TortsProf Blog

Abraham on Insurance Policy Interpretation

Ken Abraham has posted to SSRN Plain Meaning, Extrinsic Evidence, and Ambiguity:  Myth and Reality in Insurance Policy Interpretation.  The abstract provides:

Insurance coverage disputes are mostly about the correct interpretation of an insurance policy provision. But three myths confuse and confound thinking about the interpretation of insurance policies. The first myth is that an unambiguous insurance policy provision -- a provision with a “plain” meaning -- carries that meaning on its face. The second myth is that, if a policy provision has a plain meaning, then under the plain-meaning “rule,” sources of meaning outside the four corners of the insurance policy -- sources “extrinsic” to the policy -- are not admissible to aid in interpreting the provision. The third myth is that ambiguous policy provisions are necessarily construed against the drafter, which in insurance is almost always the insurer. In reality, all three myths seriously oversimplify how interpretation takes place. The problem, however, is not that, in acting in ways that are inconsistent with the simplifying myths, the courts are undermining desirable rules by quietly following other, undesirable rules. On the contrary, we do not need to change the rules or practices that govern insurance policy interpretation. Rather, we need more clarity and a deeper understanding of the sophisticated, complex rules and practices that are actually in force and are actually applied in practice. This Article aims to provide both.

Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education

Duquesne University School of Law is hosting a two-day conference on artificial intelligence on April 26 & 27, 2019.  There are a number of great presentations (including one by Dionne Anthon, Anna Hemingway, and Amanda Sholtis of Widener Commonwealth).  Details are available here:  Download Duquesne AI Conference Announcement

AR: Proposed Constitutional Amendment to Allow Damages Limits

After a multi-year saga in which ballot initiatives to amend the state constitution were struck down, new bills have been filed in Arkansas.  These bills, like prior ones, would amend the state constitution to allow caps on non-economic and punitive damages.  Unlike prior bills, control over procedure in state courts is not shifted to the legislature.  KAIT8 has details.

CFP: 5th Annual Civil Procedure Workshop in Austin, Texas

The workshop is October 25 & 26, 2019.  If you wish to participate, send a two-page abstract to Bob Bone (rbone@law.utexas.edu) by March 15, 2019.  More details are here:  Download Civil Procedure Workshop 2019

Silver, Hyman & Black on the 2003 Texas Med Mal Reforms

Charles Silver, David Hyman, and Bernard Black have posted to SSRN Fictions and Facts:  Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4.  The abstract provides:

This article, written for a symposium issue of the Texas Tech Law Review, summarizes our research on the impact of Texas’ 2003 medical malpractice (“med mal”) reform. Our central findings include:

(1) there were no major changes in the frequency of med mal claims, payout per claim, total payouts, defense costs, or jury verdicts that can explain the spike in premiums for med mal liability insurance that occurred in Texas in the years before the 2003 reforms;

(2) Texas’ supply of direct patient care physicians grew steadily, at similar rates, in both the pre- and post-reform periods, despite politician’s claims that physicians fled Texas before reform and flocked back thereafter;

(3) although the damage caps adopted in Texas and other states greatly reduced the volume of malpractice litigation and payouts to patients, neither in Texas nor in other states have damage caps moderated the growth of health care spending;

(4) the savings in liability costs generated by the Texas reforms were shared between physicians and their insurers, with the former paying lower premiums and the latter collecting more premium dollars relative to dollars paid out on claims; and

(5) there is evidence that when liability rules are relaxed, hospital safety records gradually deteriorate.

MS: Premises Liability Reform Bills

Premises liability reform bills have been introduced in the Mississippi House and Senate.  In Mississippi, if a plaintiff sues for the attack of a third party on defendant's premises, the jury cannot assign a portion of fault to the third-party attacker.  These bills would allow such apportionment.  The bills would make additional changes:

Most importantly, the bills say a property owner is exempt from a lawsuit unless someone can prove they “affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party.” A woman who sues after being attacked in a dark parking lot without security would have to prove that the business knew about the potential harm and let it happen.

They also exempt property owners from liability even if they knew about the violent nature of the third party, and doesn’t allow a plaintiff to establish that there was an atmosphere of violence at a location unless there was similar violent conduct that resulted in three felony convictions on the property within the three prior years. So a nightclub where the police are called to break up fights but people aren’t charged and convicted of felonies could be exempt, for example, if someone was hurt there later.

The Mississippi Business Journal has the story.

MO: Joinder Tort Reform Bill Filed Again

For the past several years, tort reform advocates in Missouri have filed bills to restrict mass tort filings.  One of those bills has been filed again.  The Houston Herald explains:

Now a Senate bill, sponsored by Sen. Ed Emery, R-Lamar, once again seeks to change what are known as “joinder” rules in Missouri.

