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BP Disaster Highlights That Tort Reform Protects Wrongdoers Not Victims

Ten workers were killed aboard the Deepwater Horizon when the rig exploded; many leave widows and children to fend for themselves in the aftermath of the disaster. But, one very little known restriction in current law related to compensation in these cases will place serious limitations on what these families can recover. The applicable law is known as the Death on the High Seas Act , or DOHSA

If DOHSA is not amended by Congress, the families of those killed or injured, residents of the Gulf region, and we, the taxpayers, will be left with the medical bills and support bills and clean up bills. In essence, it will be up to us to clean up BP’s mess. DOHSA is, actually, one of several laws that cap BP’s (and other oil companies in similar situations) liability for damages. There is the woefully low $75 million cap contained within OPA (Oil Pollution Act) which governs compensation to victims for economic damages and the clean-up, and LOLA (Limitation of Liability Act), a 159-year-old law that seriously limits liability to artificially low numbers.

In the BP disaster, DOHSA creates full immunity to BP; the company is not required to compensate the families of those killed because the law compensates for economic injury, not loss of a loved one; BP’s liability is limited to economic damages only, medical cost for the injured and burial costs and the loss of financial support for the deceased victim’s families. In essence, this cruel law devalues human life and human suffering.

BP has, to some degree, stepped up to the plate, and is attempting to provide interim compensation to some victims of the disaster, even if it is only those who have suffered economic loss. But what about Transocean, the owner/operator of the rig in question? Aren’t they, at least, partially responsible for this disaster? This despicable company is attempting to cite 159 year old LOLA to avoid paying affected states for the economic damages caused in the explosion. It is claiming, under LOLA, that its responsibility is limited to the value of the destroyed rig, an estimated $27 million. This antiquated law should be immediately and retroactively be repealed, and the company should assume the full burden of its responsibility.

Recently, survivors have testified before the House Judiciary Committee, in search of change, in search of compassion, in search of justice. If the corporations responsible for this disaster and others are not made to pay significant damages; if they do not feel it in their bank accounts, then their will be no incentive for change in the way they conduct their business. This must hurt them, financially, and hurt them badly. In order to do so, these laws must be amended or repealed. Otherwise, nothing will be learned by the eleven deaths in the Gulf. Victims of this and other maritime disasters would benefit from the immediate amendment of DOHSA. At the very least, to assure adequate compensation to the injured, dead, or economically damaged, Congress should act to increase the artificially low liability damages caps under OPA and LOLA and amend DOHSA to extend coverage, or provide a death benefit to surviving family members of those killed in the disaster.

This disaster has been a high-profile incident. Politicians on both sides of the aisle have weighed in about BP’s responsibility for all of the damages it has caused. Even hard line Republicans like Congressman John Boehner have called for lifting limitations on damages. My question is this: Why the duplicity? If people who have suffered in the Gulf disaster deserve full compensation, so too does every injured or disabled victim who has had his/her recovery limited by some version of tort reform in the states that have passed this type of corporate welfare, regressive legislation. Lawsuit Financial, the pro-justice lawsuit funding company supports the repeal of all tort reform. Let judges and juries decide issues of liability and compensation. That is what the framers of our constitution envisioned.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.

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