The Foundations and Enactment of Michigan Automobile No-Fault Insurance

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1 The Foundations and Enactment of Michigan Automobile No-Fault Insurance JAMES T. MELLON DAVID A. KOWALSKI INTRODUCTION As has been said of the legal system: [T]he system is not perfect, but we do the best we can. 1 The law of torts is no exception to this observation. While it aims to compensate those injured due to the acts of another, tort law has, at times, been the subject of criticism. In particular, some of the traditional common-law rules for example, contributory negligence have been criticized as particularly unfair. 2 In certain situations, state legislatures have felt compelled to act in order to alleviate what they thought was a harsh system of justice. As the Industrial Revolution marched into the early twentieth century, workers compensation systems began to appear, which would supplant the tort system in the realm of work-related injuries and diseases. In the late twentieth century, the debate over tort reform was also a hot-button issue in Michigan and resulted in, among other changes, the general repudiation of joint and several liability. 3 When it comes to automobile accidents, serious efforts at reform can be traced back to the 1920s when a group of academics came together to study compensation for automobile accidents. 4 Principal, Mellon Pries, P.C., B.A., M.A., J.D., 1967, 1970, 1973, University of Detroit; LL.M. 2003, Wayne State University School of Law, Adjunct Professor, University of Detroit Mercy School of Law. Mr. Mellon has been conferred the designation Charter Property Casualty Underwriter (CPCU) from the American Institute for Property & Liability Underwriters and the designation Associate in Risk management (ARM) from the Insurance Institute of America. Associate, Mellon Pries, P.C., B.A., 2004 University of Michigan; J.D. 2007, University of Detroit Mercy School of Law. 1. Charles Reinhart Co. v. Winiemko, 513 N.W.2d 713 (Mich. 1994) (Boyle, J., concurring). 2. Kirby v. Larson, 256 N.W.2d 400, 416 (Mich. 1977) ( [I]t may well be that the pattern of excused and nonexcused contributory negligence may amount to substantial unfairness. ); Murphy v. Muskegon County, 413 N.W.2d 73, 76 (Mich. Ct. App. 1987) ( The comparative negligence doctrine was implemented as a means of avoiding the inequities and unfairness of the contributory negligence doctrine. ). 3. See MICH. COMP. LAWS ANN (West 2010). 4. COMM. TO STUDY COMP. FOR AUTO. ACCIDENTS, COLUMBIA UNIV. COUNCIL FOR RESEARCH IN THE SOC. SCIS., REPORT BY THE COMMITTEE TO STUDY COMPENSATION FOR AUTOMOBILE ACCIDENTS 1 (1932) [hereinafter COMM. REPORT].

2 654 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 Prior to 1973 in Michigan, actions seeking damages for injuries resulting from motor vehicle related accidents proceeded, for the most part, pursuant to common-law accident principles. 5 Those common-law accident principles are embodied in the law of negligence and its familiar elements: (1) legal duty owed to a plaintiff; (2) breach of that duty by the defendant; (3) damage to the plaintiff; and (4) defendant s breach of duty proximately causing the damage to the plaintiff. 6 As motor vehicle injury actions sounded in the common law of negligence, they were also subject to common-law defenses, such as contributory negligence. 7 In fact, Michigan would not fully abolish contributory negligence replacing it with the doctrine of comparative fault until 1979, over five years after the adoption of the No-Fault Act. 8 The contributory negligence doctrine could create harsh results. For example, the Michigan Supreme Court declared that: Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame[,] and, thus, no recovery. 9 With such rules in place, an injured party seeking compensation due to an automobile accident faced significant hurdles to recovery. Liability insurance was available, but, as the name implies, it was insurance based on liability, i.e., fault. Many people chose not to carry insurance for a variety of reasons, including that they could escape all liability if not at fault, and that insurance was not compulsory. As colorfully put in a 1990s sitcom, when a character portrayed by actor, Will Smith, was in a car accident and was asked about his insurance, he replied, Yo fault. I ain t got none and I don t need none cause it s your fault. 10 The goal of such liability insurance is to shield a financially responsible motorist from losses in the event of an accident. 11 While a liability insurer might intercede in a dispute and attempt to work out a settlement, it will only do so if there is a possibility that an injured party can successfully litigate a claim. 12 In other words, if the insured would not be liable, then there is little incentive on the part of the insurer to aid in settlement negotiations, save for avoiding the costs of litigation. Indeed, the fault- 5. Kreiner v. Fischer, 683 N.W.2d 611, (Mich. 2004), overruled by McCormick v. Carrier, No , 2010 WL (Mich. filed July 31, 2010). 6. Roulo v. Auto. Club of Mich., 192 N.W.2d 237, (Mich. 1971). 7. See, e.g., Yackso v. Bokulich, 53 N.W.2d 310, 311 (Mich. 1952). Contributory negligence bars all recovery if there is any negligence on the part of the plaintiff. Kirby, 256 N.W.2d at Placek v. City of Sterling Heights, 275 N.W.2d 511, 513 (Mich. 1979). 9. Yackso, 53 N.W.2d at 314 (quoting Stuck v. Tice, 289 N.W. 225, 226 (Mich. 1939)). 10. The Fresh Prince of Bel-Air: Cased Up (NBC television broadcast Nov. 11, 1991). 11. COMM. REPORT, supra note 4, at Id. at 202.

