The Texas Trucking Association is pushing for the state legislature to make several changes in the state’s approach to vehicle lawsuits in its biennial legislative session.
It won’t take long to review the list of what they’re seeking; it’s fairly short. The initiative is also viewed as a first step in tort reform that may go on over several legislative sessions. With the every-other-year schedule of that legislature, what doesn’t get done this year would need to wait for two more years to either be attempted again or to be built on further if there are accomplishments this year.
John Esparza, the president of the Texas Trucking Association, told FreightWaves that a similar attempt at tort reform to benefit the trucking industry came up short two years ago. This year’s effort isn’t open-ended; the session is scheduled to wrap up at the end of May.
There was some success on a TTA effort that impacted what Esparza called “medical affidavits.” “But we saw that the problems were so much bigger and broader,” he added.
To help this year’s initiative, the TTA has partnered with Texans for Lawsuit Reform, which has pursued changes in tort law for many years.
One of the key pieces of legislation is Senate Bill 207, which has companion legislation in the House, HB 1617. SB 207 is focused on a key TTA push to more closely define medical costs against a benchmark of what might be expected to be charged for a procedure, rather than what might show up on a doctor’s or hospital’s bill.
“Recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant” is the wording in the legislation.
“Currently the challenge we have is that if a person has insurance, the lawyers figured out if you tell your clients not to file for insurance, you are able to inflate those charges, so they are three, four, 10 times greater than you might otherwise expect,” Esparza said.
He said there is “a lot of gamesmanship” in setting those charges in litigation. “What we are seeking is transparency,” Esparza added.
House bill 19 deals with the admissibility of evidence that covers everything from a driver’s past performance or violations to the admissibility of dashboard camera video.
“It’s never been about shirking from responsibility,” Esparza said. “It’s about ensuring the jury knows all the facts.”
Esparza cited the low number on HB 19, which is assigned by the legislature’s leadership, as a sign that it has been viewed as a priority. The first hearing on HB 19 occurred this week, according to press reports.
Wading into the dispute this week was tort attorney Thomas Henry of San Antonio, one of the more prominent lawyers in the state. In a press release, Henry said the bill would “make Texas highways more dangerous and shift liability from guilty trucking companies to individual drivers and small businesses.”
“All Texas drivers will pay higher insurance premiums for their automotive policies,” Henry said in the statement. “Their personal medical insurance will rise as well.”
But there was nothing in the Henry statement regarding specific criticism about the admissibility-of-evidence provisions in HB 19. Henry did not refer to the legislation dealing with medical expenses.
The Texas Trial Lawyers Association, however, was more specific in its criticisms. In a prepared statement provided to FreightWaves and other media organizations, TTLA President Jim Perdue spoke solely about the provisions of HB 19.
“HB 19 protects the worst actors who violate the law by letting them hide their safety violations and bad conduct from the court system,” Perdue said in the statement. “As a result, companies that follow the law and comply with safety standards get treated the same as those who break the rules and ignore safety standards.”
Both sides say they are seeking transparency. It’s just a question of how it’s defined.
Given the limited success that previous efforts have had, Esparza is realistic. “There are a thousand ways to kill legislation and only one way to pass it,” he said.
However, he said he believes the efforts are occurring against a backdrop of a push in the current legislature for various reforms. “The legislature has an appetite and has shown an ability in the past to address issues of tort reform,” he said.
He cited successful tort reform legislation from 20 years ago. What the TTA and Texans for Lawsuit Reform are seeking this time is to “effectively go back” and “adjust regulations and laws that fit the current scope of policy.”
The tort bar has “figured out how to get around” previous efforts to limit the size and scope of litigation against commercial vehicles, “and we hope they will fix it.”
Tort reform has been undertaken in many states, with trucking associations often leading the charge. Esparza’s complaints about the system the industry faces in Texas involve complaints that can be — and often are — heard everywhere:
“The trial judges become more and more biased where the best chances we have in Texas is to see these cases get to the Supreme Court where they are less biased” was one of Esparza’s points. Another: “Even if we pass everything we are seeking, there is definitely a list of things we would look to have addressed and we are coming back.”