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PART II: The Insurance Rationale for Tort Liability in Practice
- Temple University Press
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II The Insurance Rationale for Tort Liability in Practice Copyrighted Material Copyrighted Material [44.211.239.181] Project MUSE (2024-03-29 12:08 GMT) Adequate consideration of the insurance rationale for tort liability , especially as it relates to questions of tort reform, cannot take place in a scholarly vacuum. Much depends on whether and how the insurance rationale is used by courts and legislatures in the actual process of setting liability rules. The contemporary criticism of tort doctrine that constitutes the linchpin for tort reform is not merely theoretical. It rests on the assertion that the insurance rationale is overused in practice, especially by the courts, and that this overuse is harmful to the health of the accident compensation system. Thus, it is essential to take a fairly careful look at decisional and statutory law in order to assess the validity of this and other claims that the scholars have made about the ways in which tort doctrine and insurance interact. Such a review fails to elicit a very clear picture, because even in modem times legal decision makers all too rarely disclose openly the policy grounds for their decisions. But the outlines that do emerge hardly suggest an insurance rationale rampant and in danger of running amok. To the contrary, although courts and legislatures have over time become more comfortable and familiar with the idea that insurance considerations should influence judgments about tort law, their embrace of the insurance rationale has always been and continues to be relatively tentative and uncertain, if not downright reluctant. Even in recent years insurance has seldom achieved the kind of dominant, driving force as a decisional factor that one might imagine from reading the scholarly literature. When it figures in decisions at all, it is usually as one of several factors given relatively equal weight-a matter calling for balances and tradeoffs against other policy concerns rather than an objective for headlong pursuit. Throughout, courts have remained willing to subordinate insurance to other policy factors , especially safety, if they could be persuaded that there was a true conflict between them. They have also remained sensitive to cost concerns, and to the impact of tort liability on the activities of defendants. Where courts (and sometimes legislatures) have embraced the insurance rationale, they usually have done so in a cautious, qualified fashion. With those limitations in mind, however, it is still fair to suggest that trends in practice reflect a profile similar to, though more subdued than, the Copyrighted Material 59 60 - PART TWO trends of scholarship. The role of insurance in practice follows a course that is roughly parallel to its role in scholarship, although there is a decided lag between theory and practice during most periods. Thus, the scholarly ideas of one generation make their way into the courts and legislatures of either that generation or the next, but they do so gradually and imperfectly. They often bear practical fruit a decade or two, sometimes even longer, after the scholarly seeds have been planted. The first chapter of this part traces the historical development of the insurance rationale in tort practice, providing an overview of the ways courts and legislatures have used insurance to shape liability rules. The second examines in greater detail some cases that exemplify the range of doctrinal developments that have been influenced by insurance considerations. The third summarizes the principal themes of the insurance rationale in practice and attempts to discern where the courts and legislatures have placed us on tort doctrine's decision tree. Copyrighted Material ...