Monday, April 19, 2010

Guest Blogger Jennifer Wriggins: "Torts, Insurance, and the Value of Injury"

When U.S House Speaker Nancy Pelosi said recently, on passage of health care reform legislation, that “being a woman is no longer a preexisting condition,” I wondered what exactly she meant.  I believe she meant three things.  First, prior to passage of the legislation, women sometimes were turned down for individual health policies because they had had a prior Caesarean section.  Second, women who purchased individual policies had routinely been charged far more than men for the same policy (even when a woman’s policy excluded maternity care).  Third, and most relevant to this post, some companies selling individual policies had refused coverage for domestic violence injuries by considering domestic violence to be a ‘preexisting condition.’ This means that some women who have been victims of domestic violence, then, could not get health insurance coverage—first party coverage—for future domestic violence injuries.

 

    A A   A mismatch between insurance coverage and common injuries to women also characterizes the liability insurance market, which crucially affects tort law.  If a victim of domestic violence (which necessarily is tortious and usually criminal) tries to bring a tort suit against the perpetrator, she will almost certainly find that  insurance coverage is barred by the “intentional acts” exclusion or the “family member” exclusion found as a standard feature in liability policies.  Interspousal immunity may have been discarded, but private insurance has erected an equally effective barrier to recovery.  Since liability insurance indisputably drives tort law, a domestic violence victim will most often be without a remedy.

 

Domestic violence victims encounter other barriers when they file tort claims.  The statute of limitations for intentional torts is typically one or two years, shorter than that for negligence and strict liability, which typically is between two and six years.  Although the short statute of limitations barrier is applied equally to all intentional tort victims, the shorter limitations period is particularly harsh for domestic violence victims.  This is because the pattern of coercion and control that often characterizes domestic violence makes considering a tort claim near the time of injury inconceivable for many domestic violence victims.  The shorter statute of limitations for intentional torts can be traced back to a 1623 Act of Parliament, the rationale for which has been lost to obscurity.   Because the usual policy reasons for statutes of limitations--barring stale claims, avoiding the problem of fading memories, and fostering predictability--apply to both intentional torts and negligence, there is no reason for the shorter statutes of limitations.   To compound difficulties, there is a tendency to steer domestic violence claims into family court. Some states require that any tort claims be joined with a divorce, or else be barred by res judicata or collateral estoppel.  These joinder rules can put extreme pressure on domestic violence tort victims who may be unable to contemplate a tort claim until their divorce is final.

 

How cruelly ironic that tort law supposedly regards intentional torts to be more serious than negligently inflicted harms.  After all, unlike with negligence, there is no economically efficient level of  intentional torts such as assault, battery, and intentional infliction of emotional distress.  Yet, we have developed an asymmetric system of torts and insurance that provides mandatory liability insurance to compensate for injuries caused by automobile accidents, but  at the same time ensures that injuries from domestic violence are not compensated by liability insurance (and until recently, may not have even been covered by a woman’s health insurance).   The costs of car accidents do not fall solely on the victims, but very often are shifted and spread through comprehensive torts and insurance mechanisms.  Thus, injuries caused by negligent drivers have a most-favored injury status in our torts and insurance system.  Despite the widespread harm caused by domestic violence, the dominant focus of torts continues to be accidental injury

 

A century ago, Oliver Wendell  Holmes and Roscoe Pound centered the field of torts on accidental injury and declared the problem of intentional torts to be solved.  Interspousal immunity was then the law of the land and domestic violence was legal.  Sadly, in the torts realm, not that much has changed; tort suits for this pervasive harm are exceedingly rare.   The costs of domestic violence still are not shifted but fall solely on the victims (and their children).   The risks of domestic violence are not shared.  Given the widespread public attention to domestic violence, we no longer can say, as we could forty years ago, that we do not appreciate the magnitude of the harm.  Although torts scholars often talk about deterrence and compensation as being broad goals of tort law, we seem to take for granted that tort law is incapable of deterring or compensating for this widespread harm.  In my view, we have not even attempted to get the private enforcement mechanisms of torts and insurance to work in this area.  As Kenneth Abraham recently wrote, the insurance business is “remarkably creative” at insuring risks that at first seemed uninsurable.  Is it finally time to start considering injuries caused by domestic violence to be as worthy of tort compensation as injuries caused by negligent drivers? 

 

--Jennifer B. Wriggins

Sumner T. Bernstein Professor of Law and Associate Dean for Research

University of Maine School of Law

 

 

Selected References:

-Kenneth Abraham, The Liability Century:  Insurance and Tort Law from the Progressive Era to 9/11 (Harvard University Press 2008)

-Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law (NYU Press forthcoming May 2010)

-Robert Pear, ‘Women Buying Health Policies Pay a Penalty,’ New York Times, Oct. 29, 2008

-Jennifer Wriggins,  ‘Domestic Violence Torts,’ 75 So. Cal. L. Rev. 121 (2001)

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