Republican State Sen. Peacock guts key provision of tort reform for businesses, prompting disappointment from colleague Sen. Cloud.

State Sen. Barrow Peacock introduces an amendment on Monday, June 22, 2020 to the tort reform initiative which led to colleague State Sen. Heather Cloud’s disappointment over the amendment’s effective gutting of insurance premium reductions for small businesses, particularly trucking operations like her own.

Sound Off Louisiana subscribers will recall our reporting on the absolute, unmitigated disaster that Louisiana State REPUBLICAN members allowed to transpire which torpedoed the regular session’s tort reform effort.  That total implosion occurred in a conference committee comprised of six members (three from the House and three from the Senate) wherein an amendment was added to essentially offset the bill’s provision on “collateral source” (we’ll be illustrating “collateral source” in very simple, easy-to-understand terms shortly).

In really overly simplistic terms, the amendment essentially provided that insurance companies would have to remit upfront 18 months of health insurance premiums to an auto accident victim.  Astute members of the Legislature, particularly State Rep. Alan Seabaugh (R-Shreveport) recognized what a disastrous effect that amendment had on the whole tort reform effort.  Accordingly, he, along with fellow conservative (and House GOP delegation leader) State Rep. Blake Miguez (R-Erath) declined to even support the measure that came out of the conference committee (they abstained from voting on the measure).

The measure was then presented to the respective bodies of the Legislature, many of whom went on the faith and word of members of the conference committee, that the bill was “a good bill” and deserved their support, where it passed.  The House vote transpired with literally only 17 minutes left before the session expired, and many representatives readily admitted to not having a clue what they were voting upon.  Conservative talk-show host Moon Griffon reported on his June 2, 2020 program that State Sen. Kirk Talbot, who sponsored the tort reform bill, was actually calling a number of his colleagues apologizing for what happened with the bill because Talbot was a member assigned to the conference committee.

When word spread of what the disastrous amendment was and, amid predictions that insurance premiums would actually increase 15% – 20% as a result of the bill, Griffon further reported that many Republican legislators immediately found themselves in the awkward position of having to hope that Louisiana Gov. John Bel Edwards would veto the bill they’d just voted for!  Edwards, a staunch opponent of tort reform, obliged, and we have no doubt he laughed uncontrollably at the very thought of Republican legislators secretly hoping he would veto THEIR OWN bill!  If any Republican had objected (which certainly wouldn’t happen), he could have easily said, “I just did what you guys wanted me to do.”  Obviously, given the bizarre circumstances, there was no initiative whatsoever by Republicans to override Edwards’ veto.

So, along comes the current special session, which ends on Tuesday (June 30, 2020), and an effort is made to essentially totally reset and start from scratch on tort reform.  Given the debacle that transpired last session, we at Sound Off Louisiana have intentionally refrained from reporting anything until we’re right here at the closing wire.  To be blunt, we simply have not shared  some of the optimism being expressed regarding the current effort, nor do we want to get burned again the way we did last session!

It turns out that our skepticism over the current effort has been well-justified.  On Monday, June 22, 2020, State Sen. Barrow Peacock (R-Bossier City), almost assuredly at the urging of Sen. President Page Cortez (R-Lafayette), introduced an amendment designed to essentially gut the current tort reform effort entailing providing much-needed insurance premium relief for small businesses.  He did so by sponsoring an amendment to remove the provision of the original bill called “collateral source” (again, we are going to illustrate “collateral source” in simple, easy-to-understand terms shortly).

Peacock’s move resulted in extreme disappointment to his colleague State Sen. Heather Cloud (R-Turkey Creek), who had based her entire campaign (which she won in the first primary with an astounding 63% of the vote) on the need for tort reform and illustrated that need by the significant adverse impact the current legal climate in Louisiana has on her own trucking business.  Accordingly, on Tuesday, June 23, 2020, many of Sen. Cloud’s constituents texted her and encouraged her to appear on Griffon’s show.  She did so, and we think our subscribers can learn quite a bit by merely listening in on just what all she had to say about the prior day’s developments as led by Sen. Peacock (again, almost assuredly at the direct behest of Cortez):

Sen. Cloud voices her disappointment on the Moon Griffon show on Tuesday, June 23, 2020, the day after the removal of “collateral source” amendment was adopted.

The very next day, Wednesday, June 24, 2020, Griffon had on his show Pelican Institute CEO Daniel Erspamer, who described the latest iteration of the Legislature’s tort reform efforts as “frustrating to watch.”  Griffon unloaded on a number of legislators immediately after Erspamer made his statement, so let’s listen in on just what Griffon’s take is on the current (and past) tort reform efforts by Louisiana Republicans:

On his Wednesday, June 24, 2020 show, Griffon unloads on several state legislators regarding their efforts entailing tort reform.

Now, just as we promised above, we are about to illustrate in extremely simple terms just what transpired by the removal of “collateral source.”  The phrase has the connotation of being very complicated when, in reality, it’s actually very simple.

The easiest way to illustrate the impact of the amendment’s effect is to provide a real-life example.  On Monday, June 1, 2020, Sound Off Louisiana founder Robert Burns had to have a minor surgical procedure performed.  While it was not the result of any traffic accident, it serves the purpose perfectly for this illustration.  The cost of the procedure has already been processed by Burns’ insurance carrier, Blue Cross and Blue Shield of Louisiana (BCBS), and here is the claim form’s details for Burns’ procedure:

Now, as plainly seen above, the doctor billed $1,600 for the procedure; however, BCBS only approved $184.12, and that is the actual amount Burns had to pay the doctor (as noted by BCBS indicating Burns has not yet met his annual deductible and therefore would be responsible for paying the $184.12).

