Hi, I’m Dennis VanDerGinst being an attorney, I know that the law can get confusing. In Legal Squeaks we provide you with useful and easy to understand squeaks of information on legal and consumer issues that you can apply in your daily life.

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Welcome to Legal Squeaks, I’m your host Dennis VanDerGinst. Today I want to talk to you about a concept I refer to as Claim Shame.

It’s not really a legal concept. It’s more of a phenomena that I’ve observed developing over the course of more than 30 years in, in practice. And what it refers to is the reluctance of some people to pursue lawful and rightful claims that they may have against wrongdoers who’ve caused them damages, or usually they’re, the insurers of those wrong doers, or their own insurance carriers.

And the problem with this phenomena is that if you don’t use your rights, you lose your rights.

And that might seem like an alarmist thing to say, but it’s true. So I’d like to talk about why it is this mindset exists and why it’s not a good thing.

So I’m going to start by addressing the reluctance of some people to pursue wrongdoers who have caused them damages. This is usually, by the way, in the arena of personal injury cases, but it can also be in other areas of law, for instance, dealing with contracts, criminal charges, etc..

Now, certainly I agree that people shouldn’t be quick to pursue legal remedies when it’s not warranted. But too often people either presume they don’t have a valid legal argument, or they’re ashamed to pursue it.

So why is that? For some people, it might just be the way they were brought up. Their, their religion, their spiritual beliefs, the turn the other cheek mentality. But the source of this mentality, which is most troubling, is the misplaced concern that frivolous lawsuits are clogging up our court system or are the reason insurance and business costs are so high.

Now do frivolous lawsuits happen? Sure, anyone can sue anyone for anything. But there are so many checks and balances built into our civil justice system that frivolous lawsuits are typically dismissed long before they’re ever seen and heard by a jury.

And if a case gets to a jury, both sides have an opportunity to present their evidence and the overwhelming number of times the jury gets it right.

But even then, if there is concern about a runaway verdict, for instance, the defendant can exercise motions and appeals to get any wrongful judgment discounted or discarded.

So frivolous lawsuits present no real danger to our legal system. So why is it that it’s become such a concern?

[03:09]
The simplest answer is that big business and insurance interests have poured billions of dollars into public relations campaigns and lobbying efforts to minimize their exposure to lawsuits.

This effort is what’s been part of what’s known as tort reform or the tort reform push.

Now, tort reform refers to proposed changes in the civil justice system that aim at reducing the ability of victims to bring litigation for injury claims or to reduce the damages that they’d be entitled to receive. It really is counter intuitive with respect to our jury system.

We have juries for a reason. The juries listen to the evidence, the juries decide who’s at fault. The juries assess the kind of damages that should be awarded. The tort reform push is counterintuitive to that.

And the message of these campaigns has been focused on arguments dealing with frivolous lawsuits and jackpot justice, which is a term they’ve coined to express this notion that people file lawsuits to gain windfall, windfalls of undeserved compensation awards, again, ignoring the statistical evidence that stacked up against that notion and the very nature of our civil justice system, which provides so many checks and balances.

Now, one of the most infamous examples of this campaign was the McDonald’s coffee case from many years ago. It’s become kind of the poster child of the excessive lawsuit argument. Most of you have probably heard about the case.

The headlines were basically that some woman won millions of dollars from McDonald’s because she spilled hot coffee on herself.

And the myth was that this woman, while driving a car, holding McDonald’s coffee between her legs, spilled some coffee on herself and then, inflicted with minor burns, she sues McDonald’s as if she didn’t know that, you know, coffee’s hot and driving with it between your legs could be dangerous. And ultimately, she wins millions of dollars even though she was to blame.

Now, that was the picture that the tort reformers painted. On the surface, it certainly made for a compelling argument. I mean, how can someone get paid millions of dollars for spilling hot coffee on themselves?

Only that was not what really happened.

That was an incomplete and distorted report of the true story.

So let me give you the real facts. And what I’m going to tell you here is easy, is easily verifiable, by the way. I’ve got no hidden agenda in exposing the skewed and false reporting of this case. To borrow from the X Files, the truth is out there.

So the person who was injured was, by the way, a 79 year old woman. That really doesn’t make too much difference, but it was a sympathetic character. And she was parked in a car that her grandson was driving. So she wasn’t driving and the car was not in motion. It was parked.

And even though she may have had arguments available to her that the Styrofoam cup that she had was flimsy and hard to handle, she didn’t make any excuses along those lines.

She acknowledged that the spill was, the spill itself was her fault. What she took issue with was that the coffee was ridiculously hot, 190 degrees, which at 140 degrees, serious burns can occur. So this was near the boiling point and it was completely unnecessary to be that hot.

In addition, this wasn’t some minor injury. It caused third degree burns on her legs and her genitals, almost 16 percent of her body, nearly killing her. She had to be hospitalized for eight days.