3 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 655 based tort system is, by its nature, adversarial, and insurance affected by the liability of the insured did little to alleviate the problems. Many felt a change was needed. In Michigan, that change would take the form of Public Act 294 of 1972, popularly known as the No-Fault Act and codified as sections of the Michigan Compiled Laws. No-fault insurance (hereinafter referred to as No-Fault ) was a product of the late twentieth century, but the genesis for No-Fault can be traced back decades before. I. EARLY CALLS FOR CHANGE In the late nineteenth and early twentieth centuries, with the industrial revolution coming of age, England, the birthplace of the common law, began a series of reforms in the realm of workers compensation. 13 In the employment arena, the traditional fault-based tort system was replaced with a system which provided compensation for pure accidents occurring at work without consideration of fault. 14 Michigan joined in this reform effort by first adopting a workers compensation scheme in Early commentators were keenly aware that the rule of liability adopted by the statute (liability for damage irrespective of fault) is in direct conflict with the fundamental rule of the modern common law as to the ordinary requisites of a tort. 16 Such was the case with the irreconcilable conflict between the traditional system and the new statutory system; some advanced the contention that if the statutory system is correct, then the entire common-law tort system is wrong in principle and ought to be repudiated. 17 Interestingly, though many would bemoan any suggestions of a nonfault-based system as drastic departures from the traditions of tort, [t]he common law has often imposed liability without fault and this was the prevailing rule for accidental harms until quite recently. The law of negligence as we know it today is a child of the nineteenth century. 18 Most early common-law liability was based on the writ of trespass, which 13. See Jeremiah Smith, Sequel to Workmen s Compensation Acts, 27 HARV. L. REV. 235, 235 n.2 (1914). 14. See id. at See Cain v. Waste Mgmt., Inc., 697 N.W.2d 130, 135 (Mich. 2005); 1912 Mich. Pub. Acts 1. As first enacted, workers compensation was elective for private sector employers and would not be made mandatory until Beauchamp v. Dow Chem. Co., 398 N.W.2d 882, 885 (Mich. 1986), superseded by statute, 1987 Mich. Pub. Acts 28, as recognized in Temple v. H.J. Heinz Co., 446 N.W.2d 869 (Mich. Ct. App. 1989). 16. Smith, supra note 13, at Id. at ROBERT H. JOOST, AUTOMOBILE INSURANCE AND NO-FAULT LAW, at 2 7 (2d ed. 2002) (quoting Fleming James, Analysis of the Origin and Development of the Negligence Actions, in THE ORIGIN AND DEVELOPMENT OF THE NEGLIGENCE ACTION 35, 35 (United States of America Department of Transportation 1970)).

4 656 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 can be considered a type of strict liability. 19 Automobile usage happened to coincide with the time at which the doctrine of negligence liability was at its apex, but, at first, produced few waves as the number of drivers was small, the maximum speeds were low, and those who could afford to drive could also afford to pay any damages arising from an accident. 20 As automobiles became more affordable and widely produced, it was inevitable that automobile accidents would become more frequent occurrences. The inadequacies of the traditional tort system as applied to automobile accidents were noticed as early as 1919 and succinctly summarized by Mr. Weld A. Rollins in a Massachusetts Bar publication: At present, in an effort to redress the wrongs of one who suffers from an accident, the law allows a suit to be brought. This means that the plaintiff must locate witnesses and prove negligence. Both may be difficult or impossible. A law case drags along in court for a year or two, the expenses of lawyers, and of the physicians who testify as to the damages, are large and meantime the victim very likely lacks money when he most needs it. If he is poor, the lawyer has to advance the necessary expenses and he will never get them back, or get anything for himself, unless he settles or wins the case. As it is always uncertain whether he will win, he is under temptation to settle, even for an amount less than the plaintiff ought to have. The refinements that have grown up in the law as to negligence and contributory negligence are hard to understand; they afford grounds for appeals and new trials, and bear only a slight relation to the needs of the situation. In case a judgment is obtained, it may be impossible to collect it, because many people and corporations who run automobiles are financially irresponsible. 21 Automobile insurance, as it existed at the time, was characterized as a license[] to do harm with impunity since the payment by an insured of a trivial sum would protect him from liability so as to grant a privilege[] to be reckless. 22 The contributory-negligence bar was further perceived to be very inequitable when it came to automobile accidents. According to a 1916 Massachusetts Highway Commission Report, in automobile accidents resulting in a pedestrian fatality, the pedestrian was found to be at least partially at fault roughly 80% of the time. 23 Thus, in the vast majority of the cases, there would have been no recovery. A remedy was needed to 19. Id. at Id. at Weld A. Rollins, A Proposal to Extend the Compensation Principle to Accidents in the Streets, 4 MASS. L.Q. 392, (1918). 22. Id. at Id. at 394 ( Of 265 pedestrians killed, the commission thought that the pedestrian was wholly at fault in 162 instances and partly at fault in 43 more. ).