The way the process works now is that the judge or jury is shown only the $1,600 billed.  Accordingly, the judgment is likely to be for $1,600.  Well, since most trial lawyers have one-third contingency contracts for auto accidents, let’s take a look at just how much the attorney receives of that $1,600, shall we?

$1,600 x 1/3 = $533.33.

The plaintiff (had this been an auto accident) actually also gets a huge windfall because, while he paid only $184.12 for the procedure, he would obtain $1,066.67 from the defendant’s insurance company, resulting in an $882.55 windfall ($1,066.67 – $184.12).  Not too shabby, huh?

The original tort reform measure would, as Sen. Cloud explains in the audio above, have permitted the jury to see BOTH the amount the doctor billed for the procedure AND the amount he or she was actually paid and use both numbers in setting the award for damages.  The reason the trial lawyer lobby has fought the inclusion of “collateral source” (i.e. the disclosure of these varying amounts) is because they know most juries would simply not allow for such an unjustified windfall and would only award the actual amount the defendant had to pay for the procedure, or $184.12 in the illustration above, rather than the “phantom number” (as stated by Cloud on the audio above) of $1,600.

Well, what exactly would this mean for an attorney handling this case?  What would his compensation be if the jury only awarded $184.12 rather than $1,600?  The math is pretty simple, and here it is:

$184.12 x 1/3 = $61.37.

So, in the example above, the lawyer loses out on $471.96 ($533.33 – $61.37)!  Now it becomes very easy to see why the trial lawyer lobby so staunchly opposes the introduction of “collateral source” (i.e. disclosing both numbers to the jury) into Louisiana’s legal system, no?

So, when Sen. Peacock described the removal of collateral source from the tort reform bill as “unfortunate” (see first segment of second video above), here’s what he was REALLY saying to Sen. Cloud and other small business owners like her:  “Sen. Cloud, unfortunately, we’re going to have to continue to charge you outrageous insurance premiums irrespective of whether it closes you down or not or forces your relocation out of state because we’ve got some trial lawyers whom we don’t want to see have to downsize from a $3.8 million home to a mere $2.1 million home.”  That’s a heck of a message to send to small business owners across this state, much less others looking to potentially locate here, huh?

One other note we wish to make.  One prominent Republican Louisiana State Senator made a Facebook post stating that “much” of what we have said about the Louisiana Legislature’s tort reform efforts is “wrong.”  Needless to say, we were not very pleased with that Facebook post by that prominent Louisiana State Senator, and we theorized that what was referenced originated from our repeating of  Griffon’s statements he made on his June 2, 2020 program because that was the crux of our Facebook statements which were deemed “wrong” by this State Senator.

We challenged the State Senator to provide specific examples of where we are “wrong,” and we supplied the Griffon link above as our source.  The response from this State Senator?  As U. S. Sen John Kennedy would say, “zero, zilch, nada, nothing.”  We also told the State Senator that we would provide unlimited video time on Sound Off Louisiana for which we would not edit in any way, shape, or fashion for this State Senator to go on camera and elaborate upon how “much” of what we have stated is “wrong,” and we also stated that we felt certain Griffon would extend the same invitation.  Again, no response.

We’re going to conclude by making this simple statement to ALL Republican legislators regarding our Facebook exchange with the State Senator.  Sound Off Louisiana‘s Burns is most certainly not the “Tyler Bridges of the Republican Party of Louisiana.”  For those unfamiliar with Bridges, he is an Advocate reporter who has the moniker among conservative Republicans of being a “stenographer for John Bel Edwards.”  Essentially, they contend he publishes whatever John Bel Edwards tells him to place in his articles.  What we mean by our warning to Republican legislators is that any legislator who believes Burns is simply going to copy and paste the spin put out in an email sent by a Republican legislator on any matter doesn’t know Burns well at all!

Burns has no problem being called “wrong,” and he will happily correct any error pointed out to him by anyone.  That fact notwithstanding, when someone makes a very public proclamation that he is “wrong” on “most” of his commentary on tort reform efforts and then declines to provide the first modicum of substantiation on how he is “wrong,” that individual (be it a sitting Louisiana State Senator or otherwise) loses an absolute boatload of respect from Burns!

So, in final analysis, where does the modified tort reform effort initiative currently stand in the Legislature?  Once again, it is being deliberated by yet another conference committee.  Given the absolute unmitigated disaster that transpired in that committee during the regular session, House Speaker Schexnayder and Senate President Cortez apparently decided to take no chances of a repeat debacle this time around and named themselves as members of the conference committee.  A full list of members follows:

HOUSE conference committee membership on tort reform:

Speaker Schexnayder (R-Gonzales), Rep. Greg Miller (R-Norco), and Rep. John Stefanski (R-Crowley)

SENATE conference committee membership on tort reform:

Sen. President Page Cortez (R-Lafayette), State Sen. Barrow Peacock  (R-Bossier City), and Sen. Jay Luneau (D-Alexandria) — we’ll be nice and not reference Sen. Luneau by Griffon’s nickname for him!

We’ll see what the above crew comes up with (though it would be nearly impossible to top what the crew from last session managed to turn out), how their respective full bodies respond, Gov. Edwards’ action (sign or veto) of any final measure and, possibly, an effort to override Edwards’ veto should one arise.  Who knows, maybe we can even be relied upon to publish something that is “right” in a certain State Senator’s view for once!

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