Deep Pockets: Yes on 51

Proposition 51 may be the most frustrating ballot issue to face California voters in years. The problem of “deep-pockets” damage awards has been almost entirely obfuscated by the television ads sponsored by both sides at the cost of millions of dollars. The ads focus on horror stories that at best exaggerate, and often have little to do with the initiative measure. Unpleasant as the campaign has been, one side must win and one must lose. Voters cannot mark “None of the above.”

The opposition, financed largely by trial lawyers who argue damage lawsuits, claims Proposition 51 would wipe out an injured party’s lawful right to collect full compensation. It would, the ads imply, give toxic polluters free rein to poison others. Drunk drivers would go unpunished. This is not so.

The proponents, bankrolled primarily by insurance companies and businesses, insist that the new statute would provide relief from outrageous jury awards, save taxes and ease the “crisis” that has resulted in the inability of many local governments to insure themselves against lawsuits. Perhaps so, but that is not guaranteed.

But clearly cities, counties and other public and semi-public agencies face a liability-insurance problem that the Legislature has refused to deal with because lawyers dominate the key Assembly Judiciary Committee that handles such legislation. Proposition 51 would not resolve the problem, but it is a start.

The Times believes that, on balance, the measure may do more good than ill, and therefore we recommend a Yes vote on Proposition 51.

Just what is the issue involved? Let’s use the example of the drunk driver who runs a stop sign partly obscured by a tree branch. His auto hits a pedestrian--injuring him severely, perhaps permanently. The pedestrian sues for actual damages, such as medical bills, and for pain and suffering, which could be the inability to do certain types of work or to work at all, because of permanent disability. The pedestrian sues both the driver and the city--the city because it was negligent in allowing the branch to obscure the stop sign. A jury awards actual damages and pain and suffering, holding the drunk driver 95% responsible and the city 5% responsible.

But the drunk driver has no insurance, and no assets. Under current law, the city then could be held responsible for the entire damage award, even though the jury found it only minimally responsible. Of course, the deep-pockets entity held liable need not be a city or a wealthy company. It canbe any citizen, whose assets can be seized even though his actions had only a minor role in causing the accident.

Proposition 51 would change the law in respect to pain-and-suffering damages only, and would not necessarily limit the amount of the judgment. The city might still have to pay for all of the pedestrian’s hospital bills, therapy and the like. But it could be forced to pay no more than 5% of the pain-and-suffering award.

That’s it. Not the perfect solution to a problem that has no perfect solution, but enough of a solution that it warrants voter support on Tuesday.