[Congressional Record Volume 144, Number 141 (Friday, October 9, 1998)]
[Senate]
[Pages S12220-S12221]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         AUTO CHOICE REFORM ACT

 Mr. SHELBY. Mr. President, while I know that the Senate will 
not take up consideration of S. 625, The Auto Choice Reform Act of 
1997, during the 105th Congress, I wanted to put my views regarding 
this legislation on the record.
  S. 625 creates a federally mandated two-tracked automobile insurance 
system under which car owners would have the option to enroll in a 
``personal protection system'' or the traditional ``tort maintenance 
system.'' Those who select the personal protection system are promised 
``prompt recovery'' of economic loss, regardless of fault. However, 
they forfeit the right to recover damages for pain and suffering while 
being exempted from liability for such damages themselves.
  I have some strong concerns regarding this type of so-called 
``reform'' legislation.
  First and foremost, I believe that the argument that ``Auto Choice'' 
will reduce insurance premiums is unfounded. Over the last few years, 
the numerous states that have adopted no-fault insurance programs 
similar to those in this legislation have had the highest premiums in 
the country. In fact, in 1995, 6 out of the 10 states with the highest 
average liability premiums were no-fault systems. In light of the 
failure of auto choice to lower premium costs, I cannot understand why 
we are seeking to put such a system into place across the country.
  I am also greatly troubled by the fact that this bill involves an 
attempt by the federal government to impose a one-size-fits-all 
solution on the states. While I recognize that some reforms are 
necessary, I do not believe that federalizing our tort system, is, or 
should be the solution.
  For more than 200 years, states have had the power to develop and 
refine their own tort systems. Supreme Court Justice Powell wisely 
observed: ``Our 50 states have developed a complicated and effective 
system of tort laws and where there have been problems, the states have 
acted to fix those problems.'' Mr. President, federally directed reform 
efforts such as those contained in S. 625 detract from the states' 
abilities to fashion their own initiatives and deny them the 
opportunity to provide solutions to meet their own particularized 
needs.
  Furthermore, I am troubled by the fact that this bill allows people 
to waive their right to recover for noneconomic damages. Mr. President, 
such a provision could lead to a lifetime of pain and suffering for 
those who suffer massive injury in a car accident. In fact, that 
possibility is so high, no state, not one, allows its citizens to 
choose to waive their right of recovery for pain and suffering.
  Consider the fact that in all likelihood people would ``choose'' to 
waive these rights when they are sitting in their den, filling out 
their insurance forms. Mr. President, I would argue that the timing of 
such a choice precludes the possibility of informed consent on the part 
of the consumer. No one can predict the future, people cannot say 
whether they will need to pursue recovery for some accident. I predict 
that, many of those who so choose will one day find that they guessed 
wrong. Mr. President, checking off a box on a form could forever cost 
someone the ability to seek damages for loss of a limb, blindness, loss 
of a child or permanent disfigurement. This legislation does not 
provide a choice, it opens people up to take an unnecessary chance.
  This legislation contains another flaw in that it does not fully 
protect the rights of those who choose traditional tort protection. 
Someone who chooses tort law coverage can only seek complete access to 
the courts if the at-fault driver has also selected traditional tort 
law coverage. Thus, a victim in an accident has to hope to be lucky 
enough that the person that hits him has selected the ``right'' type of 
coverage. Again, what appear to be

[[Page S12221]]

``choices'' in this bill are in effect risky chances.
  Mr. President, if we revisit this issue in the future, I believe we 
must closely consider these factors. Ultimately, we must also note that 
we cannot advance reform without taking our federal system into 
consideration. What is right in Alabama, may not be proper for 
California, or North Dakota or Connecticut. States must play the 
preeminent role in setting the course for tort law reform. Common sense 
demands it, our legal traditions demand it, and our Constitution 
demands it.

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