Senate Republican Chief Andy McElhany today offered a warning to the business community of Colorado. The Democrat-led General Assembly is rewriting public policy in favor of lawsuit-eager trial lawyers, he said.

“We’ve got less than four weeks left in the legislative session, and I’m beginning to see lawyers in every nook and cranny,” said McElhany, a veteran lawmaker from Colorado Springs. “If (Governor) Bill Ritter doesn’t do something to rein in his party, Colorado will be headed for a litigation overload.”

McElhany pointed to six bills – two of which he labeled “humdingers” – that make the state more lawsuit-prone and less business-friendly.

“The governor has already signed two of these bills, raising the caps for pain and suffering awards and allowing third-party caretakers to be given hundreds of thousands of dollars worth of damages in a lump-sum payment,” said McElhany. “Let’s hope he stops there, before the trial lawyers get too rich off of this legislature.”

“But there are two humdingers racing to his desk right now,” he said. “The eyes of the entire business community are on Ritter, to see what he does with HB-1338 and SB-248.”

House Bill 1338 would open up the homebuilding industry to a variety of lawsuits that they are currently able to avoid through agreements with home buyers. During floor debate on the bill, Sen. Josh Penry, R-Fruita, said, “There are only two things that bill will do. It will push the cost of buying a house even higher, and it will make a couple of trial lawyers very rich.”

Critics of HB 1338 point out it has the same goal as an unsuccessful 2004 ballot measure that was primarily financed by millionaire Denver lawyer Scott Sullan, who sues homebuilders nationwide. Sullan also testified in favor of HB 1338 in committee hearings.

Meanwhile, Senate Bill 248, by Senate President Joan Fitz-Gerald, D-Coal Creek Canyon, opens up a major insurer, COPIC (Colorado Physicians’ Insurance Company), to endless harassment from competitors and plaintiff’s attorneys. COPIC is a non-profit trust established and run by doctors in order to control medical malpractice premiums, according to their president, Steve Rubin, M.D., to “aggressively defend good medicine” in court.

After floor debate on SB-248, Sen. Steve Ward, R-Littleton, said, “This is about allowing trial lawyers to harass COPIC. It’s the patients that will suffer when doctors are forced to leave the state or pay outrageous insurance premiums.”

The two signed bills that McElhany referred to are Senate Bill 129, by Senate President Pro tem Peter Groff, D-Denver, and Senate Bill 66, by Senate Majority Leader Ken Gordon, also a Democrat from Denver.

SB-129 raises the state’s limits on non-economic damages in a variety of different lawsuits by several hundred thousand dollars. SB-66 allows economic damages in certain situations to be paid out in a single lump-sum payment. Currently, those payments are paid in annual installments in situations where the judge has reason to believe that a caretaker should not be trusted with large amounts of money.

The final two bills that McElhany highlighted were Senate Bill 117 by Sen. Bob Bacon, D-Fort Collins, and House Bill 1247 by Sen. Ron Tupa, D-Boulder. Both bills tilt the legal playing field in favor of employees in lawsuits against employers. Current law sets a “loser-pays” system where the victor in a lawsuit has his or her attorneys fees paid for by the losing party; the effect is to discourage lawsuits from going forward without merit.

Both SB-117 and HB-1247 alter that system so that only employers can be on the hook for the other party’s legal fees. Employees would face no such incentive against frivolous lawsuits.

“The loser-pays system is fair, and stops frivolous claims from being filed,” said Sen. Tom Wiens, R-Castle Rock, during debate on the measures. “Replacing it with a one-sided penalty not only encourages those frivolous claims, but it’s also just fundamentally unfair. We’re putting a bias against business into the legal code.”

SB-117 has been approved by the legislature and is on its way to the governor’s desk for action. HB-1247 is in a conference committee, waiting for the Senate and House to reconcile their differences over the bill.

McElhany also pointed out that the Senate's three highest ranking Democrats each carried one of the bills on the list. “It seems like carrying favor with the trial lawyers is a high priority across the aisle this year.”