There’s a huge flaw in the bill that aims to lower Louisiana car insurance rates

A last-minute addition tacked onto the bill aimed at lowering the cost of auto insurance policies by trimming the number of personal injury lawsuits is being touted as an unexpected boon for the injured individuals seeking recompense in Louisiana courts.

Louisiana legislators rushed to give final approval to the Omnibus Premium Reduction Act of 2020, called tort reform by supporters, soon after negotiations broke down between Senate Bill 418’s chief sponsor, state Sen. Kirk Talbot, R-River Ridge, and Democratic Gov. John Bel Edwards to ward off a threatened veto fight that neither side is sure of winning.

But the added wording in one section of the measure approved by the Legislature is so awkward that it essentially creates a new cause of action and allows windfall awards – even for people whose injuries are not that severe.

“You could potentially collect $18,000 for a case with a $5,000 injury. Does that sound like tort reform to you?” said state Sen. Jay Luneau, calculating from sample numbers to illustrate how the complex language works.

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“That’s what happens when you have people doing these amendments who don’t know the law,” Luneau said.

The Alexandria Democrat, who practices this type of law for a living and steadfastly opposed the legislation, found some agreement from the Louisiana Association of Business & Industry, one of measure’s most ardent supporters.

“We have become aware that a problematic provision was included in the conference report language at the last minute, and we are already in the process of working with legislative leaders to fix this language in the special session should the bill become law,” tweeted LABI President Stephen Waguespack, who did not return calls Tuesday seeking comment.

Predictably, perhaps, Luneau and Waguespack disagree on whether Edwards should sign SB418.

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Edwards resumed discussions Tuesday with Talbot.

“I think we can get something we’re all comfortable with,” Talbot said.

While the bill passed both the House and the Senate, the margin was not wide enough to ensure that SB418 would survive a possible veto by the governor in the coming days.

Edwards is meeting with reporters Wednesday and will undoubtedly be asked whether he will veto Talbot’s bill. The governor has 10 days after he receives the bill to veto, if that’s what he is going to do, and that would leave about 10 days to mount an override. If Edwards signs the bill, Republicans would have limited time to rush through changes that would address the bill’s problems before the special session is over at the end of the month.

Edwards met with Talbot Saturday, the latest of several meetings, and also had Matthew Block, his executive counsel. Also attending was Harry “Skip” Phillips, a partner with the Taylor Porter law firm in Baton Rouge. Talbot said Phillips assisted him pro bono at Talbot’s request. Phillips did not respond to requests for an interview.

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They met at 1 p.m. Monday in the Senate basement to have Talbot provide the latest version drafted by him and his legislative and business allies. The two sides agreed they would meet again in an hour. That meeting never took place.

But Talbot instead put together a final version of the bill that included new language without Block’s input. The Legislature approved that version just before the regular session adjourned at 6 p.m.

“The governor’s disappointed we weren’t able to come to some agreement on this after working not only the entirety of the session but especially during the past four or days,” Block said in an interview. “The governor was trying to reach a compromise, trying to reach an agreement. I’m not sure that the other sources behind the bill, especially LABI, were interested in getting a deal done.”

Block said that Edwards agreed to reduce the jury threshold more than halfway below the current level of $50,000, the highest in the country. Edwards agreed to Talbot’s language on seat belts.

But they had differences over what is called collateral source.

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The legislation limits what injured parties can be awarded as medical damages to what they actually paid, rather than what the treatment is listed as costing. Because insurance companies contract with specific doctors at lower prices, under the collateral source rule someone with insurance coverage would receive less money than someone without adequate insurance.

The final conference report – the one presented to lawmakers to approve as the clock was ticking towards adjournment – wording was added that allowed injured plaintiffs with insurance coverage to receive reimbursement for at least a year but up to 18 months of premiums at a rate of 1.5 times the monthly cost. Basically, if an injured party buys a family health insurance policy for $1,000 a month, that person could receive $18,000 in additional damages.

The addition, aimed apparently at incentivizing the purchase of healthcare insurance, wasn’t in the version discussed at 1 p.m.

The wording says “shall,” therefore is mandatory, but also includes “up to,” which makes the wording discretionary. The courts are going to have wade in and sort out the meaning of conflicting language, if SB418 becomes law.

State Rep. Alan Seabaugh, R-Shreveport, who had been a strong supporter of the bill, said the inclusion of this provision surprised him and caused him to freeze in uncertainty. He couldn’t support the bill but didn’t want to be the only Republican to vote against it.

“I just couldn’t figure out what I was trying to do,” Seabaugh said Tuesday in explaining why he did not cast a vote on the bill.

If Edwards signs the bill, Seabaugh said he plans to introduce a resolution that would suspend enforcement of the provision for one year.

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