5 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 657 [p]rovide an easier, quicker, surer and less expensive way for an injured person to get what little compensation money will give him. 24 One solution was to draw upon the recently enacted workers compensation laws: create an indemnity company that would pay compensation without the delays and difficulties of a law suit and without regard to fault. 25 In Minnesota, Ernest C. Carman was of like mind with Mr. Rollins of Massachusetts. Carman proposed a system of compulsory insurance as a prerequisite to using an automobile on a public highway. 26 This insurance was to take a standard form, requiring an insurer to pay all damages to the person or property of anyone not himself willfully negligent, resulting from accidents occurring during the operation or use of the motor vehicle therein specified upon the highways with certain exceptions. 27 In Carman s opinion, negligence, unless it be willful, should be expressly eliminated from the compensation of automobile accident victims. 28 The exception for willful negligence came from the fact that a willfully negligent act cannot be considered an accident. Unlike later advocates of such proposals, however, Carman would give the injured party the ability to elect to seek his compensation under this new motor vehicle act or at common law. 29 Carman thought this election was necessary due to the right to a trial by jury. 30 At least the compulsory nature of Carman s proposal resonated with some legislators. In 1925, Massachusetts enacted a mandatory liability insurance law, which became effective in Between 1906 and 1925, automobile fatalities increased exponentially. By 1924, there were more than 117 automobile accident fatalities per one million people, while in 1906 the rate was just 4.36 per one million people an almost twenty-seven fold increase. 32 The law of personal injury was [the] only answer to the cry of those who are daily run down, injured and killed upon the streets and provided the doubtful possibility of recovery at the end of several years delay. 33 After detailing the reasons why the system then in use was inefficient and unworkable when it came to automobile accidents, Marx came to conclusions similar to Rollins and Carman. One simple solution was to make personal injury insurance mandatory, a proposal Marx saw as non-radical, as vehicles already were 24. Id. at Id. 26. Ernest C. Carman, Is a Motor Vehicle Accident Compensation Act Advisable?, 4 MINN. L. REV. 1, 2 (1919). 27. Id. at Id. at Id. at Id. 31. COMM. REPORT, supra note 4, at Robert S. Marx, Compulsory Compensation Insurance, 25 COLUM. L. REV. 164, (1925). 33. Id. at 168.

6 658 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 subject to compulsory licensing. 34 The compulsory insurance would protect the vehicle owner from ordinary negligence actions, taking fault out of the compensation equation. 35 In the 1920s, a scholarly group formed to study how best to compensate those injured in automobile accidents; its report was presented in The committee was formed due to the large and increasing number of automobile accidents and the seriousness of the injuries resulting from such accidents. 37 In the roughly twenty years which preceded the study, deaths due to automobile accidents surged seven times over, and the fatality rate increased more than 500%. 38 By 1930, automobile accidents were the single greatest cause of accidental death in the United States. 39 In addition to the human tragedy, automobile accidents were taking their toll on the court system as well. The litigation from automobile accidents was a considerable factor in the congestion of judicial business. 40 In fact, in New York County, during an eighteen-month period from 1928 to 1930, a full 30% of all new cases on the court s docket resulted from automobile accidents. 41 Things were no better in Philadelphia where 50% of all cases tried to juries involved motor vehicle accidents. 42 In Detroit, automobile accident cases accounted for 34% of all civil trials. 43 In fact, in large cities in general, one-fifth to one-half or more of all civil trials were automobile accident trials, which remained pending from one to three or more years. 44 While automobile insurance was available at this time, outside of Massachusetts where insurance was compulsory, a case study found that roughly one-third of the cases involved an uninsured motorist. 45 When an uninsured motorist was involved, 74% of those injured received no payment (even in temporary disability cases where the losses are not as high as in cases involving permanent disability or fatality); in comparison, just 14% remained uncompensated in the case of an insured motorist. 46 In cases involving permanent disability, the number of those who received no payment or payment insufficient to cover the loss jumped to a staggering 34. Id. at Id. at COMM. REPORT, supra note Id. at Id. at Id. 40. Id. at Id. at Id. 43. Id. at 43 n Id. at Id. at Id. at 78.

7 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT % when an uninsured motorist was involved; with an insured motorist, only 37% remained undercompensated. 47 In cases involving a fatality and an uninsured motorist, 85% received nothing, and 8% received insufficient compensation, compared to just 23% who were either not compensated or undercompensated when an insured motorist was involved. 48 A further problem that arose was the delay in receipt of compensation by the injured parties. As to uninsured motorists, payments were so infrequent that the factor of delay does not call for discussion. 49 When a motorist was insured, and the disability was only temporary, 58% were paid within two months; however, 12% remained uncompensated after more than six months. Fifteen percent received nothing. 50 Further, as the severity of the injury increased, so too did the delay after six months, half of the cases were unsettled, and most of these remained unsettled after a full year. 51 By the time the committee s report was issued in 1932, the problems with automobile accident compensation were already recognized by the States, with eighteen enacting some sort of financial responsibility laws, requiring evidence of ability to pay compensation if the insured was found to be wholly or partly at fault for an accident of a specified severity. 52 However, the laws did not have quite the impact hoped for, as the committee found that estimates revealed that increases in the number of insured drivers, due to the financial responsibility laws, are proportionally slight. 53 The proposed solution to the automobile-accident problem came from a familiar source: workers compensation laws. The scheme would create liability without regard to fault, a concept that the committee found to be not a new doctrine in the United States and that had, in fact, been established in several other countries with respect to automobile accidents already. 54 The scheme was not a general repudiation of traditional tortbased principles of fault. Rather, like workers compensation, it was imperative to discard a system which worked very badly and to try in its place a new system which gave promise of success. 55 There was an analogy between industrial situations where workers compensation laws controlled and situations involving automobiles, because in both, [a]ccidents are inevitable. 56 The committee anticipated the criticism that 47. Id. at Id. at Id. at Id. at Id. 52. See id. at Id. at Id. at Id. at Id.

