Monday, January 12, 2015
Kyle Logue (Michigan) has posted to SSRN Encouraging Insurers to Regulate: The Role (if Any) for Tort Law. The abstract provides:
Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to giving special premium discounts to insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law discourages insurers from engaging in the direct regulation of their insureds’ behavior. Under longstanding tort principles, if an insurer “undertakes” to provide serious risk-reduction services to an insured, the insurer can be found to have a duty of reasonable care and, should that duty be breached, held liable for any harms caused to third parties. This application of tort principles to insurance companies could be contributing to the moral hazard problem often associated with insurance — the tendency of insurance to cause risk to increase rather than decrease. This Article explores this problem and analyzes a number of ways to encourage insurers to regulate — from insurer-specific Good Samaritan statutes (which we might call a “carrot”) to the expansion of tort principles to create an affirmative duty on the part of insurers to regulate (which would definitely be a “stick”). What combination of carrots and sticks produces the optimal insurer incentives to regulate their insureds’ behavior? That is the question the Article addresses.
Friday, January 9, 2015
Thursday, January 8, 2015
There are a number of terrific practitioner blogs all over the country. Some of my favorites:
Maryland: Maryland Injury Lawyer Blog (Ron Miller)
Pennsylvania: Tort Talk (Daniel Cummins)
Litigation and Trial (Max Kennerly)
Drug & Device Law (Jim Beck)
Tennessee: Day on Torts (John Day)
D.C.: Center for Class Action Fairness (Ted Frank)
Texas: Austin Personal Injury Blog (Perlmutter & Schuelke)
New York seems to have an especially healthy crop:
New York Personal Injury Law Blog (Eric Turkewitz)
New York Injury Cases Blog (John Hochfelder)
The New York Medical Malpractice Blog (Andy Barovick)
Now Rheingold, Valet, Rheingold, McCartney & Giuffra have launched a blog with squibs from all New York products cases (state and federal) from 2002 on. The link is here.
Tuesday, January 6, 2015
Monday, January 5, 2015
Wisconsin law allows only spouses, minor children, or the parents of minor children to sue for wrongful death in med mal cases. The restriction prohibits adult children who lose their parents or parents who lose college-age children from suing for medical negligence. Bills to eliminate the restriction have been repeatedly introduced and defeated. This year State Senator Harris Dodd plans to introduce a narrower bill that would allow parents of children younger than 27 to file suit for medical malpractice. The Milwaukee Wisconsin Journal Sentinel has the story.
Saturday, January 3, 2015
The AALS Torts & Compensation Systems Section has its panel at the Annual Meeting tomorrow from 4:00 until 5:45 in Maryland Suite C, Lobby Level, at the Marriott Wardman Park Hotel. Andy Klein led the Section this year and set up a great panel:
Tort Law and a Healthier Society
Andrew R. Klein, Indiana University Robert H. McKinney School of Law
Michelle Mello, Stanford Law School
Dorit Reiss, University of California, Hastings College of the Law
Diana Winters, Indiana University Robert H. McKinney School of Law
Section on Torts and Compensation Systems William L. Prosser Award Winner:
Michael Green, Wake Forest University School of Law
The section will present a program on leading issues at the intersection of tort and health law. Professor Mello will discuss medical malpractice alternatives for hospitals. Professor Reiss will discuss liability issues related to vaccine-preventable diseases. Professor Winters will discuss food safety impact litigation. The section will also honor the winner of its annual William L. Prosser Award for outstanding contribution in scholarship, teaching, and service related to tort law.
Business meeting at program conclusion.
I regret I can't attend, but I extend my warm congratulations to Mike Green.
