January 2025

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

Another horrible, shocking murder. 

This one was linked to three words: “deny,” “defend,” and “depose.” They were written on the ammunition a masked gunman used to kill UnitedHealthcare CEO Brian Thompson, according to law enforcement officials. While not identical, those words seem to refer to the “three Ds” of insurance coined by Rutgers Law Professor Jay M. Feinman in his book Delay, Deny, Defend: Why Insurance Companies Don’t Pay Claims and What You Can Do About It.  

Before I go any further, I want to be very clear: Murder and all violence are unacceptable. It makes one wonder why a brilliant young man with seemingly everything to live for would turn to violence as his form of expression?

Should we worry that this is just a harbinger, considering that Corporate America and big insurance push for more and more protections from federal and state accountability each year? They seek to remove remedies for those suffering legitimate claims, leaving them with little recourse through the civil justice system.  

How will citizens react when government grants these corporate and insurance wish lists and a strong civil justice system can no longer protect them?

As attorneys, we see and understand how pain can change a person and how that pain affects the people who love them. It is our responsibility to make others understand this, even when the injury cannot be seen with their own eyes. 

In the case of this horrific killing, it is reported that pain drove a young man to make a statement through the most unacceptable forum: violence. It is still too early to determine the exact “why,” but we do know that he suffered chronic pain and his target was an insurance company executive.  

After enduring a barrage of hurricanes and insurance industry delays and denials, many Louisianans were unable to receive just compensation to rebuild their homes or businesses. Thousands found it necessary to turn to the civil justice system to receive what they paid for — legitimate and fair compensation for their losses. 

In response, the insurance industry, which clearly acted in bad faith, got laws enacted that will make it more difficult for policyholders to prove bad faith. When the next hurricane wreaks havoc, there will be fewer remedies available, the process for recourse will be longer, and the standard of proof will be more difficult to meet.

What follows is hypothetical, but these thoughts came to mind as I sat in hours of legislative hearings focused on limiting citizens’ rights rather than on correcting insurance companies’ bad practices and behavior. While this is fictional, I can unfortunately now foresee a world in which the civil justice system is so limited that there are feelings of hopelessness and there is no chance of fair compensation. 

Additionally, we are eliminating any incentive for those responsible for supervising bad actors to keep our citizens safe. When no one is accountable, no one is safe.

Jane Doe is driving her Chevrolet Tahoe down U.S. 190 heading west near Krotz Springs. She is on her way home to Alexandria and decides to pull over for some treats at Billy’s to bring home to her husband of 12 years, John, and her three children under the age of 10.  

She buys the treats, pulls back out of Billy’s, and takes a right back onto 190 West. She gets into the left lane after bringing her car up to the speed limit.  

Unbeknownst to her, an impaired 18-wheeler driver who is pulling a 60,000-pound load of timber east gets a text. He decides to read it and then begins to type his response. The impaired driver, who has failed multiple drug tests and is distracted by his texting, veers into oncoming traffic, hitting Jane Doe head-on.  

She is significantly injured in the collision and survives for several months before succumbing to her injuries. Her husband and children spend every waking hour in the hospital with her until her death.   

XYX Trucking Company, which hired the driver, ignored his history of drug abuse, failed to test him, and allowed him on the road after multiple felony pleas. The company allowed him back on the road even after its safety manager warned that he was a danger and should not be driving.

What if lawmakers decide to propose and pass bills (as they did in 2022 and 2023) that prevent a jury from hearing evidence of a company’s negligent hiring and supervision of its drivers? Or if they decide that not only should the devastated family’s recovery be reduced by the amount that their health insurance paid for Jane’s care, but also that the Doe family shouldn’t be reimbursed for the 10 years of health insurance premiums that they paid? Therefore, the wrongdoer gets the benefit of the insurance paid for by the person harmed. 

What if they propose legislation that puts an arbitrary cap on the value on life or the quality of life?  

All of these measures benefit the wrongdoer and punish the person who was severely damaged by them. Unlike 41 other states, we have no general punitive damages to punish wrongdoers and hopefully prevent unsafe behavior. We have long abandoned a discussion of what tort law, and especially punitive damages, are designed to do — deter future bad behavior and reduce future risk.  

A civil justice system that holds the wrongdoer accountable is the last line of defense for an injured person’s right to be made whole. We cannot allow the system to be rigged in favor of negligent corporations and insurance companies and against the injured and their families.

We must do whatever we can to prevent an erosion of the civil justice system. Aggrieved people should not feel like vigilantism and violence are the only hope.

Participation in the legislative process is key, and I encourage all of our members to become involved.

LAJ/Louisiana Judicial College seminar on March 14

One of the best events LAJ helps to organize is its joint CLE with the Louisiana Judicial College. This year’s topics will include the use of technology, changes in the direct action statute, other legislative updates, and ethics and professionalism. There will also be some special guests there.

This educational program runs concurrently with our Annual Convention, and we will hold our annual LAJ Grand Reception that Friday evening.

It should be a great program and a chance to enjoy each other outside of the courtroom. I look forward to seeing you there.

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