8 660 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 the same can be said of almost any endeavor and everyday life, in general, when it stated, [h]owever that may be, the [c]ommittee is satisfied that, because of the great number of cases involved and the peculiar difficulties of handling them under the existing system, the problem of dealing with motor vehicle accidents deserves separate consideration. 57 Special treatment was deserved because traditional negligence principles became difficult to apply in the context of an automobile accident: In most automobile accidents, a car collides with another car or with a pedestrian. All the action occurs within a few seconds. It is almost impossible for witnesses, even though they have not been participants in the accident, to remember and to reproduce exactly to the jury swiftly succeeding events which they have been neither trained nor prepared to observe. Litigation in such cases results in jury trials which are largely contests of skill and chance. 58 As workers compensation thrusted the major burden of compensating for accidents on industry, the major burden of compensating automobile accidents would be thrusted on those who operated automobiles. 59 Social necessity demanded that the cost of industrial accidents be shifted from the injured workers to the employers, and, so too did it demand that the cost of automobile accidents be shifted from the injured party to all those who operated automobiles. 60 Insurance would be compulsory, with every vehicle owner required to carry insurance covering personal injury or death caused by the operation of his motor vehicle. 61 Instead of fault, the inquiry would be simplified: unless the vehicle was being operated without his consent, the owner would be obliged to pay benefits if his motor vehicle caused personal injury or death, regardless of the reasonableness of the vehicle s operation at the time of the accident. 62 Tort principles were not to be entirely cast aside though. The committee was of the opinion that cause be determined by allowing the... courts to apply accepted legal principles in the process of interpretation. 63 The committee also borrowed from the field of workers compensation by making its system of compensation the exclusive remedy for automobile accidents. 64 When it came to benefits, the committee took as its models the workers compensation schemes put into place by New York and 57. Id. at Id. 59. See id. at Id. 61. Id. at Id. 63. Id. at Id. at 143.

9 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 661 Massachusetts 65 but envisioned that any State enacting the plan would draw upon its own workers compensation act as to the benefits to be provided. Under the normal tort system, there was often delay in the payment of benefits. As the old saying goes, the wheels of justice grind slowly. Under the committee s compensation scheme, benefits would begin to be paid as soon as it was established that a person was injured by a motor vehicle in operation and which motor vehicle(s) caused the injury. 66 The committee also foresaw challenges to the implementation of its system based on constitutional principles such as due process and the right to a trial by jury. 67 The committee found the various workers compensation acts and case law which sustained them to be outstanding analogies for concluding that a compensation scheme not based on fault would be upheld for automobile accidents. 68 II. THE IMPACT OF THE COMMITTEE S REPORT Indifference would perhaps best describe the general response to the committee s report. Far from creating a frenzied debate in the state legislatures or the world of academia the committee s report appears to have gone by largely unnoticed for some time. In fact, none of the early proposals were even considered by any state legislature. 69 By the 1950s, not much had changed. Negligence law was still yielding [a]rguments about fine questions of fault, two or three years after the event, where cars had crashed in a split-second occurrence[.] 70 The factual underpinnings of the committee s report had not been seriously challenged and were as true in the 1950s as they were in A study conducted in New Haven, Connecticut revealed that many of those injured in automobile accidents still had to look to uninsured defendants for any chance of recovery, which was greatly diminished compared to cases with insured motorists. 72 In fact, the odds of recovery from an uninsured motorist were worsening. For losses of over $100, there was an almost nine in ten chance of no recovery, 65. Id. at 146. An entire explanation of the benefits to be paid is unnecessary, as the Committee envisioned each state drawing upon its own workers compensation act when it came to the benefits provided. For a full outline of the benefits see id. at Id. at See id. at 162. The committee s concern would prove prescient in Michigan s case. 68. Id. at 174, JOOST, supra note 18, at Fleming James, Jr. & Stuart C. Law, Compensation for Auto Accident Victims: A Story of Too Little and Too Late, 26 CONN. B.J. 70, (1952). Interestingly, despite the paucity of action in the field of automobile accident compensation, a note from the editor at the start of the article stated that the article was written to acquaint the public with a problem so serious that it deserves the attention of everybody. 71. Id. at Id. at

10 662 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 compared to an eight in ten chance in Also, in cases where an earner was injured, a full 40% of cases were involved in litigation for over 2.5 years, evidencing a significant delay in any compensation payment. 74 If anything, the delay was lengthening. In many cases, justice delayed meant justice denied. Where an uninsured motorist was involved, the tort system, according to the New Haven study, f[e]ll[] far short of affording compensation even in those cases where there [wa]s a theoretical legal right to it. 75 Even where there was serious injury, full compensation was not awarded, and in a quarter to a third of the cases, there was no recovery as judgment was rendered for the defendant. 76 Injured parties were faced with a difficult decision: either absorb the hardship of waiting for a significant time as debts continued to accumulate or accept a settlement that did not fully compensate the injury. 77 It was little wonder that in New Haven, [t]he present study shows that the same facts and the same problem are still with us today. We submit that they call for the same steps to be taken that were offered in the Committee Report. 78 Even compulsory insurance was not enough to assure compensation to an injured party. While compulsory insurance did ensure that a defendant would be financially responsible, that defendant still had to be found liable. 79 All of the problems attendant to litigation remained: delay, unpredictable juries, cost of counsel, contributory negligence, and the like. Knowing that a would-be defendant would be collectable at the time of judgment provided little peace of mind to an injured party with mounting debts. It was argued that a system of compensation, without regard to fault, would succeed where litigation had failed. 80 By the end of the 1950s, the situation had not improved. The calls for change coming from scholars and commentators produced little action from lawmakers or the insurance industry. Automobile insurance rates were ever increasing, the courts dockets continued to be crowded, and there existed a menacing view of the inadequate compensation that victims of traffic mishaps too often receive. 81 The insurance bar worried that [i]f we do not find a solution,... public demand may force the Government to step in with a program of indemnification regardless of fault or some other 73. Id. at Id. at Id. at Id. at 79 n Id. at Id. at Joseph Mitchell Kaye & Jules W. Breslow, Legislation to Replace Adjudication- Planned Compensation for Auto Accident Victims, 35 B.U. L. REV. 488, 492 (1955). 80. Id. at J. Harry LaBrum, Time for Action: The Problem of Motorists Insurance, 45 A.B.A. J. 692, 692 (1959) (ed. commentary).

