Torts Damages + Insurance+Intentional Torts

Question 1

Compensatory damages include

Answer 1

past and future pecuniary harm

Question 2

four factors to take into account for past and future pecuniary harm

Answer 2

• Past and future lost income
• Past and future medical expenses
• Future harm must take into account the life expectancy of plaintiff [ or expected working life for future income]
• And the discounted present value of future income

Question 3

What is pecuniary harm

Answer 3

Quantifiable finanical losses

Question 4

Two ways it is improper to instruct a jury to award financial harms, and why for the second one.

Answer 4

• Per diem (how much per day they suffered)
• amount they would take for them to suffer a similar injury(since anticipation of harm inflates the number)

Question 5

If non-pecuniary harms are excessive, A trial judge may…(and explain)

Answer 5

grant a remmittur: plaintiff may accept a lower amount that the judge thinks is appropriate, or else a motion for a new trial is granted.

Question 6

If non-pecunary harms are excessive an appelate court may…(and explain)

Answer 6

overturn if it “shocks the conscience”, that is, if the award is so large that it suggests passion or prejudice on the part of the jurors.

Question 7

What kind of court may overturn if it shocks the concious?

Answer 7

Appelate

Question 8

What kind of court may grant a remmitur?

Answer 8

Trial

Question 9

In terms of non- pecuniary harm a legislature may…

Answer 9

impose a cap on damages or types of damages, but it is not case by case

Question 10

Majority rule for “Loss of Enjoyment of Life”

Answer 10

Coupled in with pain and suffering, such that awareness is required

Question 11

Minority rule for “Loss of Enjoyment of Life”

Answer 11

Separate from “Pain and suffering” such that awareness may not be required.

Question 12

What is a survival action

Answer 12

Allows the estate of a deceased victim to recover for any injuries the victim suffered up to the time of death.

Question 13

What is a Wrongful death action

Answer 13

A wrongful death action allows heirs or beneficiaries to recover damages they have suffered as a result of the victims death. Depends on the state if loss of consortium is included.

Question 14

What are punitive damages and when are they appropriate?

Answer 14

Punitive damages are awarded in cases involving intentional harm or reckless conduct “for the sake of example.”

Amount is proportional to the wrongfulness of the conduct.

Question 15

Punitive damages are not awarded…

Answer 15

In cases of ordinary negligence

Question 16

Employer is liable for punitive damages

Answer 16

When the conduct was engaged by or authorized by a principal or managing agent.

Question 17

What is the purpose of insurance?

Answer 17

Protects the insured against adverse Finaicial consequences of an unpredicatble event

Question 18

First-Party insurance and examples

Answer 18

Pays benefits to the insured. Examples include life insurance, medical insurance, property insurance, and automobile insurance

Question 19

Third part insurance

Answer 19

Pays benefits in the event the insured is sued by another or is held liable to another as the result of a lawsuit

Question 20

Examples of third party insurance

Answer 20

Homeowner and automobile insurance typically includes both first and third party insurance benefits.

Question 21

Collateral source rule for evidence

Answer 21

Precludes a defendant from introucing evidence that some or all of the plaintiffs damages have been paid by someone other than the defendant

Question 22

Collateral source rule for damages

Answer 22

Precludes a defendant from reducing or offsetting the judgement by any amount that were received by the plaintiff from sources other than the defendants.

Question 23

Collateral source rule for double recover

Answer 23

A plaintiff is entitled to recover the full amount of his/her reasonable medical expenses and lost wages, even if those amounts were already paid by insurance or by anyone other than the defendant or another tortfeasor

Question 24

What is Subrogation

Answer 24

Where a creditor or victim has recieved payment from a secondary source [Such as insurance], that source may succeed to the creditor/victim’s rights against the party that bears primary responsibility

Question 25

Most insurance contracts contain this clause

Answer 25

Most insurance contracts will contain a subrogation clause that allows the insurer to succeed to the insured’s rights against a third-party tortfeasor, and to approve of or participate in a settlement

Question 26

Common law subrogation arises

Answer 26

Automatically, absent a contract, for insurance payments for property damage, but it does NOT arise automatically for insurance payments for personal injury.

