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End of ‘frivolous’ lawsuits? Local businesses see tort cases rise

Palm Beach Post, August 20, 2017

By: Antonio Fins

Is America’s litigious streak ebbing?

Tort lawsuits have been headline news ever since a grandma spilled a cup of coffee on herself and won a million dollar-plus lawsuit. They’ve also been the bane of businesses decrying “frivolous” complaints for raising their legal expenses — and the cost to consumers.

I’ve seen it all in my years as a journalist, including a group that sued gentlemen’s clubs for failing to adhere to Americans with Disabilities Act compliance. And, yes, I’ve reported on personal injury lawsuits that were legitimate, and the punitive and economic damages reasonable and necessary to address the consequences.

But a Wall Street Journal story, citing data compiled by the National Center for State Courts, could signal relief to businesses.

Maybe.

How businessmen in Jupiter, WPB, Lake Worth learned from failure

The Journal reports that tort cases (primarily auto, medical malpractice and product liability cases) declined from 16 percent of civil filings in state courts in 1993 to about 4 percent in 2015, “a difference of more than 1.7 million cases nationwide, while contract disputes rose from 18 percent of the civil docket to 51 percent during that period.”

The opposite has been true in Palm Beach County, however. Over the past decade, case filing stats provided by Malarie Dauginikas and the staff at the Office of the Clerk & Comptroller show a sharp rise in the number of tort cases filed in the county. In 2016, the number of tort cases filed — 3,976 — was 700 cases higher than in 2007.

One attorney, Irwin Gilbert, says don’t expect a drop-off.

Gilbert, a partner in the law firm Kelley Kronenberg’s West Palm Beach office, pointed to a case in which he is defending a security company being sued by a resident in a gated condo community.

The resident, Gilbert explained, is being foreclosed on and he is suing the security company for “hurting his feelings” when the security company’s guards directed the resident to the visitor’s entrance rather than the one for residents.

“You can’t make this stuff up,” he said. “We have one silly case after another.”

If there has been a drop-off in business-related litigation, Gilbert said, it is in the B2B lawsuit category. And he said that change has more to do with money than law.

“What I have observed is a change in culture that reflects is a tremendous sensitivity now to cost and expense,” said Gilbert.

Companies are taking a harder look at the cost-benefit analysis to decipher whether to spend the funds on litigation rather than conceding the loss as a lesson learned.

“Companies have been forced to take a more conservative view,” he said. “They are taking a second and third look before deciding to pull the trigger.”

Gilbert said companies will still sue to, say, keep a former employee from breaking a non-compete clause or to protect a trademark or trade secret.

But in cases where a company is owed money, he said companies are “asking more sophisticated questions, and many more questions, about how the litigation could disrupt their business, how long will it go on and whether the amount owed is really recoverable by litigation.”

Good points to consider before suing, period.