11 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 663 plan that is at odds with our long-established ideas and customs. 82 Insurance companies and lawyers resisted calls for compensation regardless of fault and to date have prevented adoption of such an idea. 83 New enactments such as compulsory insurance laws and laws regarding unsatisfied judgments were leading the public to think not only that it should be protected against uninsured motorists, but that there was an entitlement to compensation for any injury. 84 Comparable to the current debate on health care, there was a feeling that if private business could not provide affordable, complete insurance, then the government might have to step in and compel it. The insurance industry did recognize the problems and criticisms leveled against the system at that time. For example, in cases that went to verdict, the injured victim received only about half of the amount necessary to compensate the injuries, and it was received far too late to alleviate the financial burdens which the accident occasioned. 85 Indeed, by 1959 the stage was set for a rare occurrence: both the insurers and the insureds agreed that some change was necessary. It was not merely the accident victims who were being harmed by the traditional tort system. For the automobile insurers, for every $100 taken in premiums, $116 was expended in costs. 86 The U.S. Department of Transportation claimed that the traditional negligence-based liability system would appear to possess the highly dubious distinction of having probably the highest cost/benefit ration of any major compensation system currently in operation in this country. 87 In fact, at least one insurance company was already utilizing policy endorsements, providing compensation options regardless of fault in some instances. 88 The insurance companies feared that a refusal to write certain risks, coupled with an increase in the premiums charged, could lead to government intervention. 89 On this fear of intervention, the insurance industry was clear: This must be avoided at all costs. 90 Other proposals for change were bandied about by academics during the 1950s and early 1960s. In 1950, drawing on workers compensation laws, Professor Albert A. Ehrenzweig advanced what may have been the 82. Id. (ed. commentary). 83. Id. at Id. 85. Id. 86. Id. at JOOST, supra note 18, at 2 8 to 2 9 (quoting JOHN A. VOLPE, U.S. DEP T OF TRANSP., MOTOR VEHICLE CRASH LOSSES AND THEIR COMPENSATION IN THE UNITED STATES 95 (United States of America Department of Transportation 1971)). 88. LaBrum, supra note 81, at Id. at Id.

12 664 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 first proposal for non-compulsory, non-fault-based insurance. 91 Under this plan, an automobile driver would be free to rely on his superior skill and good fortune for protection from a civil action. 92 The system would leave traditional tort law in place, while giving those who did not want to gamble a way out. 93 Notably, Ehrenzweig rejected the idea of a principle of strict or absolute liability. 94 In 1958, Leon Green proposed a compulsory system of insurance for automobile accidents. 95 This insurance would be a complete substitute for tort actions, which Green felt were driven to excessive costs by awards for pain, suffering, and other noneconomic damages. 96 Also, in 1962 Clarence Morris and James Paul proposed a complex sliding scale system which increased benefits according to the severity of the injury. 97 The authors felt that any efforts to abolish liability based on fault were doomed for lack of popular support. 98 There were also those who came to the defense of the traditional tort system. As to the inadequacies of the system based on the short duration of an accident, coupled with a long delay before a trial: All adjudication is vulnerable to the inadequacies of evidence and the consequent exploitation of the situation by the skill of counsel.... Auto accidents are at least more public than many other legal situations and they almost invariably do leave physical traces. The witness to an auto accident is asked for observations likely to be well within his daily experience. The law can tolerate a goodly margin of error, and the threshold of distortion which this line of attack on liability for fault must establish before it becomes a persuasive reason for throwing over the system is high. 99 While it may seem unreasonable that some victims of traffic accidents will be denied compensation, under the common law system it is intended that some victims will have to bear their own losses. 100 In short, it was argued that there is no quality unique to automobile-accident cases to justify discarding tort principles. 91. See JOOST, supra note 18, at 2 17 (citing Albert A. Ehrenzweig, Full Aid Insurance for the Traffic Victim A Voluntary Compensation Plan, 43 CAL. L. REV. 1, 42 (1955)). 92. Ehrenzweig, supra note 91, at See id. at Id. at JOOST, supra note 18, at Id. 97. Id. (citing Clarence Morris & James C. N. Paul, The Financial Impact of Automobile Accidents, 110 U. PA. L. REV. 913 (1962)). 98. Id. 99. Walter J. Blum & Harry Kalven, Jr., Public Law Perspectives on a Private Law Problem Auto Compensation Plans, 31 U. CHI. L. REV. 641, 647 (1964) Id. at 653.

13 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 665 The system was not just a burden on the courts. By 1964, it was estimated the economic impact of automobile accidents was in the neighborhood of $2.5 billion annually. 101 Furthermore, the costs were not just being borne out by tortfeasors and their insurers anymore. Thanks to programs like the Old Age Survivors Insurance and the Supplemental Security Income programs of the Social Security Administration, the rapid rise in health insurance subscriptions and other non-tort sources, some of the reparations were being foisted on the public at large. 102 In fact, these programs were likely providing about half of the total help received by injury victims. 103 Because the losses were no longer being shifted to those who caused the injury, the underpinnings for the theory of torts were prov[ing] to be poetic fallacies. 104 It was no longer only the wrongdoer who was forced to pay. Although the idea of compensation without fault had been suggested for automobile accidents for decades and had even been somewhat debated by academics and those in the insurance industry, it received scant attention from lawmakers. Things began to change in 1965 when Robert E. Keeton and Jeffrey O Connell penned Basic Protection Insurance for the Traffic Victim: A Blueprint for Reforming Automobile Insurance. 105 III. KEETON AND O CONNELL At the time Keeton and O Connell were writing, it was estimated that only forty-four cents out of every dollar collected in automobile insurance premiums actually was used to compensate an injured party; the other fiftysix cents went to pay for overhead and claims administration. 106 Like those who had made proposals before them, Keeton and O Connell realized that the system of insurance for automobile accidents was marred by inefficiency, and the alternative for compensation, the personal injury system, had glaring deficiencies as well. In terms of compensation, it fell woefully short in that many received either no compensation or less than that necessary to cover economic losses. 107 Furthermore, the system suffered from great delay, complexity, and unfairness. 108 Litigation was a 101. Alfred F. Conard, The Economic Treatment of Automobile Injuries, 63 MICH. L. REV. 279, 279 (1964) Id. at Id. at Id. at Robert E. Keeton & Jeffrey O Connell, Basic Protection A Proposal for Improving Automobile Claims Systems, 78 HARV. L. REV. 329 (1964) (This short adaptation, released in December 1964, provided a glimpse into the complete work which would be published in 1965.) JOOST, supra note 18, at ROBERT E. KEETON & JEFFREY O CONNELL, BASIC PROTECTION FOR THE TRAFFIC VICTIM: A BLUEPRINT FOR REFORMING AUTOMOBILE INSURANCE 1 (1965) Id. at 1 2.

