Trying Our Patience

A few months ago, I was invited to speak to a group attending the federal legislative conference of the National Tank Truck Carriers.

I’m pretty expert at preparing people who come to Washington, D.C., to lobby their congresspeople. For almost any issue, there are reasonable opportunities to advance an agenda in the capital irrespective of which party is in power.

When insurance brokerage executives come to town, there are always issues where we can move the dial. Most times these issues are not Republicans versus Democrats, liberals versus conservatives. Quite often they are business versus business or regulatory in nature.

But try saying something positive to tank truck operators, the No. 1 target of billboard trial lawyers, whose insurance rates are astronomical and who face existential threats to their business—based on the legal system alone. In the realm of lawsuit abuse reform, the battle lines are purely partisan. Not a single Democrat in Congress would side with the business community in support of legal reforms.

It wasn’t always that way. Not too long ago, “Blue Dog Democrats”—mostly Southern, culturally moderate but fiscally conservative and pro-business—would help try to moderate the influence of the trial bar. While technically there still is a Blue Dog caucus, the 1990s-era Blue Dogs have been tossed out universally by Republicans, mostly of the MAGA variety.

There was little I could say to encourage the trucking industry. Inasmuch as D.C. is a one-party town now (with Republicans in control of the White House and Congress, just as four years ago it was a one-party town with Democrats in control), it still takes 60 votes in the Senate to advance any substantial policy reform. The Council has many Democratic Party friends who help us on multiple issues, but none of them will defy the trial bar.

According to the American Tort Reform Association, trial lawyers in 2024 spent $2.5 billion on nearly 27 million legal ads—far exceeding the $1.1 billion spent by pizza chains on 4.1 million ads nationwide. Television advertising alone jumped to 16.4 million ads in 2023, up 44% from 2017. As I type these words, personal injury giant John Morgan is on the tube talking “bigger is better.” The suggestion is clear—before you call the cops, you probably want to call a trial lawyer ready to secure a major payday.

Just imagine how much political money the trial bar pours into Democratic coffers. Increasingly, they’re investing in Republican lawmakers as well, particularly at the state level and in the South where the GOP maintains power.

That said, the politics of lawsuit abuse reform are not hopeless. Insurance rates in Florida have plummeted since Republican Gov. Ron DeSantis and the state legislature enacted legal reform in 2023, according to a July report from the Florida Chamber of Commerce. Litigation has also declined by 30% in the wake of the legislation that “reduced risk-free litigation through the elimination of the one-way attorney fee statute that forced insurers out of business or out of the state.”

The Chamber of Commerce also noted that auto insurance costs are falling in Florida, with leading insurers seeking rate reductions of 6% to 10.5%.

Georgia was an additional success story this year, falling from No. 1 to No. 4 on the American Tort Reform Foundation’s 2024–2025 list of U.S. “Judicial Hellholes”—jurisdictions deemed to endure the worst lawsuit abuse. While the Foundation highlighted nuclear verdicts and other continued legal challenges in the state, it noted reforms pressed by Republican Gov. Brian Kemp, focused on “phantom” damage awards and “jury anchoring.”

Phantom damages are awards derived from excessive medical billing that is not paid. Thanks to bills Kemp signed in April, defendants in a lawsuit can submit evidence showing the specific amount required to satisfy healthcare provider charges, which can be significantly lower than the actual charged amount. To address anchoring—when plaintiff attorneys urge sizable award amounts that then become the “anchor” for jury thinking—the legislation restricts such approaches for non-economic damages to the post-evidence period of a trial and limits its usage.

The American Property Casualty Insurance Association (APCIA) convened a summit of key industry players in June, including three of The Council’s four officers. The goal is for the industry to work collectively to move the dial in multiple jurisdictions where tort reforms can be achieved, one step at a time.

“For us, this is among the biggest issues in the market, particularly in the motor and casualty lines,” Zurich North America CEO Kristof Terryn said in a summer interview with AM Best. “There seems to be no end to the nuclear verdicts that ultimately consumers pay for, as the companies become less competitive.” Terryn, like the APCIA, is putting new emphasis on engagement with insureds via brokers to influence litigation issues, particularly third-party litigation funding (TPLF).

The Council and other groups came close in the Trump administration’s One, Big, Beautiful Bill to securing a tax on the beneficiaries of TPLF, but the Senate parliamentarian, literally in the final hours of consideration of the bill, ruled that it did not fit within the parameters of tax legislation. We will live to fight another day on that measure; in the meantime, we will work to expand the number of states (from four currently) that require transparency of litigation financing.

There’s even promising news for my new friends in the tank truck industry. The Texas Senate this year approved a measure that clarified the commercial vehicle litigation process in an effort to stop frivolous lawsuits that threaten truckers’ livelihood. The changes (rejected to date by the Texas House), would speed up collision trials involving commercial motor vehicles so victims get justice quicker while decreasing legal costs. And the Texas Supreme Court this summer overturned a $100 million verdict against a trucking company involving an accident where a pickup truck crossed a median and ran into a truck where the driver was doing nothing wrong.

But the trial bar is playing offense as well. Illinois Gov. JB Pritzker (D) signed legislation this summer requiring companies registered to do business in Illinois to consent to the state’s “general jurisdiction” in toxic torts. This allows businesses to be sued in Illinois courts even if the plaintiffs are not from Illinois and even if the exposure to the toxic substance did not occur in the state.

Litigation-related expenses contribute $6,664 in additional yearly costs for the average family of four, according to a report released this summer by the Insurance Information Institute and Munich Re. They attribute the loss of millions of jobs and billions in tort-related costs to excessive legal system practices, particularly for small businesses.

There is no magic wand to wave over this pervasive lawsuit abuse crisis. It involves thousands of jurisdictions. But something’s got to give. Legal system abuse will be a major priority of The Council in the coming months and years.