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Insurance Information, Please

March 2, 2012
Shepherdstown Chronicle

On Feb. 26, the House of Delegates passed a bill allowing injured parties to inquire about how much insurance coverage a person who has possibly inflicted a tort has.

The bill engendered much more debate than I thought necessary. I see it as a simple change to our tort laws that will actually keep a few lawsuits from reaching the courts.

The insurance industry and the West Virginia Chamber of Commerce, however, saw it quite differently. They claim it's going to increase lawsuits. I don't see how.

Under current law you are not allowed to know how much insurance a person has, or even if the person has insurance. This is so juries will not know that information. The logic behind this is that if jurors know how much insurance a defendant has in a lawsuit, there might be a tendency to award the defendant a sum very close to the amount of coverage the defendant has. The presumption in West Virginia courts (and the courts of many other states) is that if the jury does not know the amount and extent of insurance coverage, they will make a decision strictly on the facts of the case. While I'm sure that doesn't happen every time I think juries get it close to right for the most part.

The bill in question will not change that. What it will do, if enacted (it must still pass the Senate), is give a potential plaintiff some idea whether or not taking a tort case to court is worthwhile. If the case goes to court the information would still not be admissible at trial.

So why did the insurance lobby and the State Chamber make such a big deal about this? And why did they wait until the bill was on the last of three readings before the full House of Delegates to raise so much Cain? Why did they not come before the Judiciary Committee when it debated the bill for quite some time? Several Republicans and several Democrats considered "pro-business" on that committee spoke for and voted for the bill.

I don't know for sure, but I'm going to guess. Much of what happens in a legislative session happens because of emotion, not thought. Some years ago, West Virginia made two significant changes in its tort laws to bring them closer in function to those of our surrounding states.

About eight years ago we passed a medical malpractice reform law because we were losing doctors at an alarming rate. Many doctors told us, I think with justification, that our "medmal" laws were too "anti-doctor." As a result medical malpractice insurance was much higher than in any of our surrounding states. The change we made has resulted in medical malpractice laws that are similar in effect to most of our surrounding states and we've stemmed the loss of doctors.

Two years later we passed some insurance reforms that I think were also needed. Many insurance companies had stopped writing coverage in our state because they thought the legal climate punitive to them. The changes we made have increased the number of insurers.

I don't think either of these bills put West Virginia in the company of a few states (Texas comes to mind) that do whatever the insurance industry wants. I think they put us in the mainstream of the country, which is where I think we should be.

Well, the State Chamber of Commerce and the insurance industry have been ever vigilant that the Legislature might attempt to "roll back" some of these reforms. I suspect they saw this bill on the floor of the House and panicked. Indeed, they made all sorts of accusations that have no basis in fact.

Thus does sausage get made in the Great Sausage Factory (the one with the gold dome) on the muddy banks of the Great Kanawha.



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