Notes and Thoughts on "Tort Law and No-Fault Car Insurance" by Murphy and Coleman
Recap
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:
"...no 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.
Notes and Thoughts on "Tort Liability and Corrective Justice" by Murphy and Coleman
Overview
Suppose you're a baby and you're driving my car because the Beatles' song told you too. You crash the car and destroy someone's beautiful pink flamingo lawn ornaments. Who should pay to replace the flamingos? Most reasonable people would say it's the baby's fault (well, maybe not, but play along). But what if it was determined that the Beatles, being a rock and roll group, sing the devil's music which hypnotizes babies in to driving cars and that when the song's over, baby will crash?
Now things aren't so clear are they? If forces outside baby's control caused him/her to drive and crash, maybe we ought to reconsider where the fault lies!
Ok, these are admittedly horrible examples that will do more to confuse the issue of legal liability than help, but now you're thinking about it right?....right?....right?
I'll get to the point before I lose my meager audience. Today we are going to talk about tort laws (liability laws) in the context of car insurance. Yay! Fun time!
Definitions and Framework
When someone gets injured (physically, emotionally, financially) the basic legal assumption is that the victim must bear the losses/injuries. Yup. You read that correctly. Notice I di'int say anything about whether they injured themselves or not. 'Cuz self-injury happens. I stub ma'toe all the time but it doesn't immediately entitle me to restitution. (Is restitution the oldest legal word?) Or sometimes the wind picks up sand and blows it right in my eyeball--again, injury doesn't automatically guarantee restitution. Or sometimes I damage my own property cuz I'm clumsy. In legal language they say "initially losses lie where they have fallen".
So, check it. We gah kick this up a notch. Tort law is all about specifying the conditions under which this basic position (that losses lie with the loser) can be overridden. We gots rules for this stuffs.
The first set of rules are the liability rules which are the conditions a victim must meet in order that another pays for his losses. For example, if Vicky the Vandal scratched the paint off your car for no reason except to amuse herself, this would probably fulfill one of the conditions that entitled you to compensation for your loss. The losses would no longer lie with you.
There are 2 kinds of liability rules:
1) Strict rules of liability in which the victim must establish that
a) the defendant acted
b) the victim suffered a compensable loss
c) the defendants action caused the loss
2) Rule of fault liability in which the victim must establish all of (1) and
d) the defendant's conduct was at fault
Notice the important distinction between the two kinds of liability laws: in (1) there is no need to demonstrate fault--merely that the injury was a consequence (intentional or unintentional) of the defendants action (i.e., there was a causal relation between the defendant's act and the injury to the victim); whereas in (2) fault must be established, in addition to the conditions to (1).
The rules of the defendant are the rules of positive defense. Basically, these are the conditions under which a defendant can legitimately avoid having to pay compensation. Suppose you are a master hypnotist and hypnotized Vicky the Vandal to scrape the paint of your own car. This likely scenario might get Vicky the Vandal off the hook for paying for your new paint job.
Where's the Philoso-beef?
So, what's this all got to do with philosophy? Sounds like the legal system's got shit pretty much figerd out, now youz gong brang in philosophy an' mess shit up? Why you philosophers always gotta do that?
Yo, check it. What's the philosophy behind fault liability? The standard understanding is that it is necessary for justice. If Vicky the Vandal can be shewn to be at fault (maybe because of intent to cause damage) then it seems to follow from the notion of justice the Vicky pay for the losses to the owner of the car.
Wut Wut about strict liability laws? Wutz philosophy gotz to say about them? These are presumed to be there for reasons of utility. It seems that society is better of if individuals or groups who are caused to have losses, are compensated by those who caused the loss. If victims had to pay for their own losses because of, for example, the negligence of others, the social effects will be undesirable. It would mean victims might suffer because of the negligence of others and/or there will be no incentive for people or groups to consider the possible impacts of their actions/policies.
So, now we're starting to talk a little philosophy. But wait! there's more! What if these assumed goods are just that--assumed. What if we've built our whole system of tort laws on false assumptions? What if fault liability better promotes utility and strict liability better promotes justice? Oh! Snap! And it doesn't end there. We're looking at tort law as though there are only 2 possible ways of doing it, how can we properly evaluate these 2 methodes if we haven't even explored other alternatives? Stoopid philosophy, why you makin' me crazy all the time?
