Johnnie can't read, but he sure knows how to sue — perhaps thanks to all those “get rich quick” ads from lawyers advertising on television. Will also cites sheer stupidity, such as the removal of a riptide warning sign in New Jersey because someone thought the sign was dangerous (never mind the riptides themselves). He speaks of “the warning label on a five-inch fishing lure with a three-pronged hook [that] says, 'harmful if swallowed,' [or] the label on a letter opener [that] says, 'safety goggles recommended.'”

Too Many Plaintiff Lawyers?

Will's point, citing Philip Howard's book, Life Without Lawyers: Liberating Americans from Too Much Law, calls attention to the ludicrous nature of much of modern society. As jurors, we award these plaintiffs gazillions of dollars for peccadilloes for which little real harm was either intended or caused. Some cases are notorious — the hot McDonald's coffee, the phone booth hit by the drunk driver, and so on. Yet behind many of these high damage awards, for which corporations often shell out millions in punitive damages, lies an element of real harm. As I recall, the coffee was extremely hot and apparently served without a lid. In addition, that same phone booth had been struck several times previously by vehicles because of its location, yet the phone company never considered moving it.

Now the big, bad safety lobby is pushing to outlaw cell phone use while driving. Yet to this I say, “Amen!” Phone use while driving has been proven to be as dangerous as drunk driving. It makes me wonder why the plaintiffs' bar hasn't gone after the cell phone manufacturers. Shouldn't there be some sort of warning label that conveys that talking while driving may be fatal? I've never seen such warnings. In fact, many cell phone ads instead show happy customers blindly driving down the street, yacking away. Like the little figurines of a few decades ago showing a barrister in a wig and a motto, “Sue the bastards,” somebody should do just that. Had the People's Republic of China had a decent cadre of plaintiff attorneys running around filing lawsuits, we might not have had the melamine in the milk or other poisons in our toothpaste, dog food, and various Chinese exports.

Consumer Product Safety

Many years ago, a wise auto manufacturer addressed the American Bar Association. The man was Lee Iacocca, then president of Chrysler Corporation, and he told them that he was concerned about the 1,000 percent increase in product liability litigation and 400 percent increase in awards, as it was causing a drop in America's competitiveness.

“What we're doing to ourselves in this country now is making it more and more difficult to take even a small risk,” Iacocca said. “Every business and every product has risks. You can't get around it. Somehow, and I don't think you can find it in the Constitution, we've adopted the curious notion in the United States that whenever something bad happens to us, somebody is at fault and somebody has to pay.”

Undoubtedly, Iacocca was not a great fan of Ralph Nader. After all, Nader's first attack was on General Motors for its unsafe rear-engined Chevrolet Corvair, which was apparently cute but dangerous. It was Nader, after all, who got us thinking about consumer product safety — the baby toys that caused choking, the flammable children's pajamas, and so forth. Without somebody thinking “safety first,” then we'd still be driving automobiles without safety glass, seatbelts, air bags, and unibody construction. As a result, there would be far more auto fatalities.

Of course Iacocca didn't like to be sued. But if his automobiles were built with safety in mind, then he wouldn't face lawsuits, or at least, the plaintiffs wouldn't win. However, no matter how much the Wills or the Iacoccas complain, we're not going to get rid of plaintiff lawsuits. Why is that, you ask?

Sue Thy Neighbor

One of my earlier columns in this publication alluded to numerous lawsuits, Miller v. So-and-so, and the like. One involved a man sued because a mule he had borrowed died from a beating, and he wanted it replaced with that man's own animal, a donkey. Suit after suit was cited, each with a disposition by the Court. But the citations were all from the Montgomery County, Ohio, court records of 1804, when there were but 600 families in the entire county. So there they were — out in the wilderness of Dayton — meeting in Newcom's Tavern, literally suing the asses off each other.

Folks, we're not going to get rid of lawsuits, because litigation is a religion. It has a temple: the courthouse at the center of every town. It has ritual, good and evil, drama, high priests (the judges), sacrifice, and vestments, albeit without the wigs worn in many nations.

I suppose we adjusters can be thankful for that. It gives us job security and comfort in the knowledge that no matter how bad the economy, our insureds will still be filing claims against each other. We need consumer product safety. If manufacturers will not perform their own due diligence in providing safe products, and the government gets behind in its mandated examinations, then expect that injured parties will start suing our corporate insureds. Where are the underwriters? Do they not ask what the manufacturers are producing, and whether those products are safe? Is it not unethical to be writing product liability insurance on unsafe products? How does that become a “fair and equitable” matter of rating when good insureds have to pay the price of the claims for bad insureds?

High Horses and Pickles

Corporate risk managers often have two options: They can climb on their “high horses” and browbeat engineering and operations into producing safer products, or they can go into the food business, dealing with the pickles and jams that those unsafe products will create. But it seems that too many risk managers are more concerned with the financial aspects of risk than with the practical and loss-controllable aspects. Thus, a multitude of unsafe conditions and products abound.

School system risk managers do have valid concerns. Only a handful of states still permit corporal punishment of students. The paddle went out with the lawsuit. Now the public schools are hothouses of bedlam — local insane asylums for kids under 18 — who rampage around and learn nothing, or so it would seem. Many are also filing lawsuits because Johnny never learned to read, or because Jane got pregnant while under the school's general supervision. Will has a very valid point: When the kids aren't permitted to roam the playground, they are going to instead sit around and get fat. Of course, the parents will sue for that, too.

Whatever happened to common sense anyway? I doubt our 21st century will be any more logical than any other century when it comes to litigation, safety, and the opportunity to make a buck by skimping on the protection of the customer. “Buyer beware,” is a difficult motto in a technological age because now the world is so complicated that the buyer cannot possibly understand it all. This means that lawsuits and actions by product safety agencies will be necessary to keep us out of harm's way. It's a dumb and expensive way to go about it. However, if underwriters won't underwrite and risk managers won't manage risk, then we in the claim business will still have plenty of work in picking up the injured pieces and trying to indemnify the victims.