She had to require extensive surgery and skin grafts and had permanent scarring as a result. In fact, her recovery lasted for over two years.

Her doctor testified at the trial that it was one of the worst scald burns he had ever seen.

Now, on the other hand, McDonald’s, at the trial, admitted that it had known about the risk of serious burns from its scalding hot coffee for at least and probably more than 10 years. Because from 1982 to 1992, McDonald’s coffee had burned more than 700 people, including children and infants.

Many of them had received severe, severe burns to the general area, their inner thighs, buttocks, the same area where this woman had been, sustained most of her, her injuries.

Witnesses for McDonald’s at the trial admitted in court that consumers are unaware of the extent of the risk of these serious burns from spilled coffee. They admitted that they did not warn customers of the nature and extent of this risk, and they couldn’t offer any explanation as to why they did not warn people other than, I guess, the presumption that, hey, coffee can be hot.

But the coffee was so much hotter than, for instance, competitors that that’s what made, made this so, so dangerous and such a huge risk.

The McDonald’s witnesses also testified that it didn’t intend to turn down the heat. There was no plan at that point for the procedure to be changed, which, you know, that’s not necessarily something that’s going to fall in their favor when a jury is listening to their righteous indignation, is probably what they were the way that they were viewing it at the time.

McDonald’s actually admitted during the, the trial that its coffee is not fit for consumption when it sold because severe scalds can occur if it spilled or if its, its drunk at that, at that temperature.

Now, the other thing to understand is that she didn’t want to go, to court. She just wanted McDonald’s to pay the medical expenses that Medicare had not covered, which was estimated at around $20,000. McDonald’s offered her $800, which is why the lawsuit was filed to begin with.

So after hearing the evidence, the jury concluded that McDonald’s, that their handling of the coffee was irresponsible. Now, this is, again, one of those situations that wasn’t reported accurately.

It, the jury, only awarded $160,000 in compensatory damages after deciding that she had been comparatively negligent in contributing to the injuries.

In other words, they they determined that compensatory damages were worth more, but they discounted it because she was the one who admitted spilling on herself.

But then it awarded punitive damages, and punitive damages are designed to punish. So they wanted to punish McDonald’s for its callousness, knowing that over 700 people had been severely burned before. Yet they didn’t do anything about it and they weren’t planning to do anything about it going forward.

They were upset. The jury was upset, so they assessed $2.7 million in punitive damages.

Now, that $2.7 million basically represented two days coffee sales for McDonald’s. That’s how it was arrived at. In that context, it certainly didn’t seem like it was that outrageous. But as I said before, there are checks and balances in our civil justice system. So McDonald’s argued that the punitive damages was excessive and the judge reduced the final verdict to $600,000.

Still not good enough, McDonald’s intended to appeal, which likely could have been drug out beyond her life expectancy because she was elderly. So they ended up settling the amount for an undisclosed amount, but it was certainly far less than the $600,000.

So, as I said, the civil justice system works very well usually. Here, a jury found that the evidence presented on her behalf was compelling. What it did in response, when put into that context, made a lot of sense and represented only a very modest punishment of McDonald’s. And further, when the argument was made that the jury’s verdict was excessive, that problem was appropriately addressed by the trial court who substantially reduced it.

So how is it that the public’s view of this case got so warped? Well, essentially, greedy corporate interests spent years running a disinformation campaign along with a lot of money, which much of the media bought into holding up the McDonald’s coffee lawsuit as an example of this supposed epidemic of frivolous lawsuits.

The case obviously has become the target of countless jokes since then. And people have embraced the idea of people making mountains out of molehills and trying to get money for nothing.

And it’s that perception that has become the pervasive mindset of a lot of Americans to the point where it’s eroded a lot of confidence in the system and led to the spread of this attitude that I referred to, this attitude of Claim Shame.

As an injury attorney, I can’t tell you the, the many times, the countless times that people have come to me, at the end of their rope, almost apologizing for asking, you know, the need to ask for help because they have become ashamed to pursue legal remedies due to this type of conditioning that they’ve undergone via media persuasion and lobbying efforts influenced by interests who simply want to minimize their own lawsuit exposure.

I hear from so many people who come to see me about injury claims that, you know, I’m not the suing type. Most people don’t even realize that when you take an injury claim to an attorney, it isn’t typically going to immediately be filed as a lawsuit.

Most injury cases are negotiated and settled before even having to file a lawsuit.

And those cases that do have to get filed as a lawsuit, only a small portion of those actually go to trial because they, too, eventually get settled. Most of them, once the parties have an opportunity to do some investigation and discover the strengths and weaknesses of their respective cases.

Yet people remain either jaded or ashamed to look into their own rightful remedies for harm that they suffered due to the negligence or wrongdoing of another.