To examine these fun questions and more, we will look at tort laws in the context of automobile (who uses that word anymore? I'm going to use "whip" instead) insurance.
Justice and the Cost of Whip Accidents
Ok, for those of you who aren't hip to the jive and connected to today's youth culture to the extent that I am, "whip" means "horseless buggy".
First let me make a few comments on no-fault whip insurance and accidents: a) cases aren't handled individually; that is, for every accident there isn't a court case. b) the costs of repaying the losses aren't applied to the person who's fault it was. This might bother some because it seems contrary to justice. If the person who's fault it was doesn't pay for the damage, how is that fair?
Not only would it seem unfair that a driver who caused an accident doesn't pay for it, but a further injustice is that the cost is distributed to all drivers covered by that insurance company, regardless of their driving record or involvement. That just seems tripple unjust.
But wait! Does it seem fair that a normally conscientious driver who makes a slight driving error be on the hook for the cost of someone's car and hospital bills? What if those bills put the driver in permanent poverty. How can we say it is just that someone (and their dependents) must live a life of poverty because of one small driving error? That doesn't seem like justice either.
It may seem trivial but accidents happen by...accident. They're not called "on-purposes". Maybe so. But one might reply that not all cases involve conscientious drivers. So, what do? Do we have one set of rules for car accidents caused by intentionally reckless driving and another for innocent accidents? The prollem with that is we'd still need, in many cases, a trial to determine fault. So we're back at square one.
Retributive Justice
Proponents of retributive justice say "wrongdoing deserves its comeuppance: a measure of pain, suffering, or deprivation should be extracted from wrongdoers, and the deprivation should reflect the nature and magnitude of the wrongdoing." A subset of this view is that the bar for punishment is set where the perpetrator is shown to have been morally defective. So, penalization arises (he he...he said penalization arises!) when legal fault is shown to be related to moral fault.
The basic retributive argument goes: if someone's (morally) defective conduct is a relevant factor in how/why the harm was brought about, then he is responsible for the harm. Along with that responsibility comes the obligation to pay for the damages. Justice is served...(bitches!)
But we might not want to accept such a hyper-moral system of law. Not all laws are moral laws (e.g. traffic laws) and there are questions about who's standard of morality we are going to apply (mine). Just because someone had one too many drinks before driving doesn't mean the person is immoral. Irresponsible and foolish perhaps, but drinking and driving isn't immoral just as it is hard to see how speeding is immoral.
Maybe instead we ought to abandon the criterion of moral character. It might make more sense to say that, in the interest of justice, penalties should befall those who fail to satisfy "the legal standard of due care". So, instead of ascribing fault based on some moral standard, we base it on a legal standard.
Two Criteria to Establish Fault
When we assess fault, legally or morally, there are often two criteria that are evaluated. First is the relationship between the act and the appropriate standard of conduct of a situation. Here we ax, to what degree were the driver's actions consistent with appropriate actions in a similar situation. To the degree that they deviated we ascribe fault. A defendant or their lawyer might try to avoid fault by arguing that their actions didn't fall outside of a norm or that there were extenuating circumstances that explain the erratic driving (there was a cougar in the car).
In short the defendant will try to avert fault by showing that either their driving was consistent with a driving norm or that there were special circumstances for which they fell outside the norm that absolve them of blame.
The second is the agent's state of mind. Maybe, unbeknownst to the driver, someone slipped him some crazy pills before he got behind the wheel. Or maybe he was irreconcilably upset cuz he heard over the radio that the Justin Beiber concert was cancelled.
Important to both of these criteria is that to establish fault they often have to both be true of the defendant: that his behaviour was outside an accepted legal norm (for no good reason) and that he was of sound mind. Also, keep in mind that these criteria are about establishing fault, not strict liability (causation). An implication of this is that people are only penalized for genuine wrongdoing.
In the next installment we'll look more closely at problems with retributive justice when applied to auto accidents and introduce another concept of justice, "corrective justice". Stay tuned!