14 666 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 lengthy process requiring the services of a legal professional and encouraged settlements which were not in proportion to the injuries. Finally, the tort system was an expensive process, further troubled by problems of administrative waste and temptation for dishonesty to improve one s chances of recovery. 109 The times had changed drastically. In 1916, there were roughly 3.5 million automobiles in use in the United States. 110 By 1964, there were almost 83 million motor vehicles registered and more traffic accident injuries in a single year (almost four million) than there were total vehicles on the road just fifty years prior. 111 An increase in drivers and an increase in accidents, of course, led to an increase in litigation. In 1955, some areas experienced delays of up to forty-eight months before an automobile case would be heard in the courts. 112 Though efforts were made to reduce the delay, in large cities the average delay was still twenty-eight months in Further, even when the tort system was allowed to play out, results were skewed when it came to adequate payment for injuries. Those who suffered relatively minor injuries were paid quickly and in excess, while those who suffered more serious impairments were subjected to prolonged delays and were vastly undercompensated. 114 As with any dispute, a party was more apt to be flexible and generous when it came to small amounts given simply to make the problem go away than with large amounts. 115 It is commonly assumed that the main goal of tort law is to compensate for a loss. 116 Rather than let the loss fall where it may, the system shifts the loss to the person who is adjudged at fault. 117 Indeed, this concept appeals to fundamental fairness, as it only seems right that he who occasioned the injury at least legally, if not morally should pay for it. In the case of automobile accidents, however, this ideal was not being met in many instances. A system can only be effective in shifting losses if those against whom claims are made can satisfy their obligations. 118 In this regard, when it came to automobile accidents, the system in place appeared to be failing. When it came to claims against an uninsured motorist, the chances of recovery were dismal. Those who suffered injury at the hands of an uninsured defendant would only see some recovery, an average of 109. Id. at Marx, supra note 32, at KEETON & O CONNELL, supra note 105, at E.g., id. at Id. at Id. at Id. at Id. at Id. at Id. at 250.

15 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT % of the time; whereas those who dealt with an insured defendant received some recovery about 85.3% of the time. 119 While allocation based on fault may work when the question is phrased [w]hich of two drivers involved in a two-car collision should pay for the damage done? the allocation is less likely to work when the question is phrased in the community at large, who should bear the burden of automobile accidents? 120 Instead of a single driver paying for his individual loss, the entire driving community would pay for all losses sustained by that community. In fairness, it was argued, all those who benefit from the activity should contribute to compensating for the damage caused by that activity. 121 A slight burden on the driving community as a whole would be preferable to a major burden on some particular motorist who happens to be involved in an accident perhaps one that does not involve any negligence whatsoever. 122 A burden which might crush one person could easily be borne by the community at large. Placing the burden on the entire community brings the cost to the attention of all and promotes better-informed decisions. 123 This is not to say, however, that a negligent motorist will have his costs subsidized by the rest of the driving population. While everyone who drives would pay his own way, those who are negligent will pay a more significant share via higher premiums. 124 Keeton and O Connell devised a plan with two basic features: (1) compulsory insurance which would compensate all injured parties, without regard to fault, up to $10,000 per person and (2) immunity from tort liability, to some extent, for insureds. 125 Also, whereas many previous proposals were but broad concepts and outlines, Keeton and O Connell included the details. 126 The proposal took the principle of medical payments coverage and extended it to all out-of-pocket net losses, including lost wages. 127 Under the traditional system, even in the case of an insured defendant, the insurer was not obligated to provide indemnity 119. Id. at 55. Keeton and O Connell summarized the results of the three previous studies. See COMM. REPORT, supra note 4; James & Law, supra note 70; Morris & Paul, supra note 97. The averages used were computed using the James and Law adjusted data, where available. See also KEETON & O CONNELL, supra note 105, at 61 (demonstrating that in the case of non-fatal personal injury cases involving an insured defendant, on average, 69.6% of injured parties would recover their economic loss or more; whereas, with an uninsured defendant, on average, a 72.3% of injured parties would not recover, and a further13.3% would recover less than their economic loss) KEETON & O CONNELL, supra note 105, at Id. at Id. at Id. at Id. at Id. at Id. at (including a complete draft statute) Id. at 274.

