What this all means for you

What this all means for you

ASCA Executive Director Kevin Gilbride provides some analysis on the outcome of the general election means for the snow industry and the impact on the association's legislative efforts.

November 10, 2016

With the 2016 general election behind us, it is the ASCA’s job to look at the results not from a personal perspective, but for what it means to snow and ice management companies. With this understanding, we will continue to our successful legislative initiatives.

The past four years, the ASCA and its members have made our annual trip to the nation’s capital to lobby on behalf of the industry in a quest to get the Lawsuit Abuse Reduction Act passed. This bill, introduced in the past two sessions of Congress, would have a tremendous impact on our industry and business.

The Lawsuit Abuse Reduction Act would change Rule 11 of the Federal Rules of Civil Procedure, making it mandatory for federal judges to impose sanctions on plaintiff’s and their attorneys who are found to have filed a frivolous lawsuit. The rules had read this way until 1993, when Congress changed them by substituting the world “mandatory” to “digressionary.”

For those who have been around for a while, this is the exact reason you don’t remember droves of slip-and-fall claims in the 70’s and 80’s. This rule change made it easier to file a lawsuit with absolutely no penalty. It also allows a suit to be filed prior to the attorney doing any research on a case. They simply file the case, see what they can get quickly, and they simply drop the claim if they are going to lose. No harm, no foul – to them and their client. However, there is plenty of harm to the company they filed the suit against. I don’t have to explain to you the impact this has had on insurance rates.

If enacted, this bill would have a couple of impacts on the snow industry:
•    A reduction in overall lawsuits filed. Sanctions would likely include the Plaintiff and their Attorney would be responsible for the defense attorney’s fees. Simply put, if someone has skin in the game, they likely will not file a fake claim. Opponents argue that it would clog up the court system. That is simply not true. It didn’t in the 70’s and 80’s and it won’t now.
•    A lawsuit that is felt to be frivolous can easily be move from your state court system to Federal court with a few simply criteria. One is the dollar amount of the suit (it needs to seek a minimum of $60,000 in damages) and you must be able to show diversity. A good example of that is that would be the property owner is headquartered in a different state.
•    More importantly, once the Federal Rules of Civil procedures change, each state generally adopts those changes in a short time frame. As they do this, point number two becomes a non-issue.

This bill only covers frivolous lawsuits. Legitimate claims would proceed as they have in the past. However, the people who have crawled onto properties after getting injured elsewhere -- found on video cameras to have never even fallen -- and simply filed a claim; or climbed over snow piles in perfectly clear lots, or wiped snow from their windshield and then fallen, would all be subject to a judge’s decision on their frivolity. Yes, those are all real claims.

In DC, we have met with numerous Congress people and Senators over the past few years. This is a partisan bill, meaning it is largely supported by one party. In this case, it is largely supported by Republicans, which is likely due to the large support the other side of the aisle receives from the plaintiff’s bar. In our meetings and based on the numbers alone, it will pass the US House when introduced and heard. It has in the last two sessions. Remember, once a session ends with this term, any bill not passed is killed and the process starts over. This session ends with this term.

It has gone to the Senate where it has sat in the Judiciary Committee awaiting Democratic support. Without Democratic support in the Senate, the sponsors were fearful -- if not certain -- the bill would not pass. So, they never moved it out of committee. In the Senate, you only need 51 votes to get a bill passed. Most often this is the last stop for legislation prior to going to the President The Senate prides itself in being the most deliberative body. By rule, a bill cannot be voted on in the Senate if one member wants to continue to deliberate on it, which is known as a filibuster. The only way around this is by a cloture vote. If a cloture vote is called, 60 votes are need for the bill to pass. This session was made of 54 Republicans, 44 Democrats, and 2 independents (both leaning Democrat). With only 54 votes, in the event of a filibuster, the legislation would not have passed.

While the Senate’s makeup changed slightly in this election (51-46-2 ... No Louisiana candidate reached 50% of the vote. They will have a run-off election Dec.10th between the top two candidates of a 20 person field that was on the ballot Tuesday.  It is predicted that republicans expect to win this seat.) a clear message was sent. People believe Washington is broken and they want action. Maybe more importantly, people showed they will insist upon that by voting, which is more important.

In the 2018 election, there are 33 Senate seats up for grabs. Twenty-five of the seats include both Democrat and the Independents. While party lines mean a lot to our representatives, getting re-elected means even more.

For the Lawsuit Abuse Reduction Act to pass, we simply need 51 votes, which I believe we possess. If a filibuster is attempted, the senators leading the filibuster, or perhaps everyone facing reelection will fear voter repercussions. This of course reduces the chances of a filibuster occurring. If this does occur, then we only need eight of the 25 to support the bill. Once again, a more likely scenario with the voter repercussions on their minds.   

With President-elect Donald Trump pledging to be more business friendly and impose less regulation on business, a bill like this would be an easy one for him to sign, if it gets to him.

The ASCA and our Government Affairs Committee is laying out our action plans for when the new congressional session starts on Jan. 21st. We encourage the professional snow and ice management community to support our efforts and to stay tuned. We will be back in Washington next year once the bill has been introduced to deliver our message on how desperately our industry needs this legislation.

However, we will need your support. This support comes in three ways:
1. Join the ASCA. There is strength in numbers.
2. Keep an eye open for ASCA updates. We will keep you in the loop on action steps we need to take along the way
3. Come to Washington with us next year and talk to your representatives. You can make a difference.

Here is list of the 25 Senators up for reelection in 2018 that we need to influence:

Wisconsin Senator Tammy Baldwin (D)

Ohio Senator Sherrod Brown (D)

Washington Senator Maria Cantwell (D)

Maryland Senator Ben Cardin (D)

Pennsylvania Senator Bob Casey Jr. (D)

Delaware Senator Tom Carper (D)

Indiana Senator Joe Donnelly (D)

California Senator Dianne Feinstein (D)

New York Senator Kirsten Gillibrand (D)

New Mexico Senator Martin Heinrich (D)

North Dakota Senator Heidi Heitkamp (D)

Hawaii Senator Mazie Hirono (D)

Virginia Senator Tim Kaine (D)

Maine Senator Angus King (I)

Minnesota Senator Amy Klobuchar (DFL)

West Virginia Senator Joe Manchin (D)

Missouri Senator Claire McCaskill (D)

New Jersey Senator Bob Menendez (D)

Connecticut Senator Chris Murphy (D)

Florida Senator Bill Nelson (D)

Vermont Senator Bernie Sanders (I)

Michigan Senator Debbie Stabenow (D)

Montana Senator Jon Tester (D)

Massachusetts Senator Elizabeth Warren (D)

Rhode Island Senator Sheldon Whitehouse(D)

We have succeeded in getting legislation passed at the state level. With your support, will succeed at the federal level, as well.