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Erin Andrews case is a lesson in comparative negligence

Sportscaster and television host Erin Andrews wipes tears as the verdict is read Monday, March 7, in Nashville, Tenn. A jury has awarded Andrews $55 million in her lawsuit against a stalker who bought a hotel room next to her and secretly recorded a nude video, finding that the hotel companies and the stalker shared in the blame. (Photo: Mark Humphrey/AP Photo)
Sportscaster and television host Erin Andrews wipes tears as the verdict is read Monday, March 7, in Nashville, Tenn. A jury has awarded Andrews $55 million in her lawsuit against a stalker who bought a hotel room next to her and secretly recorded a nude video, finding that the hotel companies and the stalker shared in the blame. (Photo: Mark Humphrey/AP Photo)

A jury has awarded Erin Andrews $55 million in her lawsuit stemming from nude videos secretly taken by Michael Barrett, an insurance executive from suburban Chicago.

There were at least three known instances of Barrett secretly recording Andrews through peepholes bored in hotel walls after he made arrangements to occupy rooms next to Andrews. According to the Huffington Post, there may have been as many as 16 victims to Barrett’s deviant secret videos. 

In 2011, Barrett was sentenced to 2½ years in prison. At that time, Andrews had expressed displeasure with the sentence but had also indicated that she had no intention of filing a civil lawsuit. Apparently something changed, as a lawsuit against Barrett and Marriott ensued, asking for $75 million. Marriott International was dismissed from the case after establishing that it was not legally responsible.

However, the operators of the Nashville Marriott, in contrast, were deemed negligent in how they protected Andrews’ privacy. There is an area of law called hotel premises liability under which hotels are expected to make reasonable efforts in guaranteeing the privacy of guests. Given the negligence of the operators, it became clear that there was the potential to place some negligence on the hotel, which would be the most viable means for recovery.  

The case was ultimately presented to a jury, and this week Andrews was awarded $55 million. The jury apportioned liability with 51% assessed against the perpetrator, Michael Barrett, and 49% against the two companies, West End Hotel Partners and Windsor Capital Group, which owned and operated the Nashville Marriott at Vanderbilt University, where the secret videos were taken in 2008.   

The negligence against Barrett is clear. There is no doubt that he committed the crime of interstate stalking for which he was convicted and sent to prison. The more challenging negligence argument is against the hotel, which appears to have failed to take proper precautions of keeping Andrews’ personal information private and having appropriate onsite security. 

Related: On the record: 6 Strategies to manage claims litigation

In a report by The Washington Post, Andrews alleges that Marriott workers helped facilitate Barrett’s videotaping by first revealing that she was a guest at the Nashville hotel, then disclosing her room number, and finally by agreeing to Barrett’s request to be placed in the room next door to the broadcaster. If there is sufficient evidence to prove this, as a jury seemed to believe there was, then clearly there is negligence against the hotel operator. The bigger question is to what degree.

My book, "Re-Adjusted: 20 Essential Rules to Take Your Claims Organization from Ordinary to Extraordinary," discusses the importance of negligence in various situations. The reality is that claims organizations often miss the mark as only around 3% of claims are assessed with comparative negligence. Jury research indicates that juries assess comparative negligence in more than half of all claims. In the Andrews case they did just that: Apportioned liability.  

When factoring in fault, it is important to understand not only the role of the primary tortfeasor, but also other indicators such as proximate cause, or in this case, who set the ball in motion. Had the hotel employees not revealed private information, it would have been much more difficult for the primary tortfeasor to obtain his secret videos.  

Whether the apportionment is right is highly subjective. As a longtime adjuster, my sense is that Barrett should have been hit with more and the hotel operator less, but certainly each has some responsibility. The next issue to resolve is the $55 million verdict which, on the surface, appears to be quite excessive for someone who did not suffer any physical injuries, especially when considering the average verdict for wrongful death of a female in the United States is just over $3 million dollars.

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Erin Andrews leaves court after verdict

Sportscaster and television host Erin Andrews, left, leaves the courtroom with attorney Scott Carr, center, after the verdict was read in her lawsuit Monday, March 7, in Nashville, Tenn. A jury awarded Andrews $55 million in her lawsuit against a stalker who bought a hotel room next to her and secretly recorded a nude video, finding that the hotel companies and the stalker shared in the blame. (Photo: Mark Humphrey/AP Photo)

There is no question that Andrews suffered mental anguish from this situation and is entitled to compensation. The reality is that she will likely collect nothing from Barrett. At the time of his conviction he had lost his job and, according to his lawyer, his life savings. In the world of claims, we refer to such people as judgment-proof since they likely don’t have the assets to pay even a portion of this verdict. Andrews’ best hope is on the owners of the hotel. Based upon a $55 million verdict, the 49% liability translates into their owing about $27 million. 

However, this may prove to be a long and arduous path. As private companies, the financial statements of West End Hotel Partners and Windsor capital are not publicly available. While they are in a very lucrative industry, it is unknown if they have the means to pay this judgment. There is most likely some insurance money available, but the extent is unknown. There is also the possibility that these companies may file bankruptcy. While those proceedings generally won’t discharge the monies owed, they could put up a serious roadblock to how quickly she gets paid, and at the end of the day, it is up to the bankruptcy court to determine which creditors get paid, and in what order. 

Another big hurdle is the venue. Tennessee courts, including the state's Supreme Court, have limited joint and several liability. If there were joint and several liability, any of the parties could potentially be liable for the entire verdict. Without joint and several, the parties are responsible for their own share, in this case 49%, or $27 million dollars.  

It is almost certain that the hotel companies will appeal the jury award on the grounds that it is excessive. While there is no doubt that Andrews suffered emotionally, there is also no doubt that her television career has and continues to thrive. This may have a detrimental impact on the extent of the mental anguish that she is claiming.

Another roadblock will be the Tennessee Civil Justice Act that limits lawsuits filed after 2011 to $750,000 in many situations. While there is significant litigation that has left this tort reform unsettled, it will likely be fodder for additional settlement discussions that are certain to take place during the appeals process. 

Whether Andrews holds out, or accepts a lesser sum, remains to be seen. This is a matter that the public has been following and an opportunity to share with those outside of our industry how the insurance and litigation process work, with both lessons in comparative negligence, as well as the litigation and appeals process.

Christopher Tidball is a casualty claims consultant, industry veteran and author of multiple books, including "Re-Adjusted: 20 Essential Rules to Take Your Claims Organization From Ordinary to Extraordinary."

Related: 12 keys to rein in bodily injury severities

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