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Zittrain Torts Playlist Spring 2013

Custom and Insurance

This section looks at further efforts by the law to flesh out the parameters of reasonable behavior. Under certain circumstances, particularly involving fact patterns that recur across entire industries, custom may be invoked to establish evidence of reasonable care. How should custom be worked into a case? Should its presence be definitive? We also pause here to consider a factor that makes negligence cases so much more numerous than intentional ones: insurance. Insurance policies don’t cover intentional torts, both because the commission of an intentional tort is thought to be within the control of the policyholder and thus contrary to the risk-spreading purposes of insurance – imagine obtaining “violence insurance” before going out to punch someone – and because it’s seen as unfair to let someone charge his or her violence to another party. Thus such insurance policies are also thought to be void as against public policy. The nature and availability of insurance infuses nearly every tort case. Here we examine ways in which a plaintiff might be tempted to make an otherwise-obvious claim for intentional tort sound in negligence, in order to make available the defendant’s insurance coverage – and how a defendant and his or her insurance company can react, given that the insurance company has a duty to keep its policyholder out of legal peril. Is a defendant’s insurance company working to construe his or her actions as intentional in an ambiguous situation simply upholding public policy, or betraying a policyholder at precisely the time of need? To what extent should courts be on guard against collusion by plaintiffs and defendants to see harm covered by insurance rather than borne by either of them personally?

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