And this, this attitude can impact juries as well, because often there are jurors who come into a case skeptical of the motivation of the injured person. Fortunately, that bias can often be overcome if they’re willing to at least listen to the evidence with an open mind.

Now, as I mentioned at the beginning of the podcast, there’s, there’s also often a reluctance people have to pursue claims with their own insurance carriers, and they usually offer 2 explanations as to why, that is. Why they don’t want to file a claim with their own insurance carrier.

The first one is because it’s not their fault. They shouldn’t have to pay for it. Their insurance company, shouldn’t have to pay for it.

The second one, the second reason that they don’t want to pursue their own insurance company is because they don’t want their insurance premiums to go up.

So let’s, let’s talk about those reasons.

The first one, you know, please don’t feel sorry for your poor insurance company. Net premiums in the last couple of years have exceeded a trillion, with a T, dollars in the insurance industry.

You pay for your premiums for a reason. If there’s, by the way, if there’s another party that’s responsible for your injuries, your insurance company’s going to have a subrogation right. That means that they’re going to be entitled to recoup all or at least some of what they paid on your behalf. So, again, please don’t feel sorry for them.

In addition, sometimes using your own health insurance or other insurance coverages, for instance, in, in car accidents, that that can provide the quickest and most convenient way to get the necessary treatment you need, or in the case of car accident cases, it can get you the vehicle repairs or replacement or a rental while the other party is still investigating.

Plus, when you use your own carriers, under certain scenarios, a good lawyer can coordinate your benefits in using those coverages so that it eventually enhances the amount of money that you’re going to get in your pocket when the case is settled.

So the second reason may warrant a little more consideration, at least when it comes to concern over auto insurance premiums rising if you make a claim.

Now, normally, depending on the state that you’re in or the state where you have your insurance contract, you’re not going to see a premium rate increase if you make a claim when you’re not at fault.

Now, that’s not that that can’t happen, but normally it doesn’t. And you can always find another carrier if it does, because, again, if you need the coverage, you need the coverage. That’s what you pay the premiums for. So take advantage of that.

So there’s one more area where we often see Claim Shame exhibited, and that’s in those situations where an injured person feels that they caused or contributed to the accident and therefore they’re not deserving or entitled to any compensation.

But that’s not always the case. As we discussed with the McDonald’s coffee case, a person can cause the accident, yet not be responsible for the extent of the injury, In that situation, she admitted to, you know, being at fault in spilling the coffee, but she certainly shouldn’t have, nor was she found to be accountable for the extent of the injuries. That was on McDonald’s.

Also, the law recognizes that when accidents happen, it’s not always 100% the fault of one party or the other.

There can be an apportionment of fault between all the parties. Some states recognize what’s known as contributory comparative or modified comparative fault, which limits the rights of an injured person to recover in a pro-rata relation to their own percentage of fault.

So if a jury hears all the evidence that the injured person was 10% to blame, his or her recovery would be discounted by 10%.

So, for instance, slip and fall accidents, often it’s a combination of fault there. People need to watch where they’re going. They know that there’s, there’s ice in the location they’re, they’re walking, so they have to be careful. They have to watch where they’re going to have to be careful of how they walk, what kind of shoes they’re wearing, et cetera.

But it might also be that the either the snow or ice existed for such a period of time or was created in such a manner that the property owner is also to blame, to some extent.

A jury might hear that testimony and decide, well, we feel that the injured person was at least 20% at fault. They should have taken better care of of how they were walking in that area during that period of time. But they may have decided that, you know, reasonable compensation for the type of injuries was $100,000.

Well, under a comparative fault state, that hundred thousand dollars would be reduced by 30%. So the injured party would still get $70,000.

Now, there’s a very extreme theory of law called contributory negligence, where if you are at fault at all, you get nothing. I think that’s only in one state, I think it might be Louisiana.

But there are other states that have modified the comparative fault rule, which basically would say then they’d have that same reduction under the scenario that I just described, where if it’s anything less than 50 percent, it’s going to be reduced by that amount in the amount that remains will be something that the injured party would be entitled to for compensation. But the moment they hit that tipping point, if a jury decides that the person is more than 50 percent at fault in these modified comparative fault states, they get nothing.

So the point is that even if you were partly to blame in causing an accident, you might still be entitled to a recovery. And in fact, in workers’ compensation scenarios, you’re entitled to benefits even if you’re completely to blame, as long as you were injured at the time that you were, at the time you were injured, you were working and in furtherance of that employment.

These are laws that were put in place for the general well-being of the public. So you need to be, you need to feel entitled to take advantage of your rights to compensation. They’re intended for everyone’s benefit. Don’t be a victim of Claim Shame.

So thank you for tuning in.

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Also, be sure to check out our other podcast, Uncommon Convos. I hope you’ll tune in next week. Until then, have a great day. Stay safe. And I love you all.