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Rick Shapiro
Rick Shapiro
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Can Virginia (VA) be the Best State for Business per Forbes Magazine, and Still Have A Fair Personal Injury Tort System?

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Our law firm’s home office is based in Virginia (VA), and as a Virginia personal injury lawyer practicing in the South, I read with interest an article outlining that Forbes magazine recently named Virginia as the best state for business for the third consecutive year, ahead of North Carolina (NC) which placed fourth (and we also practice injury law in North Carolina (NC)).

Forbes ranked Virginia (VA) first in regulatory environment, sixth for both economic climate and quality of life, and seventh place for the labor environment.

In terms of tort law, which are the civil laws respecting personal injury, Virginia has fairly conservative statutes and laws. Because our state has always been conservative for many decades, Virginia did not enact any significant ” tort reform” legislation mainly because our laws seemed fair towards business before insurance companies and large corporations began attacking the tort laws around the United States in the last 10 years.

For example, Virginia is one of the last states in the United States to still cling to an ancient concept called “contributory negligence” which bars an injured person from any recovery in a personal injury lawsuit if their own negligence contributed to causing the accident in any material way. It forces us to advise clients in Virginia accidents, that even if they were 1% at fault, a jury would be forced to not award any damages to them for their injuries. It is true that their negligence must be material (is 1% material fault?) but even if the other driver was 90 percent at fault, Virginia says the injured person 10% at fault can not recover anything. Most states have abolished this unfair concept and instead adopted some form of “comparative negligence” which usually allows the injured person to recover, if the jury or judge believes the other party was over 50 % negligent/careless. The small remaining number of states that follow the pure contributory negligence legal scheme, and the underlying authority, are as follows: Alabama, Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968); Virginia, Baskett v. Banks, 45 S.E.2d 173 (Va. 1947); District of Columbia, Wingfield v. People’s Drug Store, 379 A.2d 685 (D.C. 1994); Maryland, Board of County Comm’r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997); and North Carolina, N.C.G.S.A § 99B-4(3).

Virginia enacted a medical malpractice “cap” or ceiling long ago as well, long before tort law reformers attacked tort laws around the country. The Virginia cap/ceiling is currently $2 million for acts or omissions after July 1, 2008, but it limits all sources of recovery in a medical malpractice action for a single incident to that total sum of recovery. Virginia’s legislature should raise this cap considerably in the near future, especially with escalating medical costs and expenses.

As personal injury lawyers actively practicing injury law in Virginia for 20 years or more, we realize it is not one of the most favorable states for injury victims, but we are forced to work within the system and obtain maximum compensation for our clients—as is allowable under Virginia law.

Should Virginia reform any of the laws? Absolutely. Virginia, by the state Supreme Court, can by legal decision abandon the ancient concept of contributory fault (as a bar to any personal injury recovery) and adopt a more modern version of “comparative negligence” which allows an injured victim to still recover, but reduces the total recovery by the percentage of the negligence of the plaintiff/injury victim. The concept exists in Virginia by court decision, not a state statute.

One other unfair law Virginia did enact is a total ceiling or cap on punitive damages recoveries. Virginia limits punitive damages to $350,000. (Va. Code Ann. § 8.01-38.1) At least one federal appeals decision declared the cap constitutional. In most circumstances punitive/punishment damages cannot be more than three times the amount of actual or compensatory damages for injuries suffered in Virginia. Historically, the entire idea of punitive damages was to allow a jury to punish a corporation or defendant which had caused civil injury by conscious disregard of a person or the public’s rights. If the damages are capped at an unreasonably low figure, a jury is not going to be able to punish a large or financially successful corporation with multiple million dollars in annual revenue by an award of several hundred thousand dollars in punitive damages. A drop in the bucket is not much punishment, especially if a corporate shortcut (or a dangerous product) causes wrongful deaths of citizens. This punitive damages cap is probably the most glaringly pro-business tort law in Virginia and should be radically reformed.

As lawyers very active in the civil justice system, we are delighted that Virginia is regarded as a good business environment, but at the same time we want to be sure that the laws are balanced in our state of Virginia: we want a level playing field. If a plaintiff can prove carelessness or negligence, the plaintiff should be entitled to recover full and fair compensation. If the defendant can show that it was not careless or negligent, then the defendant should not have to pay any damages at all. That is a level playing field. It is the periphery and around the fringes that typical consumers do not pay close attention to the manner in which insurance companies and large corporations are trying to tilt the table in their favor before an injured person every will walk into a Virginia courtroom. For over 10 years, these insurance interests have convinced the public that many persons hurt are trying to commit a fraud and this is a burden we as personal injury lawyers must overcome every time we go to trial.

We are active in the American Association for Justice, an organization that is essentially a watchdog against insurance companies and large corporations that do not want to pay money damages for injured people’s personal injuries. We are also active in the Virginia Trial Lawyers Association which also serves the same purpose at the Virginia state level-a watchdog against unfair injury and tort laws that the insurance companies keep pushing for—to the detriment of every resident that may be a victim one unforeseen day in the future.

My take on Forbes and Virginia being number 1:

It proves that good business and the tort/injury system can both co-exist, whether in Virginia, or elsewhere, and that our civil justice system is not broken, despite how the insurance industry cries wolf time and time again.