Wednesday, March 21, 2012

Crashing your Car and Eating it Too: Part 2. Tort Law and No-Fault Car Insurance

Notes and Thoughts on "Tort Law and No-Fault Car Insurance" by Murphy and Coleman


In the last post we were talking about tort laws and how they might apply to car accidents/the insurance industry.  Recall that tort laws are laws about legal liability.  The proposal is that a no-fault system better meets our standards for justice and utility than the current model.

The philosophical concepts involved are retributive justice and corrective justice.  The latter we'll talk about...later.  Retributive justice is the idea that if someone has acted wrongly and are at fault for damages, they should be punished.  In the case of car accidents the question is whether this standard of justice can be met under no-fault insurance--where the injurer doesn't pay for damages, the victim's insurance company does.

We also discussed that there are two criteria to establish fault that usually have to both be met:  a) whether the injurer's conduct fell within an accepted standard of behaviour (barring extraordinary circumstances) and b) whether he was of sound mind.

Retributive Justice Continued
Objective vs Subjective Standards of Fault
With these two criteria for fault in mind, lets bust out the philosophy.  When we talk about the first criteria, we can ax if it is fair to apply an objective standard of conduct to er'body, including those that might not have the innate ability to achieve it.  Whachutalkin' 'bout Willis?

For example, we prolly all know someone who is a klutz.  Actually, I'll use my roommate as an example.  For whatever reason, he is clumsy.  I'm sure he didn't chose to be this way but he's always droppin' shit and bumpin' into shit.  As luck would have it, the plates and cups in our apt. are all mine from before.  Well, in the span of about 5 months now he's managed to drop and break the glass lid of my pot, 3 plates, and every single one of my mugs.  Now, because I'm Jesus I don't condemn him to Hell for breakin' all my shit because I know that my dad made him clumsy (for a reason, of course...everything happens for a reason!)

Ok, now that I've got that off my chesticles we can get back to philosophizing.  Would it be fair for me to ascribe fault to all his clumsy actions over which he has no apparent control?  It's not like he chooses to break my shit.  In other words, should I hold his behaviour to some objective standard or should I judge him based on a standard appropriate to his capabilities?

Of course, being Jesus, chose the latter but is it possible to have a legal system in a large society where everyone gets judged subjectively?  I'm not sure how well that would work out.  How would we even begin to determine what the appropriate standards are for each individual?  How would it be considered just to those who had suffered damages at the hands of individuals with "abnormal" behavioural norms?

As Oliver Wendell Homes writes in a similar example he stole from me 90 years ago by time traveling to the future and reading my blog:

" doubt his congenital defects will be allowed for in the courts of Heaven (that's me!), but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect."

But, in the context of automobile accidents there's a prollem for the retributive system (those who are shown to be at fault must pay).  Whether we adopt an objective or subjective standard we are only punishing wrongful driving that actually causes accidents.  All the same acts of reckless driving that might cause accidents go unpunished if they don't actually cause an accident.

In criminal law, even attempts to engage in crimes are punished; eg, attempted murder, attempted rape, etc...From the retributive point of view, it hardly seems like 'justice' that wrongful driving (knowingly reckless, potentially harmful) goes unpunished.  It seems odd to say that people can drive however carelessly and recklessly they want so long as they (are lucky enough to) avoid getting into an accident.  We must then ax, should a legal system merely punish the consequences of actions, or are there some actions that tend toward injury of others that we should also punish?

We can break down the situation like this:  There are really two things going in on when it comes to punishing reckless accident-causing drivers.  1)  Retribution: punishment for being at fault for a harm-causing act. 2) Recompense: punishment from the damage caused by the act.  The problem with the retributive system is that it lumps these two issues together.

Why should it be that the punishment for the act be equal to the dollar amount of the damages?  Two people could engage in the same reckless driving and one crashes into a Kia and the other crashes into a Rolls Royce.  How is it justice that the exact same act is penalized with different dollar amounts?  How is that consistent with our notions of justice?  And, shouldn't we also be punishing the act?

By contrast a no-fault system separates the two issues.  No-fault doesn't mean that we no longer care who is at fault for an accident, only that the issue of fault is kept separate from compensation to the victim.  The victim will still get the compensation to which he is entitled.

The main point is that in order for there to be "justice" in a general sense, our notions of retributive justice do not require that compensation be tied to fault.  People can be compensated for losses without the compensation having to come from the person who's at fault.  Ok, so a no-fault system can handle the requirements of retributive justice, what about those of corrective justice?

Corrective Justice

What's corrective justice?  Well, it's the idea that if someone either gains or loses wrongfully things need to be "corrected".   In the context of car insurance, if your car gets damaged because of some crazy foo crashing into you, that is a wrongful loss; so, you deserve to have your loss corrected.
However, corrective justice does not legally entitle you to recompense if your losses are "faultlessly" caused.

So, the principle of corrective justice holds that you are entitled to compensation if you have suffered wrongfully inflicted harms.  But from whom are you entitled compensation?

In the realm of car insurance your claim might either be against your own insurance company or the insurance company of the person who hit you.  The first case is called first party insurance: in such instances you buy insurance that covers your losses if someone else hits you.  Third party insurance covers you if you cause injury to others.

According to no-fault insurance the victim's right to compensation is against his own insurance company (first party).  The right is derived from the contract he has with the insurance company.  The legal question of who pays in this case is clear, but does it satisfy our moral desires?

Moral Questions in Corrective Justice

Is all we require morally is that victimes receive fair recompense?  Or do we also want the injurer to pay something too? It appears our everyday notions of justice include something about people at fault having to pay for the damages they cause.

Reenter retributive justice--the idea that people who are at fault should be penalized.  It seems under the no-fault model we can accomodate both retributive and compensatory justice.  How?  Well, our notion of compensatory justice is satisfied when the victim is compensated for unjust losses (his car was damaged through no fault of his own).

We can satisfy retributive justice by penalizing the injurer with a fine or prison, or both--so long as the person at fault is penalized somehow.  Notice, we needn't penalize the injurer with the cost of the damage; we can penalize other ways.  Ok, I need to stop using the word "penalize" because I hear Beavis and Butthead every time I write it.

Some might protest that it is contrary to justice that an injurer not pay for the damages he has caused.  But is this really true?  Justice requires that the victim be compensated where he has suffered unjust losses.  Does it really matter where the compensation comes from?

If I owe the bank $100.00, do they really care if my mommy pays it for me or I pay for it?  Not really.  The issue is that the debt be repaid.  Who repays isn't that important.  As I said previously, the injurer can be punished in other ways, it need not be by paying for damages.  The proposal is to separate punishment of the injurer and restitution of the losses to the victim.

Of course the analogy between repaying debt and paying for injury and damages to another driver isn't perfect.  The obligation to repay debt is derived from a contactual obligation whereas the latter isn't--it's derived from having done wrong.  But unlike many cases of compensatory justice where a wrongdoer's intention was to gain at the expense of the victim; in the case of car accidents, there (usually) isn't any intent to gain by the injurer.  Once again, accidents are...accidental.

So to summarize we can see that tort law probably doesn't apply equally well to all situations where people are legally wronged.  In the case of a crime where the injurer's intent is to gain by illegal means compensatory justice tells us the criminal should repay the loses suffered to the victim.

But in the case of auto accidents, there is no intent on by the injurer to enrich themselves by crashing into the victim's car.  For this reason, if the injurer drove irresponsibly, we may want to apply principles of retributive justice for their actions, but it doesn't seem necessary for justice that the injurer pay the costs of the damages.  The victim can be compensated by his own insurance company, without any affront to our notions of justice.

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