kirck talbot

State Rep. Kirk Talbot, R-River Ridge, confers Tuesday May 7, 2019 with Insurance Commissioner Jim Donelon on sweeping legislation aimed at lowering auto insurance rates.

In a body with a history of flubs — think weight restrictions for pole dancers — one of the most embarrassing moments came last week when Louisiana legislators triumphantly passed a bill aimed at lowering auto insurance rates by curtailing lawsuits that, oops, also expanded the ability of injured individuals to collect even more damages in court.

The right-wing bubble laid the fault with an evil plan hatched by Democratic Gov. John Bel Edwards. What really happened was more Macbeth than Bond, more Republican hubris than Democratic plotting.

Legislators were supposed to put aside controversial and complex measures to focus on recovering from the coronavirus pandemic. But a limited access session of only 28 days, coupled with overwhelming numbers in both chambers, Republican majorities rushed to turn partisan dreams into law.

To be fair, Sen. Kirk Talbot, the River Ridge Republican who sponsored the Omnibus Premium Reduction Act, was trying to negotiate a way for Edwards to sign the bill and avoid a veto fight that neither side was sure of winning.

Edwards and Talbot found compromise on most issues, but when talks broke down a few hours before the regular session was to end Monday, they still couldn’t find the right wording to navigate the “collateral source” rule. Even states with less Byzantine legal systems than Louisiana’s have trouble with the complex doctrine.

Talbot added a provision, without Edwards’ knowledge, he hoped would address the governor’s concerns. But the wording of the last-minute addition included “shall” rather than “may” and basically allowed plaintiffs to collect tens of thousands of dollars more than their minor injury cost to treat. Talbot later admitted that he wanted “may” to give a judge discretion.

Since Senate Bill 418 passed and was sent to the governor with the mandatory “shall,” there’s no way to fix the language until it becomes law and is addressed in a future legislative session.

“It’s apparent the bill Sen. Talbot authored managed to make absolutely nobody happy,” Edwards said Wednesday, “which is sometimes the sign of a really good compromise, but I don’t think that’s the issue here.”

State Sen. Jay Luneau, an Alexandria Democrat who opposed the legislation, said what happened was Republican supporters rushed ahead without involving lawyers, like himself, who handle personal injury cases involving car wrecks and would have seen the mistake.

“We should not have done this bill during this session,” Luneau added Tuesday. “We didn’t have the time,” to address all the complexities of such a sweeping change to how the civil courts operate.

But auto insurance rates, called tort reform by supporters, isn’t the only legislation whose hurried passage created problems.

Luneau points to the measure suspending franchise taxes.

The business community has long wanted to get rid of the franchise tax. But the $378 million annual price tag prompted resistance from two Republican and two Democratic governors.

Bills make from-now-on laws therefore require the executive’s signature. Concurrent resolutions suspend specific statutes for a short time therefore don’t need a governor’s assent.

Legislators chose to go with a concurrent resolution. But budget architects among them changed the resolution by suspending part of the law, thereby lowering the hit on the state treasury to only $5.4 million for the fiscal year that begins July 1. Unfortunately, legislators don’t have legal authority to pick and choose what parts of the law to suspend, Luneau said, begging his colleagues not to approve.

The vote went ahead and House Concurrent Resolution 66 passed the Senate on a party-line vote.

Sen. Bret Allain, R-Franklin, filed do-over legislation in the special session to get around potential problems.

Then there’s House Bill 197, which creates mandatory punishment for trespassing on property deemed critical infrastructure, which are floodgates and water pumps, but also include pipelines and petrochemical plants. A coalition of environmental and community groups asked for a gubernatorial veto because the bill is aimed at tamping down protests.

The state already has a law punishing those who cross private property lines, which usually aren’t clearly marked. HB197 removes judicial discretion, meaning a judge can only consider if, not why, during sentencing.

The law likely will end up in court when, say, an elderly combat veteran who can’t make it to the next rest stop, appeals his three-year sentence for choosing a bush on the wrong side of the property line.

Legislators took all of nine days to pass the bill, leaving little time to contemplate what the wording actually means.

“In the sheer rush of the process there was not time to register what was happening much less to mobilize a coherent analysis,” said Chris Kaiser, ACLU’s advocacy director in New Orleans. “It’s a matter of very serious concern.”


Email Mark Ballard at mballard@theadvocate.com.