Currently, someone can join someone else’s lawsuit over a tort — or harm — as long as they are suing over the same facts, about the same product or service and out of the same series of transactions. Joint cases can be tried in any Missouri court as long as one of the plaintiffs has standing to sue in that court — meaning that they live there, that the incident occurred there or that the company is located there.

If Senate Bill 7 were to pass, chances for plaintiffs to join cases would shrink. Most cases could only be joined and tried in a court where all plaintiffs are allowed to sue.

Courts in St. Louis are especially exploited due to plaintiff-friendly juries.  This dispute has shades of the medical malpractice venue controversy in Pennsylvania, in which tort reform advocates attempt to keep med mal cases out of Philadelphia.

The full story is here.

Database of State Tort Law Reforms

Ronen Avraham has posted to SSRN Database of State Tort Law Reforms (6.1).  The abstract provides:

This manuscript of the DSTLR (6th) updates the DSTLR (5th) and contains the most detailed, complete and comprehensive legal dataset of the most prevalent tort reforms in the United States between 1980 and 2018. The DSTLR has been downloaded more than 2700 times and has become the standard tool in empirical research of tort reform. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ courts, as well as whether it was amended by the state legislator. Scholarship studying the empirical effects of tort reforms relies on various datasets, (tort reforms datasets and other legal compilations). Some of the datasets are created and published independently and some of them are created ad-hoc by the researchers. The usefulness of these datasets frequently suffers from various defects. They are often incompatible and do not accurately record judicial invalidation of laws. Additionally, they frequently lack reforms adopted before 1986, amendments adopted after 1986, court-based reforms, and effective dates of legislation. It is possible that some of the persisting variation across empirical studies about the effects of tort reforms might be due to the variations in legal datasets used by the studies. This dataset builds upon and improves existing data sources. It does so through a careful review of original legislation and case law to determine the exact text and effective dates. The fifth draft corrects errors that were found in the fourth draft, focuses only on the most prevalent reforms, and standardizes the descriptions of the reforms. A link to an Excel file which codes ten reforms found in DSTLR (6th) can be found here: http://www.utexas.edu/law/faculty/ravraham/dstlr.html.
It is hoped that creating one “canonized” dataset will increase our understanding of tort reform’s impacts on our lives..

Zabinski & Black: Med Mal Caps Diminish Deterrent Effect

Zenon Zabinski & Bernard Black have posted to SSRN The Deterrent Effect of Tort Law:  Evidence from Medical Malpractice Reform.  The abstract provides:

We examine whether caps on non-economic damages in medical malpractice cases affect in-hospital patient safety. We use Patient Safety Indicators (PSIs) — measures of adverse events — as proxies for safety. In difference-in-differences (DiD) analyses of five states that adopt caps during 2003-2005, we find that patient safety gradually worsens after cap adoption, relative to control states. Standard DiD inference can be unreliable with a small number of treated units. We therefore develop a randomization inference-based test for DiD statistical inference with few treated units but multiple, potentially correlated outcomes, and confirm statistical strength with this nonparametric approach.

PA: Med Mal Reform on Venue?

Yesterday's The Patriot-News (Harrisburg) featured a front-page article by David Wenner entitled "Is the deck stacked against patients?".  In 2002, during the middle of an alleged crisis in malpractice, the legislature passed a law that, among other things, added a certificate of merit requirement and restricted venue to the place of the alleged malpractice. The latter was largely aimed at keeping cases out of Philadelphia, where juries tend to be more liberal on both liability and damages.  The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure, fixing a constitutional problem with the legislation.  Since the reforms, the number of cases filed in Pennsylvania has been cut nearly in half.  A committee of the Supreme Court is now considering eliminating the rule against venue shopping.  The article contains prominent voices on both sides of the issue debating the merits.

Reiss & Diamond on Misrepresentation and Vaccines

Dorit Rubinstein Reiss & John Diamond have posted to SSRN Measles and Misrepresentation in Minnesota:  Can There be Liability for Anti Vaccine Misinformation that Causes Bodily Harm?.  The abstract provides:

Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harms, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts – appropriately – narrowed the tort to protect freedom of speech and the flow of information. This article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of the tort. In 2017, a measles outbreak in Minnesota sickened tens of people, mostly young children of the Somali community in Minneapolis, and hospitalized over twenty young children. The outbreak can be clearly linked to efforts by anti-vaccine groups to target the Somali community and convince its members that the measles, mumps, rubella vaccine (MMR) causes autism – a claim countered by extensive evidence. Using this case, the article examines under what circumstances promoters of misinformation can be held liable for negligent misrepresentation, suggesting a distinction between counseling-like situations and purely public speech, and between types of communications.

