In a stunning award of damages that should force hotels to rethink guest privacy, a Davidson County (Tenn.) Circuit Court jury on Monday awarded Fox Sports broadcaster Erin Andrews $55 million in damages. The damages stem from Andrews’s successful lawsuit against two companies, West End Hotel Partners and Windsor Capital. These two companies operate the Nashville Marriott at Vanderbilt University. Michael David Barrett, who in 2009 pleaded guilty to interstate stalking of Andrews and sentenced to 27 months in prison, was also a co-defendant in the case. Barrett had stalked and videotaped Andrews on several occasions and in different cities. He duped a Nashville Marriott employee into confirming Andrews’s reservation and his request to book a room next to her was granted. Barrett then used a peephole to surreptitiously videotape her while she changed. He later placed his videos online and millions watched.
Andrews, who has spent significant time and money in trying to remove the videos from the Internet, originally sued Marriott International as well. In January 2016, however, Marriott International was dismissed from the lawsuit by establishing that it was not legally responsible. The operators of the Nashville Marriott, in contrast, were deemed negligent—behaving in an unreasonable way—in how they protected Andrews’s privacy. Keep in mind, under an area of law known as hotel premises liability, hotels and inns are expected to make reasonable efforts in guaranteeing the privacy of guests. Here, the operators of the Nashville Marriott failed to do so.
Analyzing the $55 million judgment
As a starting point, it is worth noting that juries are not given “comparable” amounts of awards when gauging an appropriate amount. That said, $55 million in damages represents an amount of money that far exceeds what is normally available in a civil lawsuit where the victim, like Andrews, suffered no injuries that would be considered “physical.” Indeed, Andrews was not scarred, maimed or disabled by the invasion of privacy, and she suffered no bodily injury. She has also continued to thrive in her broadcasting career—Richard Deitsch wrote in 2012, Fox Sports won a bidding war against ESPN for her services. While it may seem off putting to hold Andrews’s success against her, it is nonetheless fair to note that her injuries have not been so detrimental so as to interfere with her impressive career trajectory.
Most plaintiffs in civil lawsuits don’t fare nearly as well as Andrews. People seriously injured in car crashes, for example, often receive less than $1 million in damages, even if they require surgery and rehabilitation. As another illustration of what successful plaintiffs receive in civil cases, the Department of Justice finds that victims of medical malpractice receive on average $400,000. Then consider families of people who die due to the negligence of others. Similarly, they tend to receive only a fraction of $55 million. An article published by the North Carolina Law Review in 2010 found that the average award for the wrongful death of an adult female is $3 million.
To further illustrate how sizable the damages are for Andrews, consider another case from Tennessee involving two men, John O. Jackson and Scott Summerville, who were in a car that was hit by an out-of-control driver in 2011. Jackson, who was 82 years old, was killed while Summerville suffered catastrophic and permanent injuries. A court awarded the family of Jackson a little over $1 million and a little under $2 million to Summerville, who was 57 years old. To be fair, the damages awarded in this case and the damages the data referenced above are impacted by “tort reforms,” where state laws are enacted to limit what is recoverable in a case.
None of this is to say that Andrews was not seriously harmed by Barrett and by extension the negligence of the hotel operators. Andrews was humiliated and degraded by knowing that the public watched videos of her naked. Her testimony during the trial indicated that she remains emotionally scarred. She continues to be taunted by members of the public. Andrews also testified that she now feels afraid when traveling alone. She also felt demeaned when ESPN asked her to provide an interview in which she made clear that the unauthorized videos were not to attract fanfare. There is no question Andrews has been deeply victimized and harmed. Whether the value of the harm is $55 million is far more debatable.
The jury’s award of $55 million may also reflect disgust with the legal strategy of the two hotel operators. As discussed in a previous SI.com article, one of their tactics was to claim that Andrews benefited from the publicity associated with the videos. Her moving testimony not only debunked such a theory, it suggested the companies’ attorneys were grossly insensitive.
Will Andrews ever be paid $55 million?
Andrews’s capacity to collect the $55 million in damages will soon come into focus. First consider that 51% of her damages—about $28 million—are assigned to the 54-year-old Barrett. It stands to reason that Barrett is what’s known in law as “judgment proof,” meaning someone who is ordered by a court to pay damages but lacks the financial wherewithal to do so. Before his incarceration in 2010, Barrett was an insurance executive, which presumably paid him a good salary. But after his release in 2012, it’s not clear if he has been employed. It’s a safe bet to assume he hasn’t amassed anything near $28 million. In fact, in 2010, Barrett’s attorney, David Willingham, said Barrett had lost entire life savings. If Andrews receives any money from Barrett over the rest of their lives, it will likely be a very small amount.
In contrast, West End Hotel Partners and Windsor Capital are likely of far more considerable means. As private companies their financial statements are not publicly available, but they are in the lucrative hotel industry. Whether they have the capacity to pay a judgment of approximately $27 million is uncertain. It is also not clear to what extent insurance may pay for some of these damages.
If the companies and/or their insurance providers are unable to pay $27 million, the companies might explore the possibility of declaring bankruptcy. Although declaring bankruptcy would not discharge these companies of the responsibility to pay Andrews, it could significantly slow how quickly she is paid. It might also prevent her from collecting from those companies’ owners. Bankruptcy law is very complex and bankruptcy cases often take years to litigate. A court in such a case is tasked with determining the order in which creditors are paid. It is unclear where Andrews would be on that order.
A separate complicating factor is that this case involves co-defendants. In law, when co-defendants are found liable the default rule is that the co-defendants who can pay are obligated to pay the share of those co-defendants who lack the financial resources to do so. This idea is captured in the idea that co-defendants are “joint and severally liable” to each other.
Tennessee law and the Tennessee Supreme Court have limited joint and several liability in recent years. It is generally not available unless the co-defendants acted in concert. Barrett, who engineered a plot to deceive the hotel into staying next to Andrews, does not appear to have acted in concert with the hotel companies. Andrews, however, filed her lawsuit before some of the changes to Tennessee joint and several liability law. This suggests there is a possibility that the two hotel companies may be obligated to pay all or some of Barrett’s $28 million. Watch for this issue to be a source of future court proceedings.
Expect the hotel companies to appeal the jury award and hope that a judge reduces it on the grounds that the jury acted with passion rather than thought. An appeal could also involve the Tennessee Civil Justice Act, which is the state's "tort reform" law. Although the Act currently has an unsettled legal status, it limits damages to $750,000 in certain cases. Andrews, however, filed the original version of her lawsuit before the Act went into effect in 2011, which indicates the Act should not limit the jury's award for Andrews. Regardless of how the appeals process plays out, it could take many months, if not years, to do so. During this time, it is possible that Andrews and the hotel companies could negotiate an out-of-court settlement to end the litigation. In such a settlement, Andrews would agree to take less money in exchange for the guarantee of payment. Regardless of the litigation's ultimate outcome, it is clear that the hotel industry needs to take guest security a lot more seriously in the future.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.