LSN: Tort Litigation最新文献

{"title":"La acción directa y el derecho de defensa del asegurado (The Direct Redress Against the Insurer and the Insured’ Right of Defense)","authors":"Diana Ariza Sánchez","doi":"10.18601/16923960.v18n1.02","DOIUrl":"https://doi.org/10.18601/16923960.v18n1.02","url":null,"abstract":"<b>Spanish Abstract:</b> No hay duda que dentro de la normativa colombiana, la consagración de la acción directa en contra de las aseguradoras constituye un mecanismo práctico y garantista, que les facilita a las víctimas de eventos constitutivos de responsabilidad civil un acceso menos tortuoso a la realización del derecho a la reparación integral. No obstante, el ejercicio de dicha acción acarrea una serie de problemáticas procesales y sustanciales de cara al asegurado (civilmente responsable), cuya resolución dista de ser pacífica. Particularmente, dichas dificultades se sintetizan en la necesidad o no de integrar en el contradictorio al asegurado, como quiera que su responsabilidad civil será un punto insoslayable de controversia en el litigio entablado en contra de la aseguradora. El presente artículo pretende explorar el marco jurídico que permite comprender correctamente la anotada dificultad, así como proponer una respuesta al mismo, desde la perspectiva del derecho colombiano.<br><br><b>English Abstract:</b> There is no doubt that the legal standing that the Colombian law establish for the victim of a tort, in order to file a legal claim against the insurer of civil liability, constitutes a practical and beneficial mechanism, which facilitates such victims a less tortuous access to their right to a full compensation. However, such legal standing takes to a series of substantial and procedural issues regarding the insured (tortfeasor), which answer is far from being pacific in the Colombian legal systems. Particularly, such problems can be synthetized in the need or not of calling the insured to the judicial proceedings, due to the fact that his civil liability will be an unavoidable legal issue in the litigation initiated against the insurer. The present article pretends to explore the legal frame that allows to correctly comprehend the said difficulty, as to propose an answer to it, from the Colombian law perspective.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121209727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Maybe There's No Bias in the Selection of Disputes for Litigation","authors":"Eric A. Helland, Daniel Klerman, Yoon-Ho Alex Lee","doi":"10.2139/ssrn.2994624","DOIUrl":"https://doi.org/10.2139/ssrn.2994624","url":null,"abstract":"New York “closing statement” data provide unique insight into settlement and selection. The distributions of settlements and adjudicated damages are remarkably similar, and the average settlement is very close to the average judgment. One interpretation is that selection effects may be small or non-existent. Because existing litigation models all predict selection bias, we develop a simple, no-selection-bias model that is consistent with the data. Nevertheless, we show that the data can also be explained by generalized versions of screening, signaling, and Priest-Klein models.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133551386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Screening Plaintiffs and Selecting Defendants in Medical Malpractice Litigation: Evidence from Illinois and Indiana","authors":"Mohammad H. Rahmati, D. Hyman, Bernard Black, Jing Liu, C. Silver","doi":"10.1111/jels.12173","DOIUrl":"https://doi.org/10.1111/jels.12173","url":null,"abstract":"Many physicians and tort reform advocates believe that most medical malpractice (“med mal”) claims are “frivolous”; they often rely on reports that only about 20% of claims result in a payout. Many physicians and reform advocates also believe that plaintiffs lawyers often sue every health provider with even a remote a connection to the patient. Plaintiffs’ lawyers insist that they screen med mal cases carefully, and when they bring a claim, are selective in whom they sue. Can these perspectives be harmonized? We study this question using databases of every insured med mal claim closed in Illinois during 2000-2010 and in Indiana during 1980-2015; and semi-structured interviews with six plaintiffs’ lawyers. We innovate by using defense costs to assess whether the plaintiffs’ lawyers take a case seriously. We treat cases with under $5k in defense spending as “non-serious” cases, unless they have a payout over $25k. We find evidence that many “cases” are non-serious – they never involved filed lawsuits or if they did, the suits were soon dropped – indicating that screening is an ongoing process that does not end when a case is accepted. Observed success rates are sensitive to whether one counts “claims” (each defendant is a separate claim) or “cases” (one plaintiff versus one or more defendants), includes both pro se and represented cases, and includes all versus only serious cases. If we analyze cases instead of claims and limit to serious, represented cases, we find much higher success rates (43% in Illinois; 44% in Indiana). Success rates are higher still in cases brought solely against institutional defendants (58% in Illinois; 68% in Indiana). Plaintiffs’ lawyers are also selective in the number of defendants they sue. In med mal cases involving only physicians and/or institutions, the mean number of defendants is 1.5 in Illinois and 1.8 in Indiana. \u0000Online Appendix can be found here: \u0000http://ssrn.com/abstract=3010344.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"119748832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Reflexive Approach to Accident Law Reform","authors":"Erik S. Knutsen","doi":"10.5040/9781782257912.ch-003","DOIUrl":"https://doi.org/10.5040/9781782257912.ch-003","url":null,"abstract":"The Canadian accident law system has been a microcosm of social experiments in legal reform. The chief concerns motivating any accident law system reform efforts in Canada have been the perennial issues that prompt accident law reform in any country: litigation cost containment, insurance cost containment, processing delay, and concerns about fraud. Many Canadian initiatives to address personal injury compensation processes have mirrored the recent Irish reform approaches, and with varying successes and failures. There are two important aspects about the comparative value in examining what both countries have separately done to address the issue of compensation for personal injury. The first lies in learning how different legal cultures, different national identities, and different political and industry pressure points lead to remarkably similar institutional creations. The second lies in how each country’s failures and gains realised from these reform efforts may also track each other in parallel fashion. What does this mean?For Canada and for Ireland, it means that for realising gains in creating a fair, efficient accident law system, assessment of any reform efforts must proceed in a holistic and systemic fashion by keeping three distinct though not separate legal structures in mind: tort and liability law, insurance law and the law and behaviour surrounding civil litigation. Each of these structures must, in turn, somehow be tempered by a fourth overarching structure: justice. This chapter examines how accident law reform can most wisely proceed by adopting a reflexive approach to ensure reform accountability that considers the effects of any reform on liability law, insurance law, civil litigation, and justice concerns. It uses two common accident law reform mechanisms as examples of this approach: the damages limiter and the public dispute resolution mediary.