|
INNOCENT SELLERS LEGISLATION
STATUS
On February 12, 2007,
Congressman Dan Boren (D-OK) introduced H.R. 989, the Innocent
Sellers Fairness Act. This legislation seeks to protect
sellers from frivolous lawsuits that punish them for simply
selling legal products to their customers.
ANALYSIS
Every year, millions of
lawsuits are filed in the United States. Many of these
lawsuits turn out to be frivolous in nature, yet the accused
party must expend time and resources just to establish that
fact. The abuse of the legal system has had a profound,
negative effect on the economy, causing reduced employment and
draining national productivity. Excessive litigation has also
driven up insurance premiums. Frequently, small businesses
are the unfortunate targets of these trivial lawsuits.
Frivolous lawsuits have
turned the civil justice system into a perverse game of
"litigation lottery" for greedy trial lawyers. However,
measuring the problem in terms of actual lawsuits only tells
part of the story. The real story is the overwhelming effect
the fear of litigation has had on small business. Nearly
every business decision is weighed against the prospects of
being sued. Operating under a fear of possible litigation,
small businesses are increasingly reluctant to hire new
employees, expand operations, introduce new products, or
improve existing ones. Legislation is needed to restore
common sense to the civil justice system and to allow small
businesses to make decisions on the basis of what's best for
the economy, not the trial lawyers.
While we believe it is
misleading to look at just the hard costs of our civil justice
system, even those numbers are daunting. According to a 2003
study by Tillinghast –Towers Perrin, including insured and
self-insured costs, the U.S. tort system cost $233 billion in
2002. Tort costs increased 13.3 percent in 2002, a lower
growth rate than the 14.4 percent increase observed in 2001
but much higher than the long-term average of 9.8 percent.
U.S. tort costs accounted for 2.23 percent of gross domestic
product (GDP) in 2002. This reflects the highest ratio of GDP
since 1990. U.S. tort costs were $809 per person in 2002.
This compares to a cost of $12 per person in 1950. When
viewed as a method of compensating claimants, the U.S. tort
system is highly inefficient, returning less than 50 cents on
the dollar to the people it is designed to help — and
returning only 22 cents of the tort-cost dollar to compensate
for actual economic losses.
For the purposes of
their study, insured tort cost included first-party benefits
(the cost of legal defense and claims handling), benefits paid
to third parties (claimants and plaintiffs) or their
attorneys, and an administrative, or overhead, component.
Moreover, their definition included such costs associated with
all claims, not just those that actually reach the
courthouse.
According to a 2004
study done by the
U.S. Chamber Institute for Legal Reform, the
tort liability price tag for small businesses is $90 billion a
year. The study also finds that small businesses bear 68
percent of business tort liability costs, but take in only 25
percent of business revenue. The high price of liability
insurance forces many small businesses to pay over $16 billion
a year in out of pocket tort liability costs because they
can't afford insurance. For a small business with $1 million
a year in revenue, the average tort liability cost is $17,000
per year.
LEGISLATION
Under current law,
sellers are held liable for any negative effects of the
products they sell, even if they did not have anything to do
with the creation, design, installation, or consumer's use of
the product. As a result, our legal system is rife with
numerous tort lawsuits targeting innocent sellers. This
climate poses a serious burden on small businesses as they do
not have the resources to take each case to court.
Consequently, sellers often settle out of court, which in turn
results in insurance rates that continue to skyrocket.
H.R. 989 would correct
this gross abuse of the legal system by establishing strict
liability guidelines through for damages resulting from a
product they sold. It would exonerate the seller unless the
claimant proves the seller was the manufacturer or designer of
the product, installed the product, or altered the product in
a way not authorized by the manufacturer. It would provide
this protection to businesses involved in the marketing,
distributing, advertising, or selling of a product.
This bill was created
with the help of SBLC member the National Lumber and Building
Material Dealers Association (NLBMDA), which represents over
8,000 lumber and building material companies. They have a
particularly keen interest in this legislation as a recent
winter 2005 survey revealed that over 25 percent of NLBMDA
members have been the subject of a product liability lawsuit
within the past five years. Of those members, 65 percent have
been involved in more than one lawsuit. According to
the
Small Business Administration, the average cost of defending
against these lawsuits is roughly $50,000 to $100,000.
OPPOSING VIEW
Opponents of tort reform
believe that the current laws are justified, because they
compensate people who have been injured or harmed at the hands
of negligent actors. Furthermore, opponents of tort reform
argue that the current civil justice system imposes upon
businesses and doctors the appropriate disincentives to avoid
irresponsible actions. Finally, there is concern that more
businesses and insurance companies may be more inclined to
settle cases out of court, because of the financial limits,
instead of proceeding with costly litigation.
OUTLOOK
H.R. 989 has been
referred to both the House Judiciary and Energy and Commerce
Committees. As of August 30, 2007 the bill has the
bipartisan support of 48 cosponsors. Last Congress, identical
legislation introduced by Congressman Ric Keller (R-FL) was
never voted out of committee.
The 109th
Congress had several significant early victories in terms of
legal liability reform. After years of effort, President Bush
signed into law both the class action and bankruptcy reform
bills in early 2005. Unfortunately, that was the peak. Both
the medical liability and asbestos litigation reform bills
have stalled in the Senate. It does not appear as if this
issue will be as high a priority for the new
Democrat-controlled Congress.
/I08100807
###
Back to Issue Papers |