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Tort reform and the theory of coordinating tort and insurance

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  • Gomez, Fernando
  • Penalva, Jose

Abstract

An important ingredient of tort reform is the substitution of the traditional – in Common Law – Collateral Source Rule for a system of deducting insurance payments from the tort award. In the paper we offer a comprehensive analysis of the effects of the mechanisms to coordinate tort and insurance payments on the three essential decisions involved, namely precaution, risk coverage and litigation. We undertake the analysis for the Collateral Source Rule (cumulation), benefits offset (deduction), and subrogation of insurer. In the presence of a liability system, the problem of coordination makes sense only in a world in which liability rules do not operate perfectly. Under an imperfect strict liability regime, we show that solely subrogation can induce optimal incentives for risk coverage. In addition, collateral offset dilutes injurer's incentives to take care as compared to the other two regimes. Under an imperfect negligence regime, incentives to buy coverage under the collateral source rule are lower. Under collateral benefits offset, the victim may prefer to ignore tort payments entirely, buying full insurance and leaving the injurer with no incentives for precaution. The paper also discusses the litigation decision and the apparently strong advantage in terms of administrative costs of the collateral offset rule over subrogation, and points out several factors that might undermine this presumed advantage.

Suggested Citation

  • Gomez, Fernando & Penalva, Jose, 2015. "Tort reform and the theory of coordinating tort and insurance," International Review of Law and Economics, Elsevier, vol. 43(C), pages 83-97.
    • Handle: RePEc:eee:irlaec:v:43:y:2015:i:c:p:83-97
    DOI: 10.1016/j.irle.2015.04.005
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    References listed on IDEAS

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    1. Grady, Mark F, 1988. "Common Law Control of Strategic Behavior: Railroad Sparks and the Farmer," The Journal of Legal Studies, University of Chicago Press, vol. 17(1), pages 15-42, January.
    2. Ganuza Juan-Jose & Gomez Fernando, 2006. "Caution, Children Crossing: Heterogeneity of Victim's Cost of Care and the Negligence Rule," Review of Law & Economics, De Gruyter, vol. 1(3), pages 365-397, January.
    3. Steven Shavell, 1982. "On Liability and Insurance," Bell Journal of Economics, The RAND Corporation, vol. 13(1), pages 120-132, Spring.
    4. Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 2(2), pages 279-303, Fall.
    5. W. Kip Viscusi & Patricia H. Born, 2005. "Damages Caps, Insurability, and the Performance of Medical Malpractice Insurance," Journal of Risk & Insurance, The American Risk and Insurance Association, vol. 72(1), pages 23-43, March.
    6. Patricia Born & W. Kip Viscusi & Tom Baker, 2009. "The Effects of Tort Reform on Medical Malpractice Insurers' Ultimate Losses," Journal of Risk & Insurance, The American Risk and Insurance Association, vol. 76(1), pages 197-219, March.
    7. Giuseppe Dari-Mattiacci & Gerrit De Geest, 2005. "Judgment Proofness under Four Different Precaution Technologies," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 161(1), pages 38-56, March.
    8. Shavell, Steven, 1985. "Uncertainty over Causation and the Determination of Civil Liability," Journal of Law and Economics, University of Chicago Press, vol. 28(3), pages 587-609, October.
    9. Stremitzer Alexander & Tabbach Avraham D., 2014. "The Robustness Case for Proportional Liability," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 14(1), pages 371-395, January.
    10. Kenneth S. Reinker & David Rosenberg, 2007. "Unlimited Subrogation: Improving Medical Malpractice Liability by Allowing Insurers to Take Charge," The Journal of Legal Studies, University of Chicago Press, vol. 36(S2), pages 261-289, June.
    11. Ronen Avraham & Leemore S. Dafny & Max M. Schanzenbach, 2009. "The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums," NBER Working Papers 15371, National Bureau of Economic Research, Inc.
    12. Sykes, Alan O, 2001. "Subrogation and Insolvency," The Journal of Legal Studies, University of Chicago Press, vol. 30(2), pages 383-399, Part I Ju.
    13. Daniel Carvell & Janet Currie & W. Bentley MacLeod, 2012. "Accidental death and the rule of joint and several liability," RAND Journal of Economics, RAND Corporation, vol. 43(1), pages 51-77, March.
    14. Beckner, Clinton III & Katz, Avery, 1995. "The incentive effects of litigation fee shifting when legal standards are uncertain," International Review of Law and Economics, Elsevier, vol. 15(2), pages 205-224, June.
    15. Janet Currie & W. Bentley MacLeod, 2008. "First Do No Harm? Tort Reform and Birth Outcomes," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 123(2), pages 795-830.
    16. Paul H. Rubin & Joanna M. Shepherd, 2007. "Tort Reform and Accidental Deaths," Journal of Law and Economics, University of Chicago Press, vol. 50(2), pages 221-238.
    17. Kahan, Marcel, 1989. "Causation and Incentives to Take Care under the Negligence Rule," The Journal of Legal Studies, University of Chicago Press, vol. 18(2), pages 427-447, June.
    18. Oren Bar-Gill & Omri Ben-Shahar, 2003. "The Uneasy Case for Comparative Negligence," American Law and Economics Review, American Law and Economics Association, vol. 5(2), pages 433-469, August.
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    Cited by:

    1. A. Mitchell Polinsky & Steven Shavell, 2017. "Subrogation and the Theory of Insurance When Suits Can Be Brought for Losses Suffered," NBER Working Papers 23303, National Bureau of Economic Research, Inc.

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