Vested Interest - March 2002 Issue

The President’s Thoughts

Several years ago I rented a car while vacationing on a Caribbean island. When I rented the car I was asked the usual questions about insurance from the rental agency and remembered I had recently upgraded my card to a level where I was told my insurance would cover all rental cars. I also remembered this was true both in the United States and in the Caribbean.

Well, as bad luck would have it, while this rental car was parked in the parking lot of our resort, some unknown person sideswiped it and caused a fair amount of damage to the fender. As with all auto accidents, the inconvenience of the event started to mount immediately. The car had to be returned to the rental agency, estimates had to be made, police reports had to be filed, the amount of damage had to be charged to my credit card, and I had to convince them to rent me another car. This also had to be done in a country where English was not the first language.

When I got back to the United States, I filed a claim with my credit card company. I included every piece of information I had including estimates, police reports, and a pretty extensive narrative of this un-witnessed event. And as insurance companies always do, I was asked for more information. And I provided it. And they asked for more information. And I provided that, too. And when they finally asked me for information nobody could possibly provide, I reminded them that they did business in my county and even though it was a minimal amount of money they, had now angered me to the point that I would sue them just for fun. They deducted the amount from my credit card. I am sure I spent more in time than the claim was worth. I am also sure most people in this situation would simply pay off the credit card, and the credit card company would simply make more money.

Large corporations can make vast amounts of money by winning thousands of small victories. The average individual has no viable recourse against this because of the prohibitive cost of litigation. No lawyer in his right mind is making a living filing cases for individuals who have minor injuries or money damages. There may be a public misperception that lawyers will sue for anything, but those of us who sue people for a living know that in the absence of substantial damage, the cost of the litigation is prohibitive. Hence, the birth of the class action law suit.

There have been a number of famous class action injury lawsuits; breast implants, asbestos, and tobacco, to name a few. But, there is also a myriad of consumer lawsuits that are classic big guy vs. little guy battles over relatively small amounts of money no individual (except perhaps an angry lawyer) could possibly afford to fight and win. Individuals being charged late fees on cable bills where it was never authorized, hidden charges in sales contracts, and miss-marked hard drives in computers are a few examples of cases where the individual would have never been able to afford to hire legal counsel to prosecute the claim. But these cases have been filed and they have been won because class action lawsuits have afforded a remedy. The public has been served and the corporation guilty of the behavior and hopefully, others like it, has been a bit more reticent to engage in the same behavior.

Unfortunately, class action remedies have not been able to deal with substandard insurance companies and their refusal to pay claims on cases with obvious liability or the Wal-Mart’s of the world who treat liability claims in the same manner. At the last roundtable I attended in Champaign this issue came up, and the question was posed as to how long the present minimums on car insurance have existed. I have not researched this issue for this article, but it seems to me the Dram Shop limits have been increased at least 4 or 5 times since car insurance limits were raised. How do most people cause damage and injury when they are drunk? Given the ferocity of the fight by MADD (Mothers Against Drunk Drivers) in Springfield to lower intoxication limits and increase criminal penalties, one would think they would show a little more concern for compensating the victims. The present limits do not compensate even the most insignificant injuries, and he or she will never be able to pay them while sitting in jail. There needs to be a substantial legislative push to raise limits. Victims deserve to be compensated.

On an internal note, we will be seeking nominations for the Leonard Ring award in the next few weeks. For those of you who would like to nominate someone for this very prestigious award, a letter needs to be sent to the attention of Jim Collins at the ITLA office prior to April 1, 2002. Please include the name of the individual along with a summary of their efforts in support of victims' rights.

And now it’s time to mention a group of individuals led by Bruce Pfaff, who are the unsung heroes of the organization. The Amicus Committee had two huge wins in late January. The Supreme Court came out on the right side of Bishop v. Burgard and Hansen v. Baxter Healthcare. Stanley Tucker, an amicus stalwart for many years, wrote an excellent brief in Bishop explaining why ERISA does not mean the Fund Doctrine should not apply. This decision will save many of our clients one-third of their liens.

In Hansen, James Paul Costello wrote an outstanding brief. It was a superb dissertation on Illinois products law. John Erb did a superb job of trying the Hansen case, and the appeal followed in a similar fashion.

These briefs can be purchased from the ITLA brief bank for $10.

We stand together for the rights of victims.

Kim E. Presbrey, President
Illinois Trial Lawyers Association