Question 27

Family purpose Doctrine

Answer 27

Owner of a car may be held vicariously liable for the torts of anyone using the car for a “family purpose.”

Question 28

Joint enterprise doctrine

Answer 28

Each member of a group venture is vicariously liable for the torts of the groups driver

Question 29

Negligent entrustment

Answer 29

Can be charged to an owner of a car

Question 30

Who do automobile liability insurance policies typically cover?

Answer 30

Anyone who drives the car with permission, and it covers the driver when driving any car with permission

Question 31

Liability insurance covers

Answer 31

Most defendants in tort suits

Question 32

Can you mention insurance at trial?

Answer 32

Generally, no

Question 33

Each state differs in laws about seizing properties to satisfy legal judgements, what is often exempted

Answer 33

Certain assets [such as a house]

Question 34

What is typically the only way to cover a lawsuit?

Answer 34

Realistically, insurance

Question 35

Insurance does not cover

Answer 35

Intentional torts or punitive damages

Question 36

Typical liability insurance contains two duties, what are they?

Answer 36

• Duty to indemn
• Duty to defend

Up to the policy limits

Question 37

what might an insurance company do because it has an obligation to indemnify a claim only if it falls within the policy coverage?

Answer 37

It may offer to defend a lawsuit under a reservation of rights

Question 38

In California, what duty do insurance companies have?

Answer 38

They must pay an independent attorney up to the policy limits afterward - the insured gets to pick their own attorney

Question 39

Every contract has

Answer 39

an implied covenant of good faith and fair dealing

Question 40

When will an insurance company have breached their covenant of good faith and fair dealing

Answer 40

If it acts in “gross disregard” of insured’s interests.

A deliberate or reckless failure to place their interests on an equal footing(give a case we learned) with its own interests.

Question 41

Give an example of good faith breach (Pavia)

Answer 41

An insurer breaches the covenant of good faith if it rejects an opportunity to settle the claim withing the policy limits after all serious doubts as to the insured’s liability are removed.

Question 42

An insurers ordinary negligence is not

Answer 42

“bad faith” or “gross disregard”

Question 43

Due process clause of U.S constitutions prohibits a state from

Answer 43

depriving a person of life, liberty, or property without due process of law.

Question 44

If a punitive damage award is grossly excessive

Answer 44

it constitutes an arbitrary deprivation of property without fair notice under the Due process clause

Question 45

Factors for deciding excessive punitive damages

Answer 45

Reprehensibility of defendants misconduct
Disparity between actual harm and the punitive damages (assume it should be 9-1 at most, there is a presumption against it otherwise)
The difference between the punitive damages awarded and civil penalties for comparable conduct.

Question 46

Three states of mind in restatement of torts

Answer 46

• Intentional
• Reckless
• negligent

Question 47

What does it meant to be reckless

Answer 47

Knowingly does the risky thing
and;
the burden of taking precaution is slight compared to the risk
and;
failure to adopt the precaution demonstrates the person’s indifference to the risk

Question 48

What is not a defense to an intentional tort? What kinds of damages are available? Tell me about bankruptcy.

Answer 48

Comparative negligence or recklessness.

Punitive.

Liability for intentional tort cannot be discharged in bankruptcy.

Question 49

What is assault?

Answer 49

A physical act of a threatening nature which puts an individual in reasonable fear of imminent bodily harm.

Question 50

What is battery

Answer 50

Battery is an act that was intended to cause, and did cause, harmful or offensive contact upon the body of another.

Question 51

When is contact offensive?

Answer 51

Contact with an object an be offensive, but contact is offensive if it offends a reasonable sense of personal dignity(ordinary sensitivity)

Question 52

False imprisonment

Answer 52

Compelling a person to remain where she does not wish to remain, or compelling a person to go where she does not wish to go by force or threat of force.