Tuesday, August 3, 2010

A crisis that will affect insurers, insureds, and everyone else

The Massachusetts court system is facing a massive budget crisis, and it's going to impact all of us in all kinds of ways. Because this is a blog about insurance law I won't go into how it will affect accused criminals and victims of crime, people trying to get divorced or to buy or sell a house, businesses, customers, employees, and . . . well, everyone in every aspect of their life.

Getting a firm date for a civil trial in Massachusetts has always ranged from frustrating to really, really frustrating. But now it's worse than ever. The last trial I had in Superior Court received about eight continuances, all but the first one at the initiation of the court, and several of them because there was no judge assigned to the courtroom.

It used to be that when I decided what county to file a case in, I would think about which courthouses had the best rotation of judges for the particular issue. Now I think about which county my case is most likely to ever see the light of day in a courtroom.

And, folks, that was the condition before the most recent round of budget cuts. Massachusetts Lawyers Weekly reports that the current round of budget cuts will require that 250 to 300 court jobs be eliminated and that 14 courthouses be closed.

How will these cuts affect insurance? Here's a minor example: Last week the Supreme Judicial Court, in Papadopoulos v. Target Corp., 457 Mass. 368 (2010), overturned well over a century of established law about when a landowner can be liable for someone slipping and falling on ice or snow.

The SJC replaced a fairly cut and dry standard -- natural versus unnatural accumulation -- with the standard of reasonableness. That means that there is whole new body of law that needs to be developed before plaintiffs can determine whether they have a viable claim and before general liability and homeowners insurers can know whether they should settle a case or defend it.

And that body of law can't be developed without judges with the resources to hear cases. Almost all the slip and fall on snow and ice cases that ten years ago would have gone before a judge, either on summary judgment or at trial, will now go to mediation or arbitration. That means no body of law will develop, and that means everybody--claimants, insureds, insurers, and the general public, will be acting on guesswork. One of the most important bases of our legal system --stare decisis--the system under which judges are bound by precedent, cannot occur without that precedent being made by the courts. If you walk outside in the wintertime; or if you are an insurance adjuster trying to determine the settlement value of a claim, a landowner or a businessowner or a homeowner trying to decide whether you need to put salt or sand on your sidewalk if there is a dusting of snow; of you are a plaintiff's attorney or a defense attorney trying to do the best job you can for your clients, you are the loser here.

For information about help court officials are requesting, click click here. You can check for periodic updates from the courts here.

No comments: