June 24, 2005 – As a 40-year resident of the Virgin Islands, it is clear to me that certain economic revitalization legislative measures need to be taken to assist everyone in the territory who owns property or a business to survive in this hostile business climate. We already have an inadequate number of casualty insurance companies writing coverage here. Most of those insurance companies have left V.I., and others will not even write coverage here because of the runaway jury verdicts and adverse business climate. The ones who remain provide coverage at extremely high rates because of the lack of competition and because of the greater risk that they undertake when they write coverage in this territory. This is a fact; it is not fiction, as some plaintiffs' lawyers would lead you to believe.
As a former three-term senator and an attorney who has practiced here for almost 40 years, as well as a business and property owner in V.I. for the last four decades, I know the problems well. I recall recently when no one would write any automobile insurance in the Virgin Islands unless there were caps on damages on motor vehicle accidents at $75,000 for non-economic damages, meaning for pain and suffering, all because of the outrageously high jury verdicts. The legislature responded to this by passing legislation that instituted the caps. Previously, the legislature had instituted a cap on medical malpractice suits to enable doctors here to keep practicing and to attract new doctors who could practice without fear of total financial ruin. The alternative would have been to severely impact the medical care available in V.I.
Something more needs to be done now to provide St. Croix and the entire V.I. with more competitive insurance rates. This can be done by capping general non-economic damages and abolishing joint and several liability, at a minimum. It can only assist the economic recovery of St. Croix. This is nothing more than economic revitalization legislation.
Some plaintiffs' attorneys love to throw around the expression "tort reform" like it is a dirty word, but really what we are talking about, particularly in St. Croix, is economic recovery legislation to assist the people of the V.I. While a high jury verdict benefits a particular plaintiff and plaintiff's lawyer in a particular case, it is society at large that ultimately pays for the verdict in the form of higher insurance rates, limited availability of insurance, and more expensive goods and services provided by businesses that have to pay high prices for their commercial insurance coverage.
One of the other things that definitely needs to be done is to abolish the antiquated unfair legal doctrine of joint and several liability, also known as the "deep pocket rule." Under joint and several liability, if two
People are sued and one is found to share even a fraction of the fault, if they have assets or they have insurance, they are held financially liable for all the damage regardless of the percentage of fault if the co-defendant has no assets. That is why the deep pocket defendants are joined in the first place, often when there is little or no basis to find them at fault. Plaintiffs' lawyers know under joint and several liability if somebody is found at even 1% fault and the other person has no assets, the person with the "deep pockets" or the assets or the insurance has to pay the entire amount of damages and then go chase the co-defendant who was really at fault to get it back. This is patently unfair and needs to be changed now.
It is the businesses and residents of our V.I., the taxpayers, insurance companies and consumers alike, who ultimately pay for these lawsuits in the form of higher taxes, higher prices and higher insurance premiums. Our residents, businesses, insurers, and anyone with assets in the territory should only be held financially responsible for their own degree or percentage of fault. If there are co-defendants, as the law now stands, one may have to pay for the other defendant's fault and that defendant's damages. To treat them differently is unfair and inequitable, but it is, unfortunately, the law in the Virgin Islands at present.
As far as caps: there are already caps in the V.I. on non-economic damages. The doctors and hospitals have caps, and operators of motor vehicles have caps in most instances. There is no reason each person in V.I. should not be entitled to some cap on his or her liability with respect to non-economic damages. Non-economic damages are those damages that include any kind of bills as a result of the accident or loss of wages. Nobody is trying to cap those. It is that indefinable vague pain and suffering that needs some caps. The reason for caps for operators of motor vehicles was enacted in 1999 because there were no insurance companies left in the territory that would write auto insurance without some type of caps.
As with the non-economic $75,000 cap for motor vehicle accidents and injuries, that was an incentive deemed necessary by the legislature to ensure there would be sufficient motor vehicle insurance carriers writing coverage in the territory. Property and casualty may not be mandatory, but some non-economic caps on damages are desirable to ensure there will be sufficient property and casualty carriers in the territory to provide reasonable rates of insurance to businesses and property owners.
At present, with respect to property and casualty insurance in general, there is only one national carrier writing and two local companies on a direct admitted basis providing such coverage in the V.I. People can lose their businesses because of the inability to get insurance or get such insurance at a reasonable price. It has happened in this territory before and could happen again unless something is done to assist our economic revitalization and recovery by enacting legislation similar to that already existing in the V.I. to help the doctors, the medical profession, and even the motorists.
These are merely some of the suggestions to assist in the revitalization of our Cruzan and V.I. economy, and no one is suggesting that lawsuits be eliminated or even that economic damages be restricted.
Editor's note: Mr. Bryant, Esq. is a partner in the law firm Bryant, Barnes, Moss & Beckstedt, LLP. He is a 40 year resident of V.I. and a former three-term senator.