October 2024

By LAJ President Brian D. Katz
Herman, Katz, Gisleson & Cain

“The more things change, the more they stay the same.” This was first written in the 19th century by French novelist Jean-Baptiste Karr. More recently, Bon Jovi released a song titled “The More Things Change.” I tend to be drawn more to Bon Jovi than a French novelist from the 19th century because I don’t speak or understand French …  

Seriously, Bon Jovi’s song goes on to state, “It’s the same damn song with a different melody.” Well, the same damn song is tort reform, and the powers that be are at it again.

The Louisiana commissioner of insurance must be a Jean-Baptiste Karr or Bon Jovi fan, as he embarks on pushing for more tort reform under the usual guise of attempting to solve the insurance crisis for citizens. Committees of the Louisiana House and Senate are holding hearings monthly to allow certain constituencies to present evidence, testimony, and commentary on what is believed to be the cause of the insurance premium problem.  

Hearings were already held on August 7 and September 6. Two more hearings are scheduled for October 11 and November 8. The goal of these hearings is to develop a plan to create legislation that will be offered in the 2025 legislative session to reduce the cost of automobile and property insurance premiums. We are following these hearings closely and providing testimony as well. 

Based on conversations we are having with key legislators, we believe that any plan created will include changes to laws that affect Louisiana citizens’ rights if they are injured or sustain property damage from a storm or an automobile accident. This, despite the fact that since 1975 when tort reform in Louisiana started with the cap on medical malpractice damages, there has been no sustained period of time when automobile or property insurance premiums were reduced. 

The American Tort Reform Association claims Louisiana has passed 40 major “tort reform” measures since 1987;1 by our count it is at least 90 since 1975. These range from the repeal of laws like providing for punitive damages and solidary obligors to outright immunities for wrongdoers. 

The legislative sessions of 2020 and 2024 are the most recent and the most comprehensive examples. During both sessions, the Louisiana Legislature passed sweeping tort reform measures with the stated goal of reducing the cost of insurance. In 2020, proponents guaranteed reductions. 2020 was also the year when driving reduced by 75 percent due to the pandemic, and even then, premiums rose by 25 percent instead of being reduced. 

In 2020, it was the jury trial threshold reduction, the direct-action statute, the collateral source doctrine, and seat belt use. In 2024, it was more changes to the direct-action statute that undid 100 years of established law and another attempt at further revising the collateral source rule. Immunities and a change to the uninsured motorist statutes also passed. Hundreds more proposed changes were dropped either prior to committee, never made it to committee, or failed at some point in the process.

Despite years of tort reform, insurance premiums have not been reduced. This year the pitch was a little different: “This could reduce premiums at some point in the future.” Both the president and general counsel of the American Tort Reform Association stated that tort reform will not reduce insurance rates.2 Sherman Joyce, its president, said, “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.”3 

Victor Schwartz, the former general counsel, stated, “[M]any tort reform advocates do not contend that restricting litigation will lower insurance rates, and ‘I’ve never said that in 30 years.”4  

In spite of these statements and our own Louisiana evidence, tort reform proponents will continue to sing the same damn song with a different melody in 2025. This is where you come in.  

First, we cannot be successful without an active and engaged membership. We need you engaged with your legislators both in educating them about the effects of legislation and contributing to them financially. You can do that through a whole host of ways, including participating in our regional committees and Auto Torts and Insurance Law sections.  

Second, we need to grow our membership to include all trial lawyers whose clients benefit from the work of our association. We will be actively trying to engage new members throughout the year. Please consider sponsoring all of the lawyers in your firm to become members and encourage your friends who are not members to join. 

Third, we have the greatest trial lawyer association staff in the country led by the best executive director. Our staff works tirelessly on our behalf, but they cannot do it alone. The resources of these huge corporations and insurance companies on the other side can only be matched with our unified effort. Please answer our calls, volunteer, offer to help, and participate in everything we have to offer.  

In my first president’s column, I was hoping to start my term with a nice story about why I became a trial lawyer and why I am so passionate about the work we do. Unfortunately, we do not have that luxury.  

Fighting proposed “tort-reform” legislation has become a year-round activity, and our association is the last line of defense for everyday Louisianans who have been who have no idea that their rights are being taken from them until they, their family, or their small business is damaged by someone else’s actions.  

We cannot rest and must keep vigilant. I am looking forward to a successful year and working with each and every member.

Endnotes

  1. //www.atra.org/state/louisiana/.
  2. “Study Finds No Link Between Tort Reforms and Insurance Rates,” Liability Week, July 19, 1999; and “Tort Reforms Don’t Cut Liability Rates, Study Says,” Business Insurance, July 19, 1999.
  3. “Study Finds No Link Between Tort Reforms and Insurance Rates,” Liability Week, July 19, 1999.
  4. “Tort Reforms Don’t Cut Liability Rates, Study Says,” Business Insurance, July 19, 1999.

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