Wednesday, May 19, 2010
Ellen Pryor (SMU) has posted to SSRN several papers, including some older works. First up is her 1998 piece (co-authored with Will Pryor) Concurrent Mediation of Liability and Insurance Coverage Disputes. The abstract provides:
Tort litigation has yet to produce a satisfactory solution to a recurring and difficult problem: the presence of an undecided insurance coverage question when the underlying liability case is still pending. The possible litigation options have serious drawbacks. Resolving the coverage case while the tort suit is pending can in some contexts undermine the insured’s defense in the tort suit. Yet leaving the coverage claim unresolved throughout the underlying suit raises concerns of structural collusion and inefficient levels of indemnity insurance. This article explores the use of what we call “concurrent mediation” - mediation of both liability and coverage - as an alternative to these adjudicatory options. By working through a series of paradigmatic coverage-liability disputes, we examine whether, when, and how concurrent mediation can be effectively employed. Our aim is not to discuss mediation versus litigation as a general matter, but to illuminate the incentives, strategies, and doctrinal issues that can affect the feasibility and desirability of concurrent mediation.
Next is her 2002 article After the Judgment:
Tort judgments - whether entered after settlement or a trial - have traditionally been viewed as marking the end of tort law’s role in the plaintiff’s life. Yet developments over the past 25 years have rendered this view obsolete. Until several decades ago, tort judgments almost always resulted in a lump sum payment reflecting a jury’s findings or the parties’ assessment of the amount of damages incurred by the time of settlement as well as provable future damages. Aside from minors (for whom monies were deposited into an interest-bearing account until the minor reached adulthood and received the full sum), the non-taxable tort award was the plaintiff’s to spend or invest as he or she chose. Now, however, payment methods other than the lump sum are common for both minors and adults. Legislation in many states allows defendants to request an order for periodic payment. In settlement contexts, parties often make use of structured settlements - a package consisting of a present payment and a structured series of future payments. In addition, settlement trusts are more common now. These and other changes mean that the hand of tort law often extends beyond the judgment and affects the timing of, structure of, and decisionmaking about tort payments. This Article explains this shift and the reasons for it, and identifies and explores some of the most important questions it raises. These questions include the efficiency and justice of mandated and voluntary payout methods in various categories of cases; the proper approach for plaintiffs with diminished (or allegedly diminished) decisionmaking capacity; and the role of the lawyer as to both competent and diminished capacity clients.
And, finally, we have her 2008 piece Part of the Whole: Tort Law's Compensatory Failures through a Wider Lens:
The injuries that give rise to tort cases usually implicate not just tort law but other strands of our society's compensatory fabric--Medicare and Medicaid, Social Security disability, workers' compensation, private medical insurance, and private disability insurance. This Article analyzes some of the intersections that especially warrant the attention of policymakers and analysts. One topic is how tort law interacts and coordinates with other payment strands in the compensation fabric. The two major legal standards bearing on coordination are the collateral source doctrine and the doctrine of subrogation. Both of these have changed substantially in recent years, leaving a coordination picture that is both more unstable and more complex than it was twenty years ago. In some states, the doctrines are incoherent or indefensible. The Article also discusses two emerging and unsettled issues relating to the calculation of pecuniary damages: how managed care reimbursement should be taken into account in a tort suit, and the proper role of annuity evidence in assessing future pecuniary loss.