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131495210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fractional Standing","authors":"Daniel E. Rauch","doi":"10.2139/ssrn.3885669","DOIUrl":"https://doi.org/10.2139/ssrn.3885669","url":null,"abstract":"Generations of commentators have examined (and critiqued) standing doctrine. The fiercest clash has turned on the question of “injury”—specifically, what type of grievance is sufficient to merit court consideration. Defining “injury” is no easy task, and in recent years, substantial inquiry has focused on just what harms should qualify an individual as “injured.” Subjective fear? Lost aesthetic enjoyment? Increased risk of death? Increased risk of genetic crop contamination? Long-term hazards of climate change? And so on. Surely, these debates are of great importance. Yet up to this point, judges and scholars have almost all assumed an “injury binary”: either an individual has received a hurt sufficient to qualify for standing, or she has not. This Note rejects this binary, and instead argues for a third path: “fractional injury.” A fractional injury is one that, if manifest in a lone individual, would be insufficient to grant standing. Should multiple individuals experience this injury and band together as a group to demand relief, however, then their collective grievance would be sufficient to merit standing. The upshot of this approach would be a class of injuries for which “fractional standing” – the standing of the united fractions—would be recognized. This Note offers the first systematic exploration—and defense—of fractional stand-ing. After briefly reviewing existing standing doctrine, the Note proceeds to illuminate the current “standing binary” and identify courts and commentators who have already gestured toward a notion of “fractional standing.” Here, I highlight several real-world cases, such as the D.C. Circuit’s prominent ruling in Natural Resources Defense Council (NRDC) v. E.P.A and the Supreme Court’s decision in Clapper v. Amnesty International. Ultimately, though, my aim is less descriptive than normative, and so the balance of the Note argues that, irrespective of their current status, fractional injuries should be recognized going forward. Specifically, I argue that fractional standing would vindicate the core purposes of standing doctrine’s injury requirement—ensuring effective legal advocacy, dispensing constitutional justice, marshaling scarce resources, and preserving separate powers. I also assess and respond to several important objections.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"194 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121123219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justifying Exceptions to Proof of Causation in Tort Law","authors":"S. Steel","doi":"10.1111/1468-2230.12142","DOIUrl":"https://doi.org/10.1111/1468-2230.12142","url":null,"abstract":"This article defends a set of exceptions to the general rule in tort law that a claimant must prove that a particular defendant's wrongful conduct was a cause of its injury on the balance of probabilities in order to be entitled to compensatory damages in respect of that injury. The basic rationale for each exception is that it provides a means of enforcing the defendant's secondary moral duty to its victim. The article further demonstrates that the acceptance of this set of exceptions does not undermine the general rule.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121966287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Local Authority Liability for Flooding: Where Should Loss Fall?","authors":"S. Brennan","doi":"10.26686/VUWLR.V46I1.4933","DOIUrl":"https://doi.org/10.26686/VUWLR.V46I1.4933","url":null,"abstract":"Flooding is New Zealand’s most frequent natural hazard the cost of which is outdone only by the recent Canterbury earthquakes. Local authorities are the bodies primarily tasked with protecting communities against flooding through a range of measures including physical works such as stopbanks. This essay explores the extent to which a local authority can be liable in tort where those physical works fail, causing damage. Direct liability and non-delegable duties are discussed, the latter addressing whether a local authority can nevertheless be liable having outsourced the construction of flood works to independent contractors. Additionally, whether local authorities should be liable for such damage or whether individual property owners ought to protect their own interests through insurance is discussed.This essay recommends that property owners should purchase private insurance, but that local authorities should remain liable at least for their own negligence.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116364580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Overcoming Under-Compensation and Under-Deterrence in Intentional Tort Cases: Are Statutory Multiple Damages the Best Remedy?","authors":"Stephen J. Shapiro","doi":"10.2139/ssrn.2501376","DOIUrl":"https://doi.org/10.2139/ssrn.2501376","url":null,"abstract":"This Article advocates that states' statutes make greater and more systematic use of multiple damages by extending them to a much broader range of intentional, wrongful conduct. Part II of this Article will explain why extra-compensatory relief is called for when tortious conduct is intentional or malicious. Part III will compare punitive damages, attorney fees, and treble or other multiple damages as possible sources of additional relief. Part IV will focus on multiple damages. The Article will examine the range of existing state statutes and discuss why and how those statutes might be extended to a broader range of wrongful behavior.","PeriodicalId":320322,"journal":{"name":"LSN: Tort Litigation","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131579076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}