Monday, March 10, 2014

My State Passed Damage "Caps"--How Do They Apply To My Injury Claim?

I got this question from an audience member at a recent speaking engagement. It was a good question, simply because most people don't realize that Ohio, like 32 other states, passed limits or "caps" on what Ohioans can recover in a wide variety of injury lawsuits.

Let's set aside the damage caps The Ohio legislature passed for medical negligence or malpractice cases. Believe it or not, they are different than the damage caps passed in OTHER personal injury lawsuits, like auto accidents, defective products, and injuries to patrons in stores, for example. I'll leave the medical malpractice damage caps for another post, so stay tuned...


If you're injured by a negligent motorist, for example, you can collect your lost wages, medical bills, and other "tangible" items of damage (the things we can add with a calculator) at 100%--no limits there. But for your "intangible" losses--the things we all hold dear and what I refer to as "human losses," Ohio law limits what you can recover.

These intangibles would include the physical pain and disability associated with fractures, surgeries, loads of therapy, loss of hobbies, and the countless other things you love, like volunteering, babysitting your grand kids, etc. You know--the things that bring you joy and pleasure in this world.

The cap consists of your medical bills and other calculator damages plus $250,000 or 3 times your "calculator" damages not to exceed $350, 000--whichever is LESS. This cap applies even if you have a permanent, chronic injury because of someone else's carelessness.

The only exceptions to this cap are (1) a permanent and substantial physical deformity; (2) loss of a limb; (3) loss of a "bodily organ system;" or (4) a permanent physical injury that prevents a person from independently taking care of one's self in every day activities of life.

Bottom line: if a drunk or texting driver smashes you, causing numerous fractures, and you don't meet one of those 4 exceptions, you're limited to either $250,000 or $350,000 plus your calculator damages.

Who pushed to pass these laws? Insurance companies. Why did they want them? To limit what they have to pay in personal injury cases. They argued that limiting payouts on cases like this was good for the economy and good for business, which would create a "good business climate" and therefore increased jobs.

These laws were passed in 2005. They traded your misery and limping around on a bum leg due to a careless drunk driver for a "good business climate."

So it's fair to ask almost a decade later: Where are all these jobs that were promised? What did we Ohioans get in exchange for limiting what insurance companies pay for texting drivers who maim motorists?

It's really hard to explain this to clients faced with these caps in their cases when they were simply minding their own business and got plowed by an irresponsible driver. It's even harder for them to accept these arbitrary limits when I explain to them that their state representative (whom they voted for) happily endorsed and voted for this law....

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