16 668 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 until the tort liability of its insured had been proven. 128 Under the proposed system, the insurer would be obligated to pay up to $10,000 based on the simple showing that its insured was involved in an accident that injured the claimant. 129 The exemption from tort liability would apply, and the new compensation scheme would be the exclusive remedy as to the first $5,000 in noneconomic damages and the first $10,000 in economic damages. 130 As very few cases surpass these dollar thresholds, the strain on the judicial system would be greatly alleviated. The system would also eliminate the tendency to be overly generous in settling relatively minor claims. The goal was compensation, not over-compensation, and benefits were limited to the loss actually sustained. 131 To account for the situations in which someone was injured due to intentional conduct, there would still be a shifting of the loss. Though the insurance company would have to compensate the victim of its insured s conduct, the company could then obtain reimbursement from its insured. 132 Thus, the burden would no longer fall on the injured party, but on the insurance company. Further, no longer would the injured party be forced to foot his bills and seek benefits at the end or accept an early but incomplete award for his damages. Benefits would now be paid as expenses were incurred, not in a lump sum at the end of the ordeal. 133 Finally, the system would substitute a first-party system wherein the injured party seeks benefits from his own insurer for a third party system wherein the injured party seeks benefits from the insurer of the tortfeasor. 134 Though their concepts might not have been completely novel, Keeton and O Connell succeeded where many before them had failed. Slowly but surely, their ideas were heard and began to produce reactions outside the world of academia. IV. POST-KEETON AND -O CONNELL THE LEAD UP TO NO-FAULT It was calculated that the Keeton-O Connell proposal would alleviate much of the pressure on the court system. In fact, it was estimated that 77.5% of automobile bodily injury cases would be removed from the justice system. 135 However, the proposed system would also be taking on some claims, which the justice system wanted to avoid. 136 A good deal of cases were regarded as closed without payment, mostly because they were 128. Id Id Id. at See id. at Id. at Id. at Franklin J. Marryott, The Tort System and Automobile Claims: Evaluating the Keeton-O Connell Proposal, 52 A.B.A. J. 639, 641 (1966) Id Id.

17 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 669 not pursued by the claimant for whatever reason. Now that payment would be automatic without litigation, it was likely that these claims would be pursued with much greater frequency. Since the Keeton-O Connell proposal also abolished the collateralsource rule which allowed tort recovery of reasonable medical expenses and wage losses, even where those losses were covered by another source it was also argued that the proposal would actually reduce the benefits of those claiming under the proposal s basic protection plan. 137 Even so, following the proposal, the pressures for change [were] mounting. The trend is in the direction of providing victims of accident or misfortune some compensation for loss regardless, or almost regardless, of the question of fault. 138 Though the plan did try to salvage part of the tort mechanism in an attempt to avoid becoming too large a shock to the system, it still looked to be too gigantic a step.... It [was] not the sort of modification or improvement of the automobile tort system that can be taken in stride by the Bar, the insurance companies, the courts or the general public[,] or so said a vice president and general counsel of Liberty Mutual Insurance. 139 It appears that, as to the general public, the then-present scheme was fomenting outrage. Life magazine ran an editorial in 1967 bemoaning the automobile-insurance situation in America and tellingly titled, Auto Insurance Has No Friends. 140 The opening line is succinct and definite: Nobody likes auto insurance. 141 Premiums were up some 55% from the previous decade, and due to litigation, it now took $2.20 in premiums to get $1.00 to the injured party. 142 The public did not fully comprehend the purpose of automobile insurance; it did not protect the driver against injury; rather, it only covered injury to another if the insured was found liable for causing the injury. 143 The Keeton-O Connell non-fault proposal was gaining converts, except among trial lawyers who normally collect about one-third of a liability settlement when they successfully represent a clamant in court. 144 Public interest was being piqued by a proposal claiming that better coverage could be had at a less expensive price. 145 Keeton and O Connell also borrowed one of P.T. Barnum s favorite tactics: self-promotion. Not content to let their ideas rest on one publication, they continued to publish works advocating for reform. The authors even opened one of their works with the folksy story of a fictional 137. Id. at Id. at Id Auto Insurance Has No Friends, LIFE, Nov. 17, 1967, at 4 (editorial) Id Id Id Id Id.

18 670 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 accident involving Jim Crane who quickly discovers the exact perils of the system that Keeton and O Connell lamented: low offers of settlement from insurance adjusters, the specter of contributory negligence looming large, a litigation system which encouraged less-than-forthright recollections of events which happened in a split second, attorneys caught in the dilemma of being zealous advocates while sticking within the bounds of the law, the problem of continuing medical bills during the litigation period (and a system which pays nothing until the case is finally resolved), court congestion, delay, potential double recovery due to health insurance, and public dissatisfaction. 146 Clearly, the authors were looking outside the realm of those who would normally read proposals for legislation and academics. The account of Mr. Crane was written in a manner to be easily understood by anyone, and the message was clear: the current system for compensating traffic-accident victims was broken. This is not to say that appeals to the masses were taking the issue away from those engaged in academia. On October 2 3, 1967, the University of Illinois College of Law held a conference to consider whether the automobile-claims system was in need of change. 147 Future Senator Daniel Patrick Moynihan called Keeton and O Connell s scheme, obviously workable. 148 Those who defended the current scheme claimed the concept of liability based solely upon fault is a crowning triumph of reason and morality. It is based upon the notion that the individual is responsible to his God for his own conduct, and should have to suffer the consequences if he is negligent (either as wrongdoer or victim). 149 Besides appeals to intrinsic fairness, it was also noted that at least some of the Liberty Mutual claims men are having much less trouble with the fault criterion than the professors. Nor are they anywhere near as pessimistically cynical about the shortcomings of society. 150 In fact, the advocates for the fault system note that the conclusions of those demanding change have failed to support their conclusions or broad assertions for example, that 146. See ROBERT E. KEETON & JEFFREY O CONNELL, AFTER CARS CRASH: THE NEED FOR LEGAL AND INSURANCE REFORM 3 32 (1967). In this fictionalized account, even Mr. Crane s attorney, Roy Cobb, laments, Dammit,... it s an impossible problem! We re damned whichever way we turn. Id. at 11. The attorney further opens the door for a savior alternative, commenting, What a relief it would be... to have a system free of these terrible pressures for perjury and half-truths! Id. at 12. Of course, Keeton and O Connell just so happened to have the alternative their plan of basic protection for automobile accident victims without regard to fault ROBERT E. KEATON ET AL., Introduction to CRISIS IN CAR INSURANCE vi (University of Illinois Press 1968) Daniel P. Moynihan, Changes for Automobile Claims?, 1967 U. ILL. L.F. 361, 368 (1967) Spencer L. Kimball, Automobile Accident Compensation Systems Objectives and Perspectives, 1967 U. ILL. L.F. 370, 372 (quoting William E. Knepper, Alimony for Accident Victims?, 15 DEF. L.J. 513, 530 (1966)) Franklin J. Marryott, Remarks to Automobile Accident Compensation Systems: Objectives and Perspectives, 1967 U. ILL. L.F. 387, 392 (1967).

