Do Caps on Damages Promote Litigation and Make Roads Unsafe?

    By: Mario Palermo of Palermo Law Group

    I asked myself this question after resolving a case halfway through a trial in Madison, Wisconsin.

    I represented the widow of a 66-year-old salesman who was killed when the rear wheels of a semi truck’s trailer ran him over and crushed his skull. The salesman was one week away from retirement. He was at the scene to visit with a customer at a construction site in Gale Township, Wisconsin. The customer, the foreman of a road repaving crew, asked the salesman to take over flagging duties at the construction site so the foreman could check on some equipment. Shortly thereafter the salesman was run over.

    The driver of the truck that ran over the salesman and the foreman speculated that the salesman must have walked into the truck’s trailer. In essence, they said the accident was the salesman’s fault. They even suggested that the salesman was suicidal and purposely killed himself. The salesman’s family knew better. They knew that the hard-working patriarch of the family was not suicidal and thought the notion that he purposely killed himself a week before retirement was preposterous.

    A lawsuit was filed against the trucking company and the construction company. The salesman was not trained to be a flagger and was not provided with a reflective vest to help make him visible to motorists. The trucker, a professional driver with a commercial driver’s license, should not have run over a pedestrian.

    Written discovery responses filed by the defendants revealed that there were many people at the scene. However, the defendants claimed that the only witness was the construction foreman. The story that both the truck driver and the foreman gave was that the truck driver stopped at the intersection, talked to the salesman and that the truck driver pulled away very, very slowly until he felt the rear wheels of his trailer go up and down.

    I took the depositions of everyone who was at the scene, just in case they saw something. Incredibly, a member of the construction crew, who was not identified as a witness in discovery, testified that he saw the whole thing happen. He testified that the driver never stopped at the stop sign, the trucker was driving like a “crazy bastard”, the driver never checked his mirrors and was driving recklessly.

    Case closed, right? Wrong. In Wisconsin, there is a cap on non-economic damages, such as loss of companionship, in wrongful death cases. The cap is currently $350,000.00 for adults. Not included in the cap are economic damages such as medical bills and lost wages. In this case, the salesman was killed instantly, thus no medical bills. He was a week away from retirement, thus minimal lost wages. In short, the settlement value for the case under Wisconsin law was not much in excess of the cap on non-economic damages.

    By now you may be thinking that the defendants voluntarily agreed to pay the relatively small caps that were available for the wrongful death of a husband and father once the testimony of the witness came to light. Unfortunately, the exact opposite happened. The defendants hired an accident reconstructionist and continued to insist that the salesman was at fault for getting run over. It should be noted that punitive damages are not allowable in Wisconsin in wrongful death cases.

    Incredibly, the story gets even worse. The trucker who claimed he stopped at the stop sign was hired by the Wisconsin trucking company despite the fact that he had a criminal record and a bad driving history. The trucking company continued to retain him as a driver despite the fact that he racked up moving violations while he was an employee. The trucker’s driving/criminal history includes:

    • A conviction for driving under the influence of alcohol
    • Driving a vehicle with a suspended license
    • Driving without a valid driver’s license
    • Another citation for driving with a suspended license
    • Four separate speeding tickets while operating a commercial vehicle
    • Conviction for delivery of marijuana
    • Conviction for destruction of property
    • Conviction for disorderly conduct

    In spite of all of the above, the trucking company did not settle until halfway through a time-intensive, emotionally grueling and expensive trial. Why not? My hypothesis is that the defendants had nothing to lose. The defendants were emboldened by the fact that even if the jury awarded substantial damages, the federal judge was required by law to lower the verdict to the statutory caps. The existence of the caps may also explain why the Wisconsin company hired and continued to retain a commercial driver with a documented history of unsafe driving.

    I suspect that an Illinois company would not have hired this trucker. I suspect that the case would not have gone to trial had the tragic collision occurred in Illinois. My guess is that if an insurance company is confronted with the exposure of what an Illinois jury may award under these circumstances, it would not be so emboldened to let the trial play out to just to see how it was going. Why? Thankfully, unlike Wisconsin, there are no caps for wrongful death cases in Illinois.

    What do you think?

    Mario Palermo, of Palermo Law Group, LLC, has been practicing Personal Injury Law for over 20 years. He is recognized as being in the top 1% of litigators in the nation and has dedicated his career to recovering full and fair compensation for injury victims and their families. To learn more please call us at (630) 684-2332 and visit

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