Friday, January 2, 2015
Symeon Symeonides (Willamette) has posted to SSRN Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey. The abstract provides:
This is the Twenty-Eighth Annual Survey of American choice-of-law cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws and it is intended as a service to fellow teachers of conflicts law, both in and outside the United States.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2014, and posted on Westlaw by midnight, December 31, 2014. Of the 1,204 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the highlights of the year:
One U.S. Supreme Court decision dealing with general jurisdiction, the second in three years, after a thirty-year silence; Seven cases deciding whether the Alien Tort Statute applies to actions filed by foreign plaintiffs against American defendants alleged to have aided and abetted the commission of international law violations outside the United States; a case involving a cross-border shooting of a Mexican boy by a U.S. Border Patrol agent; and a case arising from the imprisonment of U.S. contractor Alan Gross in Cuba;
Fifty-six court rulings striking down as unconstitutional the prohibition of same-sex marriages in 26 states, one ruling upholding the prohibition in four states, and a Texas case recognizing a California judgment that declared both male partners in a same-sex marriage to be the parents of a child conceived through artificial insemination and carried to term by a surrogate mother;
One more xenophobic statute, the eighth in four years, banning the use of certain foreign laws;
Several tort cases involving conduct-regulation conflicts and applying the law of the state of the tort, rather than the parties’ common domicile;
One state supreme court case joining the minority of courts that have rejected the doctrine of severability of choice-of-forum clauses, and several cases involving the interplay of those clauses and choice-of-law clauses;
A California Supreme Court case holding that the Federal Arbitration Act (FAA) did not preempt a California statute that prohibited waivers of “representative actions” filed by employees against employers for violating the state’s labor laws, and two cases disagreeing on whether contracting parties may avoid FAA preemption by choosing the “non-federal” part of a state’s law;
A New York case recognizing a foreign judgment, even though New York had no jurisdiction over the debtor or his assets; a Pennsylvania case giving full faith and credit to the New York judgment; and a D.C. case refusing to do so — and not only because New York did not have jurisdiction; and
Many other interesting conflicts cases involving products liability, other torts, contracts with and without choice-of-law clauses, insurance contracts, statutes of limitation, marriages by proxy, divorce, marital property, and successions.
Wednesday, December 31, 2014
Tuesday, December 30, 2014
For the eighth time since 2008, Louisiana-based LAMMICO is returning a percentage of premiums to its customers. The physician-owned company will return five percent of premiums during the first quarter of 2015. The Daily Journal has details.
Monday, December 29, 2014
A panel created by the General Assembly has recommended a compensation fund for babies suffering neurological injuries at birth. Virginia and Florida set up similar funds years ago. The Baltimore Sun has the story.
Saturday, December 27, 2014
Wednesday, December 24, 2014
Rick Rinaldi (EiC of the Widener Law Journal) has posted his Note, Fracturing the Keystone: Why Fracking in Pennsylvania Should Be Considered an Abnormally Dangerous Activity, to SSRN. The abstract provides:
During the early morning hours of December 15, 2007, Thelma and Richard Payne, an elderly couple, were startled awake when an explosion in their basement dislodged their Ohio home from its foundation. Their homestead for more than a half-century was completely destroyed due to nearby hydraulic fracturing (“fracking”) operations. In a similar instance in 2010, high levels of methane were discovered in a Pennsylvania family’s basement. The discovery came after Michael Leighton found his drinking water bubbling over the top of his 100-foot well and twenty small geysers on his property spewing water mixed with methane into nearby streams. Again the likely culprit was a nearby fracking operation. Such events epitomize just some of the risks associated with fracking, which have led many concerned citizens to vehemently voice their opposition to the practice in the Marcellus Shale region. Analyzing those risks, this comment argues that unconventional horizontal fracking should be considered an "abnormally dangerous" activity in Pennsylvania because such a classification is both legally appropriate and paramount in mitigating the future harms of fracking. Part II(A) describes the geological characteristics of the Marcellus shale deposit, including its potential gas reserves and the technological challenges of extracting it. Part II(B) provides a detailed description of the recently pioneered fracking procedure and the environmental risks it presents. Part III discusses the current regulatory framework that applies to fracking in Pennsylvania and discusses the failures of that framework to sufficiently protect the public. Part IV traces the common law development of strict liability, applies the current rule to fracking, and discusses the negative results of alternatively analyzing fracking under a negligence regime. Part V concludes that fracking will become increasingly safer through the imposition of strict liability, which will mitigate the negative environmental impacts of the industry, and in time, allow for expanding gas production through safer methods.
Tuesday, December 23, 2014
Many jurisdictions have fewer civil than criminal jurors. On Friday, Illinois Governor Pat Quinn signed legislation to reduce civil juries from 12 to 6, effective June 1, 2015. In cases filed prior to June 1, the parties are entitled to a jury of 12. Public Act 098-132 is here. (Via The National Law Review)
Monday, December 22, 2014
Claudia Landeo (Alberta-Department of Economics) has posted to SSRN Law and Economics and Tort Law: Theory and Experiments. The abstract provides:
In tort litigation, delayed settlement or impasse imposes high costs on the parties and society. Litigation institutions might influence social welfare by affecting the likelihood of out-of-court settlement and the potential injurers' investment in product safety. An appropriate design of litigation institutions and tort reform requires good knowledge of the factors that affect litigants' behavior. The combination of theoretical and experimental law and economics, which represents the cornerstone of the application of the scientific method, might enhance our understanding of the effects of litigation institutions and tort reform on settlement and deterrence.
