March 2016 Subrogation Newsletter
Driverless cars – more appropriately known as “autonomous vehicles” – are here. For most of us, driverless cars were something only seen in cartoons like “The Jetsons” — no longer. Mercedes-Benz recently introduced the 2017 E-Class Sedan at the 2016 North American International Auto Show. It boasts features that would be the envy of George Jetson, with autonomous-driving capabilities that let a car go farther on its own before the driver takes over and stays on track on curvier roads. Trial lawyers are licking their chops and subrogation professionals should be right there alongside them.
No-fault insurance – like free health care and free education – sounds good, but doesn’t work in the real world. No-fault premiums are more expensive than personal responsibility systems where tort actions are allowed because both the innocent victim and the careless tortfeasor are compensated regardless of fault. Contrary to public perception, no-fault does not reduce litigation costs. Litigation, over property damage (the most common dispute following an accident), and, over whether a claimant has reached a verbal or monetary threshold, continues to plague no-fault states. However, it appears that a movement away from the no-fault system is in full swing.
On May 6, 2013, Oklahoma Governor Mary Fallin signed S.B 1062 into law, creating a new Title 85A of the Oklahoma Workers’ Compensation Act to operate in parallel with existing Title 85, and once again reforming that state’s workers’ compensation laws – including laws addressing subrogation. Known as the “Opt-Out Act”, the law still required employers to provide workers’ compensation coverage and benefits, but they now had two options which were outside the new “administrative” system. It was only a matter of time before the claimant-friendly Oklahoma Workers’ Compensation Commission had its say on the new Act. On February 26, 2016, the Oklahoma Workers’ Compensation Commission, ruling on an appeal under the provisions of the Opt-Out Act, found the Act to be unconstitutional and “not enforceable.”
The second bellwether trial of the DePuy Pinnacle Hip Implant multi-district litigation concluded on Thursday, March 17, 2016, with a whopping $502 million verdict against defendants DePuy Orthopaedics, Inc. and Johnson & Johnson. Following months of trial in the Northern District of Texas, the jury found in favor of all eight plaintiffs — five hip implantees and three spouses — who alleged that they were injured as a result of defective Pinnacle Ultamet Hip Implants. This stands in sharp contrast to the first bellwether trial which resulted in a defense verdict.
While not related to subrogation, we felt that an interesting article about a hypothetical situation in which the peculiar intersection of constitutional, federal, and state law creates an opportunity for the “perfect crime” would be appropriate for the newsletter. In 2005, Michigan State University College of Law Associate Professor Brian C. Kalt hypothesized a “criminal” act that would not be subject to prosecution under any law. With full credit to Professor Kalt, we will take a look at the creativity of the human criminal mind in its never-ending quest not to get caught.