Other Side of Tort Reform: Alabama Woman Hurt By Award Cap

By Jordan H. Weissmann | August 29, 2006

Swollen and limp, Trudy Roy’s left arm hangs dead at her side. With its nerves shredded beyond repair, the limb is little but a source of pain for the 68-year-old former librarian, a constant numbness and ache, like the feeling of Novocain wearing away.

“I wish they would cut it off,” Roy said.

On May 19, Roy was struck by a police motorcycle as it jumped ahead of a parade of runners on Central Avenue in Homewood. Since then, she has been shuffled among two hospitals and a nursing home, undergoing four surgeries to mend her mangled left side.

Doctors are fighting to save her leg, which was broken in five spots and is infected. It is hard to tell whether it will ever work again. But her arm, they say, is simply lost. They can only hope that it one day repairs itself.

For Roy’s trauma, Homewood has offered $100,000, enough to cover less than half of her unpaid hospital bills. Nonetheless, it is the city’s final offer because, as the Roy family has unhappily discovered, a 29-year-old tort reform law protects it from paying more.

The little known act, Alabama Code Section 11-93-2, caps dollar awards in lawsuits against local governments at $100,000 per plaintiff and $300,000 per incident, while preventing suits against individual employees.

When it was adopted in 1977, the cap was worth almost four times more than today. But because it was not indexed to the cost of living or inflation, its value has stagnated, falling among the lowest such caps in the country.

In three-quarters of U.S. states and half of the Southeast, Roy would be able to seek greater damages.

For Roy’s five children and their families, the cap has bred uncertainty and frustration. Federal law dictates that what money they receive go to help cover Medicare’s costs, which will leave nothing to provide for their mother’s long-term care.

“Homewood is someone who could help my mother, and they’re hiding behind the cap,” said 43-year-old Mike Roy, who works as a building inspector for Vestavia Hills. “We’re just asking for her to be taken care of.”

“It was horrifying,” said Lindy Walker, who witnessed Roy’s accident. “You could just hear her pain.”

On that bright May morning, Roy had left home to make a round of errands. She had walked her whole life, never learning to drive, making a mile-plus trek each day to work at the Homewood Public Library. She had taken the job to support herself as her alcoholic husband — a former Army sergeant she met as a young woman in Germany — spiraled into helplessness. She worked the job for 20 years, past her husband’s death, before retiring last November.

Around 11 a.m., she was on her way to the grocery store. As she approached Central Avenue, she noticed two policemen on its grassy median and a distant throng of police officers coming down the road, running for a Special Olympics fund-raiser.

She stopped and chatted with children watching the parade, then waited before one of the officers motioned her across the street. She was midway when officer Jerry Shuttles slammed into her. He had sped to the front of the pack and, seeing Roy at the last moment, attempted to swerve, leaving a 40-foot skid mark and bucking himself from the bike.

Roy’s 118-pound body sailed 10 feet in the air and 20 feet across the road.

Contorted and bleeding, she lay moaning, repeating, “He told me I could go, he told me I could go.”

Wrapped in a lavender quilt, Brenda Roy rocked back and forth at her mother-in-law’s bedside. The 37-year-old elementary school teacher has spent the last months calling politicians: Homewood’s City Council, state and U.S. representatives, anyone. Most haven’t called back, and those who have aren’t sure what they can do.

She is tired and she is bitter, she says — furious at the city that won’t offer enough help and at the law that keeps her family from demanding more.

“We’ve all cried; we’ve all been angry,” she said. “We don’t believe in frivolous lawsuits. But we strongly believe that, in severe situations, the representatives need to amend the law.”

By most accounts, it seems unlikely that change will come.

“It would be an uphill battle,” said Rep. Marcel Black, chairman of the House Judiciary Committee.

Black, a practicing lawyer who has fought some personal injury cases, said he would like to see the cap increased, possibly by indexing it to inflation. But in the Alabama Legislature, he does not expect the fight would go far.

“They would take a position that it would be a crack in the door, going back to the days when Alabama didn’t have caps, going back to the days that we were classified as tort hell,” he said.

When the cap was passed in 1977, local governments were scrambling for insurance. The state Supreme Court had struck down the rule of sovereign immunity, which had kept local governments from being sued.

“In the days after that court decision, it was difficult to get liability coverage period,” said Perry Roquemore, executive director of the Alabama League of Municipalities.

Insurers were simply too wary of unchecked jury awards, he said.

Since then, the majority of states has adopted similar approaches to Alabama’s and passed their own liability caps, usually somewhere in the range of $250,000 to $500,000 per individual.

Conventional wisdom says the caps keep cities’ insurance premiums down, saving taxpayers money.

“You’re talking about taxpayers paying a claim rather than the actual wrongdoer here,” Roquemore said. “That’s why there were limits on liability on government to begin with, as far back as old common law.”

Others say it’s impossible to show the relationships between caps and insurance rates.

“I don’t know that anyone can authoritatively comment at this point on the real impact of tort caps,” said Harold Pumford, executive director of the Association of Governmental Risk Pools.

There just isn’t enough information available to tell, he said.

Until recently, most of the data on the subject has been gathered by insurance companies and trial lawyers, who keep the information guarded for business purposes. When legislatures consider tort reform bills, they rely on these groups for their facts. Furthermore, most companies keep track only of regional statistics.

A project to create the first national database is just now under way. The group undertaking it, called the Public Entity Risk Institute, was created with money from a class-action suit brought by 20 state attorneys general against several insurance companies. The group is compiling tort claims data from across the country to answer questions such as just what caps do to insurance rates.

With about 10 percent of cities reporting so far, the institute has found most lawsuits fall well below even Alabama’s $100,000-per-person and $300,000-per-incident limit. The average claim paid by a city for a wrongful police action was $43,622. The average for a government vehicle accident was $9,278.

The largest suits and highest rewards mostly come from cases involving employment practices, an area not covered by any state cap.

But even with better statistics, it would be almost impossible to hit a magic limit, Pumford said.

“What if her loss was $2 million; would $300,000 have been enough?” he asked. “That’s the kind of thing legislatures really have to wrestle with.”

After the city offered its $100,000, the Roys hired lawyer Allen Lasseter, who is considering the evidence and trying to find out whether Shuttles acted outside his authority as a police officer, which would lift his protection.

Because the case is in litigation, neither the Homewood police nor the City Council would comment.

Before referring questions to his attorney, Homewood Mayor Barry McCulley said he felt the city had responded properly to the family’s ordeal.

“What is ample to one person may not be ample to another,” he said.

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