Bill offers new way to award damages Lobbying fight waged over measure to ease burden on plaintiffs

February 18, 1996|By Mark Hyman | Mark Hyman,SUN STAFF

It's an obscure bill to many, but one that has the attention of two of the most potent lobbying machines in Annapolis.

On one side is an alliance of Maryland's most powerful business interests, insurance companies and many of the region's largest corporations, including Black & Decker Corp., Bell Atlantic Corp. and Baltimore Gas and Electric Co.

On the other is the Maryland Trial Lawyers Association, whose members bring the lawsuits and negotiate the settlements for plaintiffs claiming injuries in everything from car crashes to medical malpractice cases.

At issue: Whether Maryland should scrap its strict standard for awarding damages in favor of one that is more plaintiff-friendly.

Proponents of the laxer standard say it is fairer and point to the 46 states that have already switched. Opponents warn it would flood the courts with lawsuits, raise insurance costs and further undercut Maryland's already much maligned business climate.

The two special interests and their supporters have been arguing the merits of the vastly different standards for more than a decade, sometimes before the Maryland General Assembly, which rejected a move to the so-called comparative negligence several times in the 1980s.

Now, its supporters are trying again, with a bill introduced this month in the General Assembly.

"The substance of the bill is fairness and logic," said Daniel M. Clements, immediate past president of the Trial Lawyers Association.

Paul Tiburzi, lobbyist for Maryland Tort Reform Coalition, whose members include large companies that oppose the bill, takes a dimmer view.

"The most compelling argument of the groups supporting this bill is: 'Everybody else is doing it, why shouldn't we?' We say Maryland ought to decide what's right for Maryland," said Mr. Tiburzi.

Those who want it replaced say Maryland's long-held contributory negligence rule is unduly harsh on plaintiffs.

Under a contributory system -- a standard also used in Virginia, North Carolina, Alabama and the District of Columbia -- people who file lawsuits cannot recover damages if they were even partially responsible for their injuries.

By contrast, in states that have adopted comparative negligence, juries are instructed to parcel out fault among all parties, including the plaintiff and multiple defendants. The plaintiff's award then is reduced by the percentage of his responsibility for injuries.

There is one point about which both sides in the debate seemingly can agree: The comparative-fault system has been steadily gaining acceptance.

"On the subject of which is a better idea -- contributory or comparative -- the decision has been made in favor of comparative negligence by virtually every jurisdiction in the common-law world," said Oscar S. Gray, a law professor at the University of Maryland and author of two books on tort law.

Among states with a comparative-negligence system, there are at least three different formulas, including the "50-percent rule" being proposed for Maryland.

That rule bars plaintiffs from recovering damages when juries find them more than 50 percent at fault, a provision supporters of the bill sponsored by Del. Gilbert Genn, D-Montgomery, say strikes a balance between the rights of litigants.

Most other states use either a 49-percent formula or the standard most favorable to plaintiffs -- "pure comparative," which allows those who bring lawsuits to collect damages, reduced by their percentage of negligence, even when juries find they are mostly at fault. Courts, not legislatures, have created the law in most of the 12 states using pure comparative.

Mr. Tiburzi and other bill opponents say comparative negligence is unneeded, unwanted and would be a drag on Maryland's economy. A change in the law, they predict, would result in a surge in tort litigation and increased insurance costs.

They also point out that several of Maryland's neighboring states use the contributory-fault system, a point that could work against the state in recruiting and keeping businesses.

"Contributory negligence has been an important defense for businesses and other defendants for 150 years, since its adoption by the Maryland courts," Mr. Tiburzi said.

Mr. Tiburzi cited a study of insurance costs in Delaware that he said substantiated concerns about higher costs, and other negative fallout that might result from changing to a system of comparative negligence.

But Mr. Clements dismissed the findings as flawed and having little relevance to circumstances in Maryland.

"Opponents of the bill love to drag out the 'Bad for Business' mantra, but there's never any supporting evidence," he said.

"The state with the highest growth in business last year was Ohio, a comparative-fault state. The second highest was Nevada, a comparative-fault state. There's no credibility."

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