Jeffrey O'Connell

Giving Motorists a Choice between Fault and No-Fault Insurance

Since insurance ranks right up there with photosynthesis on the ho-hum scale, the only way to muddle through this controversy is to inject a little drama into it. Don’t think of auto insurance as auto insurance. Think of it as a prize fight. A real knock-down, drag-out marathon slugfest. In one corner is “Killer” Tort, the slow-footed, hard-punching veteran who represents the “you-smashed-into-my-car-and-now-I’m-going-to-sue-yourpants-off’ old school of claims settlement. His opponent is ”Kid“ No-fault, a quick-moving young challenger who has never quite lived up to his potential. The ”Kid“ takes the gentlemanly approach to all accidents: Why get uptight about who’s at fault? Let’s just get the bills paid and the cars on the road.

A Neo No-Fault Contract in Lieu of Tort: Preaccident Guarantees of Postaccident Settlement Offers

The present method of compensating accident victims is both wasteful and ineffectual. Litigation is staggeringly costly for litigants and for society as a whole. Nonetheless, each year the volume of litigation increases, leading to a clogged court system. It can often take several years to resolve a case, and accident victims are often desperately in need of money during that time. When a case is finally resolved by the courts, there is no guarantee of a just outcome. Who, indeed, has the capacity to decide with precision the vague, complex, or hotly contested issues that accident cases typically present? The upshot is that such cases are often not disposed of on the basis of actual fault or need. As a result, pretrial settlement operates inefficiently because both sides must base planning decisions on the predicted results of inherently unpredictable court trials. One might be willing to overlook some of these shortcomings of the current fault-based system if it operated efficiently or produced just results. It does neither. The purpose of this Article is to suggest a scheme that would partially replace the existing regime. Under my proposal, accident victims would be compensated through preaccident nofault agreements.

Basic Protection. A Proposal for Improving Automobile Claims Systems

The optimum allocation of the economic burden of motoring injuries is a problem of both practical and theoretical concern. In this article the authors examine the operation of existing automobile claims systems in an attempt to highlight present incongruities and to isolate principles upon which a modern system might be constructed. The authors propose a new allocation of the burden of motoring injuries and in the second part of this article they go on to formulate a detailed program of statutory reform.

Commentary: Binding Early Offers versus Caps for Medical Malpractice Claims?

Like damages caps, early offer reform promises reduction in the costs of medical liability cases. In contrast to damages caps, early offer reform offers advantages to both claimant and defendant. Under early offer, the defendant would have the option to offer an injured patient periodic payments for the patients net economic losses as they accrue, but not payments for noneconomic losses (pain and suffering). If an early offer were made and accepted, that would settle the claim. This commentary(1) explains how an early offer reform might work and summarizes data from a recent closed claim study of medical malpractice cases in Texas and Florida. The data show widespread opportunities for successful early offers and provide evidence that substantial per case savings would result.

No-fault insurance for vaccine related injuries: Jeffrey O'Connell proposes an alternative insurance scheme for vaccine-injury victims

Under tort law in effect throughout most of the western world, a party injured by adverse effects from a vaccine can be paid under a legal claim only by proving the manufacturer or its product faulty. If successful, the claimant would be paid not only for his medical expense and wage loss but for his pain and suffering. But proving (a) the defendants conduct or product faulty and (b) the monetary value of nonmonetary loss (pain and suffering) is usually so complex that many injury victims are paid not at all, or only a fraction of their losses in settlement, only after long delay, and only after lawyers on both sides are paid large amounts of insurance dollars in litigation costs.

An Economic Model of Costing Early Offerss Medical Malpractice Reform

Today the key to the unworkability of tort liability as applied to personal injury is the complexity of the insured event. Tort liability insurance calls for payment of economic and noneconomic (i.e., mostly pain and suffering) damages in lawsuits based on fault. The determination of both fault and the value of pain and suffering is especially complex in medical malpractice litigation. Consequently, the liability insurance system is fraught for both sides with uncertainty that causes long delays and huge costs, including huge transaction costs. The result is not an insurance system for promptly paying needy injury victims, but an insurance system for prolonged and hugely expensive fighting about payments to both deserving and undeserving claimants — to the great detriment of both patients and health care providers.