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Cap on Damages - A Bad Idea

  • On numerous occasions, I have expressed my disappointment with Pennsylvania's continued legislative gridlock. I have also written about the inability of the legislature to address meaningful insurance reform. A glaring example is its failure to increase minimum automobile insurance coverage limits for nearly 50 years, despite the request of legal scholars, consumer groups, tax payer groups and even insurance executives.
  • When the legislature did break out, only briefly, from the existing gridlock, it passed the "Fair Share Act" which is patently unfair changing 200 years of existing common law and over the objections of nearly every legal scholar.
  • The issue of insurance coverage has again moved to the forefront of the discussions in many circles. The case which raised the issue involves a child, Ashley Zauflik, who sustained severe and permanent injuries, including a crushed pelvis and the amputation of the left leg above the knee, when a school bus owned and operated by an employee of Pennsbury School District accelerated out of control onto a sidewalk striking 20 students. Pennsbury School District, through its insurance company, admitted that it was responsible for the severe and permanent injuries young Ashley sustained.
  • Ashley's case was presented to a jury on the issue of damages only and the jury awarded in excess of $14 million. The School District had $11 million in insurance coverage and is likely that sum would have been acceptable to Ashley and her family. Unfortunately, the District appealed the verdict invoking the damage cap of $500,000.00, a cap available to public schools. The Supreme Court forced to follow the legislature found in favor of the School District, in effect leaving Ashley with a $500,000 award. The capped sum awarded is woefully inadequate as her past and future medical expenses are estimated at nearly $3 million.
  • In his well-written concurring opinion, Supreme Court Justice Max Baer called upon Pennsylvania's legislature to increase the statutory damage cap. Justice Baer wrote "it is obvious that money in 2014 does not spend as it did 1978" (the year the damage cap was adopted). Notably, that year the Governor of Pennsylvania earned somewhere around $70,000. Today his salary exceeds $180,000. In 1978, a member of the general assembly which passed the cap under scrutiny herein earned $25,000 a year. Today a legislator earns approximately $84,000.
  • "I hope the legislature renders this analysis and any future litigation moot. I would like to think that the failure to raise the cap has been inadvertent on its part." Unfortunately, I suspect that Justice Baer's reference to inadvertent on the part of the legislature may be wishful thinking. In recent times, the Legislature has not demonstrated a willingness to look deeply into insurance and similar issues and consider legislation that benefits the consumer and tax payer alike and not necessarily big insurance.
  • Although perplexed, I would again ask everyone to call your legislature and senator and ask that they address the "cap" as Justice Baer urges, at least to keep consistent with inflation and while they're at it, at the very least, increase the Pennsylvania motor vehicle insurance coverage minimum to $30,000/$60,000.

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Davis & Davis Attorneys at Law

Davis & Davis Attorneys At Law