19 Summer 2010] FOUNDATIONS AND ENACTMENT OF NO-FAULT 671 court calendars are overloaded with automobile accident cases. 151 even among the academic world, the debate continued. Clearly, V. MICHIGAN S EXPERIENCE Though Massachusetts would be the first State to adopt a no-fault system (effective January 1, 1971), 152 Michigan was still one the first States to give serious consideration to reforming automobile-accident insurance via a no-fault system. Furthermore, Michigan had already taken some steps regarding automobile accidents as early as 1933 when the State enacted its Motor Vehicle Financial Responsibility Act. 153 A. Background In 1958, a survey was conducted on automobile injuries in Michigan and found that Michigan residents sustained an aggregate economic loss (including property losses) of $178.2 million due to automobile accidents, roughly 1% of the annual personal income of Michigan residents. 154 The system produced top-heavy results with a very small number of people suffering large economic losses and accounting for a disproportionate amount of the total loss. 155 In the case of serious injuries, roughly 46% of the reparations came from tort liability, the bulk of the balance being made up via insurance and benefit programs (e.g., Social Security). 156 In such cases, 6% received no reparations, while 53% received reparations equal to 75% or less of their economic loss. 157 When it came to settling serious-injury tort cases, as the amount of economic loss increased, the percentage which was compensated by the settlement decreased. For catastrophic losses, the chances of being fully compensated through settlement were dismal. In losses of $25,000 or more, 71% of settlements covered 25% of the economic loss; furthermore, no injured party settled for more than 75% of his economic loss. 158 The settlements also evidenced an interesting pattern: as expenses incurred in 151. E.g., id. at ALAN I. WIDISS ET AL., NO-FAULT AUTOMOBILE INSURANCE IN ACTION: THE EXPERIENCES IN MASSACHUSETTS, FLORIDA, DELAWARE AND MICHIGAN 8 (Oceana Publications, Inc. 1977) See Surtman v. Secretary of State, 15 N.W.2d 471 (Mich. 1944). The present Financial Responsibility Act is codified at MICH. COMP. LAWS (West 2006 & Supp. 2010) ALFRED F. CONARD ET AL., AUTOMOBILE ACCIDENT COSTS AND PAYMENTS 142 & n.4 (The University of Michigan Press 1964) Id. at 145 (Despite accounting for only 3% of the entire number of automobileinjury victims, those who suffered an economic loss of more than $10,000 accounted for 57% of the aggregate economic loss.) Id. at Id. at Id. at

20 672 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:653 pursuing settlement increased, the percent of cases that received no settlement decreased. 159 Also, when disagreements arose during settlement negotiations, the specter of contributory fault was clearly present. Fault and how the accident occurred were cited as the most frequently mentioned factors for disagreements by 46% of claimants lawyers and 50% of defendants lawyers; the next category most frequently listed first damages for pain and suffering was only cited 17% of the time by both claimants and defendants attorneys. 160 There was also an extremely sharp correlation between amount of the settlement and time taken to get it[,] along with small settlement amounts coming much more quickly than large ones. 161 While this might be expected, as the expenses incurred in haggling over a small settlement amount might quickly surpass the amount, it does evidence a pattern whereby those most in need of compensation are subjected to a longer delay. At the time of the survey, of the approximately 86,000 individuals in the State who suffered economic loss due to an automobile accident, only about one out of twenty initiated a law suit. 162 Of that fraction, those suffering a serious injury (approximately 12.5% of all those injured) filed suit approximately 27% of the time, while of those sustaining minor injury, only 2% filed suit. 163 Of all cases filed, 61% were dropped or settled prior to a pre-trial conference, and only 15% actually went to trial. 164 Claimants who filed suit generally waited one to three years for some sort of settlement to be obtained; of those cases that went to trial, a full 67% waited two years or more. 165 In the eyes of claimants lawyers, delay was a significant problem; 30% of those attorneys spontaneously offered delay as a problem when asked if there were any major problems in the handling of automobile injury cases in Michigan. 166 In 1957, these automobile injury cases only comprised 8% of the civil cases filed in Michigan. 167 However, when it came to cases that were at issue meaning an answer was filed automobile-accident cases accounted for 20% of the civil cases. 168 Interestingly, although automobile-accident cases accounted for just 14% of all civil cases actually tried, they accounted for an astounding 56% of civil jury trials. 169 In short, the same problems reformers had 159. Id. at Id. at Id. at Id. at Id Id. at Id. at Id. at Id. at 253 (By way of comparison, divorce cases accounted for 48% of the civil cases filed.) Id Id. at

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