and reading them. One day, he read one and knocked a mirror off the wall in anger.

    Keeping the mail from him didn't help. Not knowing what bad news lurked in a sealed envelope worried him as much as knowing the truth. There was no way to shelter him. He had been subpoenaed twice and interrogated by three sets of lawyers.

    Many times, he talked of how he wanted to confront the father of the motorcyclist and demand that he explain their actions.

    Richard had no patience for the seemingly useless legal procedures. Why, he wanted to know, can't all of us just go tell the judge what happened and then it would be over.

    All this created in him a disturbing cynicism for the judicial system that was far too sharp for most children his age.

    As for me, I began to see that our innocence was not important. Neither were the details of the accident. Only three facts mattered:

    We were in the wrong place at the wrong time.

    We had assets, and the guilty person had almost nothing.

    We - not our insurance company - stood to lose hundreds of thousands of dollars in legal fees and damages. The family had almost nothing to lose.

    My compassion for a family torn by grief had dissipated. By then, I felt like we were victims of their greed. I wanted to fight, and I wanted total victory.

    But when reality set in, I realized our day in court would never arrive.

    The case was close to 3 years old, and the insurance company's costs were mounting. For it, paying the amount of our coverage would make more economic sense than paying the expense of a trial.

    Our own costs also would mount because our personal lawyer soon would devote more time to our case.

    The time for a major decision was near, and the tort laws gave us few options. If the family's lawyer could persuade a jury that I had made any mistake at all in dealing with the emergency, the financial consequences could be devastating.

    I would have to pay the entire amount of damages that the jury would award to the family for their son's projected lifetime earnings plus all funeral and medical bills. If the jury decided the family deserved compensation for their pain and suffering, I would have to pay a share of that. The drunken driver would pay nothing. And the insurance company would pay nothing over the amount of liability coverage.

    In tort law, attorneys who represent people who file suits have a weapon that's dear to them. They call it "the doctrine of joint and several liability."

    When someone gets hurt through no fault of their own and files suit, the jury has to decide who is to blame. If two people are at fault and the jury decides that one of them is, say, only 10 percent at fault, then that person would have to pay 10 percent of the damages. The second person would have to pay the remaining 90 percent.

    But, if the person who bears the larger responsibility for the injury is broke, the 10 percent defendant has to foot the entire bill.

    That doctrine prompts lawyers to target the "deep-pocket" defendants even if they are peripherally involved.

    Tort reformists have been chipping away at that doctrine in recent years. In Florida, the Legislature whacked off the biggest chip in 1986. It passed a law that said the hypothetical 10 percent defendant could be held totally responsible only for "economic damages" such as medical bills and future lost wages. If the jury awarded damages for "pain and suffering," he would be responsible only for his 10 percent share.

    In 1993, the doctrine of joint and several liability took another hit, this time from the Florida Supreme Court. It ruled that in dividing up responsibility for an act of negligence, the jury did not have to confine itself to the people listed as defendants in the suit.

    The Florida Academy of Trial Lawyers, whose members represent plaintiffs, plan to lobby for a new law next year that would upset the court ruling.

    The ruling would have been good for me if my suit had gone to trial because the family lawyer did not list the primary culprit in the accident as a defendant. So if the jury decided to compensate the family for pain and suffering, I would not have had to pay the drunken-driver's share.

    But I would still have to pay her share of any economic damages. That, along with the mounting legal costs and the emotional toll, is why the case never went to trial.

    It finally ended with two days of rapid-fire offers, counteroffers, threats and counter threats. The results - the insurance company agreed to pay what the family first demanded nearly three years and much turmoil ago - the $25,000 insurance coverage.

    The settlement contained a statement saying the agreement doesn't mean we admit to any negligence and that we continue to deny any responsibility.

    The family who sued us did not get much money out of the suit, but we didn't win it either. The points of dispute were never listed. Findings of fact were never made. Yet, officially, the case was closed in August 1994.

    We were glad it was over. But despair and anger that sometimes turned to bitterness marred nearly three years of our lives.

    And nothing was resolved.