DO CAPS ON DAMAGES PROMOTE LITIGATION AND MAKE ROADS UNSAFE?

I asked myself this question after
resolving a case halfway through a trial in Madison, Wisconsin. 

            I
represented the widow of a 66 year-old salesman who was killed when the rear
wheels of a semi truck’s trailer ran him over and crushed his skull.  The salesman was one week away from
retirement. He was at the scene to visit with a customer at a construction site
in Gale Township, Wisconsin.  The
customer, the foreman of a road repaving crew, asked the salesman to take over
flagging duties at the construction site so the foreman could check on some
equipment.  Shortly thereafter the
salesman was run over.

            The
driver of the truck that ran over the salesman and the foreman speculated that
the salesman must have walked into the truck’s trailer.  In essence, they said the accident was the
salesman’s fault.  They even suggested
that the salesman was suicidal and purposely killed himself.  The salesman’s family knew better.  They knew that the hard-working patriarch of
the family was not suicidal and thought the notion that he purposely killed
himself a week before retirement was preposterous.

            A
lawsuit was filed against the trucking company and the construction
company.  The salesman was not trained to
be a flagger and was not provided with a reflective vest to help make him
visible to motorists.  The trucker, a
professional driver with a commercial driver’s license, should not have run
over a pedestrian. 

            Written
discovery responses filed by the defendants revealed that there were many
people at the scene.  However, the
defendants claimed that the only witness was the construction foreman.  The story that both the truck driver and the
foreman gave was that the truck driver stopped at the intersection, talked to
the salesman and that the truck driver pulled away very, very slowly until he
felt the rear wheels of his trailer go up and down. 

            I
took the depositions of everyone who was at the scene, just in case they saw
something.  Incredibly, a member of the
construction crew, who was not identified as a witness in discovery, testified
that he saw the whole thing happen.  He
testified that the driver never stopped at the stop sign, the trucker was
driving like a “crazy ********”, the driver never checked his mirrors and was
driving recklessly.

            Case
closed, right?  Wrong.  In Wisconsin, there is a cap on non-economic
damages, such as loss of companionship, in wrongful death cases.  The cap is currently $350,000.00 for
adults.  Not included in the cap are
economic damages such as medical bills and lost wages.  In this case, the salesman was killed
instantly, thus no medical bills.  He was
a week away from retirement, thus minimal lost wages.  In short, the settlement value for the case
under Wisconsin law was not much in excess of the cap on non-economic
damages.   

            By
now you may be thinking that the defendants voluntarily agreed to pay the relatively
small caps that were available for the death of a husband and father once the
testimony of the witness came to light. 
Unfortunately, the exact opposite happened.   The defendants hired an accident
reconstructionist and continued to insist that the salesman was at fault for
getting run over.  It should be noted
that punitive damages are not allowable in Wisconsin in wrongful death
cases.

            Incredibly,
the story gets even worse.  The trucker
who claimed he stopped at the stop sign was hired by the Wisconsin trucking
company despite the fact that he had a criminal record and a bad driving
history.  The trucking company continued
to retain him as a driver despite the fact that he racked up moving violations
while he was an employee.  The trucker’s
driving/criminal history includes:

?        
A
conviction for driving under the influence of alcohol

?        
Driving
a vehicle with a suspended license

?        
Driving
without a valid driver’s license

?        
Another
citation for driving with a suspended license

?        
Four
separate speeding tickets while operating a commercial vehicle

?        
Conviction
for delivery of marijuana

?        
Conviction
for destruction of property

?        
Conviction
for disorderly conduct

In spite of all of the
above, the trucking company did not settle until halfway through a
time-intensive, emotionally grueling and expensive trial.  Why not? 
My hypothesis is that the defendants had nothing to lose.  The defendants were emboldened by the fact
that even if the jury awarded substantial damages, the federal judge was
required by law to lower the verdict to the statutory caps.  The existence of the caps may also explain
why the Wisconsin company hired and continued to retain a commercial driver
with a documented history of unsafe driving. 

I suspect that an
Illinois company would not have hired this trucker.  I suspect that the case would not have gone
to trial had the tragic collision occurred in Illinois.  My guess is that if an insurance company is
confronted with the exposure of what an Illinois jury may award under
these circumstances, it would not be so emboldened to let the trial play out to
just to see how it was going.   Why?  Thankfully, unlike Wisconsin, there are no
caps for wrongful death cases in Illinois.

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