IN: No Need for Seller to Provide Product Warnings in Spanish

Plaintiff alleged an Indiana hardware store was negligent in renting to him and two co-workers an aerial lift without warnings in Spanish, given that the three spoke limited English.  Plaintiff was severely shocked when he either touched an electric line or was the victim of electrical arcing.  The Indiana Court of Appeals ruled that the hardware store did not have to provide warnings in Spanish.  Instead the court stated that, absent special circumstances, if the manufacturer provides adequate warnings and the seller passes them along, the seller has no obligation to provide additional warnings.  Unlike several other cases, the court did not focus on whether the product had been marketed to non-English speakers.  The case is here.  Thanks to Susan Raeker-Jordan for the tip.

ALI Announces 3 Projects to Conclude Restatement (Third) of Torts

Yesterday the American Law Institute announced the approval of 3 projects that will conclude the Restatement (Third) of Torts, began back in the 1990s with Products Liability.  The three projects are:

Defamation and Privacy; Reporters Lyrissa Lidsky & Robert C. Post

Remedies; Reporter Douglas Laycock

Concluding Provisions; Reporters Nora Freeman Engstrom, Mike Green, and Bill Powers; Associate Reporter Mark Hall

The press release is here:  Download Torts-Release-Final

Long on the Suicide Rule

Alex Long has posted to SSRN Abolishing the Suicide Rule.  The abstract provides:

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.

Case Update: Perry v S.N. and S.N.

For those of you teaching the Prosser, Wade, and Schwartz casebook:  This is about the time of year I cover Perry v. S.N. and S.N., a Supreme Court of Texas case from 1998.  The case focuses on negligence per se/implied right of action regarding a failure to report the alleged child sexual abuse committed by day care owners.  Those day care owners, Fran and Dan Keller, were declared "actually innocent" by the state of Texas in August 2017 and awarded $3.4 million in damages.  This isn't breaking news, but I just learned it (thanks to Shannon Smith in my 1L Torts class), and I thought some of you might not know either.  The article from Jezebel is here.

JOTWELL Torts: Sebok on Abraham & Kendrick on Affirmative Duties

At JOTWELL, Tony Sebok reviews Ken Abraham & Leslie Kendrick's There's No Such Thing as Affirmative Duty.

PA: Wrongful Death Suit Against Gun Store, Manufacturer Dismissed

In 2016, a 13-year-old and 14-year-old were left with a babysitter and three younger children in Mt. Pleasant, PA.  The 14-year-old found a gun and it discharged, killing the 13-year-old.  The deceased's parents sued:

The Gustafsons’ lawsuit alleged Springfield Armory and Saloom made and sold a 9mm semiautomatic handgun without warnings and safety features, including one that would prevent a gun from firing when the magazine is removed.

The judge dismissed the case, citing the 2005 Protection of Lawful Commerce in Arms Act.  Trib Live has the story.

Texas Torts Professor David Robertson Passes Away

David W. Robertson, the William Powers, Jr. and Kim L. Heilbrun Chair in Tort Law at the University of Texas School of Law, passed away at the end of 2018.  The University's announcement is here.  Thanks to blog founder, Bill Childs, for the information.

McBride: The Humanity of Private Law

Nicholas McBride has published The Humanity of Private Law with Hart Publishing.  The blurb provides:

The Humanity of Private Law presents a new way of thinking about English private law. Making a decisive break from earlier views of private law, which saw private law as concerned with wealth-maximisation or preserving relationships of mutual independence between its subjects, the author argues that English private law's core concern is the flourishing of its subjects.

THIS VOLUME
- presents a critique of alternative explanations of private law;
- defines and sets out the key building blocks of private law;
- sets out the vision of human flourishing (the RP) that English private law has in mind in seeking to promote its subjects' flourishing;
- shows how various features of English private law are fine-tuned to ensure that its subjects enjoy a flourishing existence, according to the vision of human flourishing provided by the RP;
- explains how other features of English private law are designed to preserve private law's legitimacy while it pursues its core concern of promoting human flourishing;
- defends the view of English private law presented here against arguments that it does not adequately fit the rules and doctrines of private law, or that it is implausible to think that English private law is concerned with promoting human flourishing.

A follow-up volume will question whether the RP is correct as an account of what human flourishing involves, and consider what private law would look like if it sought to give effect to a more authentic vision of human flourishing.

The Humanity of Private Law is essential reading for students, academics and judges who are interested in understanding private law in common law jurisdictions, and for anyone interested in the nature and significance of human flourishing.

MA: 12-Year-Old Safely Pulls Car Over After Grandfather Suffers Stroke on Interstate

A 12-year-old boy took the wheel when his grandfather suffered a stroke driving on Interstate 495 near Boston.  The boy successfully steered off the road and called 911.  Emergency responders arrived and administered a "stroke-busting drug."  Grandfather and grandson are both doing well.  There are a number of interesting torts angles here:  sudden physical illness, the applicability of the child standard and adult activities exception, and the emergency doctrine.  This could easily be incorporated into an exam.  The Boston Globe has the story.