We evaluate the interaction between theoretical and experimental law and economics in the study of tort litigation institutions. Special attention is devoted to liability, litigation and tort reform institutions, and behavioral factors that might affect impasse. Our analysis suggests a productive interaction between theoretical and experimental law and economics. In particular, findings from experimental economics work on litigation institutions indicate the presence and robustness of cognitive biases, and provide evidence of the effects of litigants' biased beliefs on the likelihood of impasse. These findings have motivated the construction of new economic models of litigation involving more empirically-relevant assumptions about litigants' beliefs. As a result of the application of the scientific method, the contributions of law and economics to the design of legal institutions might be strengthened.
Friday, December 19, 2014
Sean Williams (Texas) has posted to SSRN Dead Children: Tort Law and Investments in Child Safety. The abstract provides:
Should tort law treat cases of dead children differently than cases of dead adults? A diverse set of research — including bioethics studies, contingent valuation, and analyses of consumer behavior — all suggest that the answer is Yes. That research coalesces around a single pattern: people are willing to invest about twice as many resources in protecting children as they are in protecting adults, even when each are equally vulnerable to the relevant risk. This pattern extends to non-fatal risks as well, even those as mundane as the risk of catching a cold. These investment patterns suggest that, as a prima facie matter, a deterrence-oriented tort system should impose standards of care that are about twice as stringent for children as for adults, and award tort damages that are about twice as high for child victims. These insights — generated by focusing solely on deterrence — remain robust when we instead view tort law through the lenses of corrective justice or civil recourse. Each of these individual justice accounts of tort law is consistent with child exceptionalism, although some require fewer caveats than others. Such child exceptionalism is also consistent with plausible and attractive moral theories despite the fact that it could be framed as a deviation from formal equality. In addition to laying out the empirical and normative cases for heightened standards of care and heightened damages, the Article offers a set of tools that courts and legislatures can use to move tort law toward these goals.
Thursday, December 18, 2014
Back in July, I posted about a case in front of the Pennsylvania Supreme Court over whether the statutory component of bad faith is assignable. The issue, specifically, was whether the statutory bad faith remedies, sounding in tort, are, like the common law bad faith contract action, assignable. On Monday, the court answered in the affirmative. The court stated:
We recognize that the policy considerations (which are ably developed in the
arguments of the litigants and their amici) are mixed in character. On balance,
however, we find that consideration of the occasion and necessity for Section 8371, the
object to be attained, the previous legal landscape, as well as the consequences of our
interpretation, favor Wolfe’s position. Centrally, we simply do not believe the General
Assembly contemplated that the supplementation of the redress available for bad faith
on the part of insurance carriers in relation to their insureds would result either in a
curtailment of assignments of pre-existing causes of action in connection with
settlements or the splitting of actions. Certainly, if we are incorrect in our assessment in
this regard, the General Assembly may seek to implement curative measures pertaining
to future cases, subject to constitutional limitations.
Widener alumnus Scott Cooper co-authored an amicus brief, cited in the opinion, on behalf of the Pennsylvania Association for Justice.
Wednesday, December 17, 2014
Like many jurisdictions, Indiana has a tort claims act. Pursuant to Indiana's version, the maximum total payout to victims for any single event is $5M. In 2011, a stage at the Indiana State Fair collapsed; 62 victims have been paid damages from the incident. One of the injured, 10-years-old at the time, opted to sue the state. On Monday, an appellate court heard arguments that the cap is unconstitutional. In a filing, plaintiff's lawyers stated:
“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law."
WISHTV.com has the story.
Tuesday, December 16, 2014
The Harvard Law School Program on Private Law is seeking applicants for a post-doctoral fellowship. Information is here: Download PostdoctoralFellowshipinPrivateLawCallforApps
Monday, December 15, 2014
A California appellate court has concluded there is no duty on the part of a premises owner to warn of take-home asbestos dangers. The court was concerned about "limitless liability." A dissenter argued the Rowland factors establish a duty. Legal Newsline has the story.
Wednesday, December 10, 2014
Deborah Brake (Pittsburgh) has posted to SSRN Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation. The abstract provides:
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.