(23) In short, consistent with the Chicago school but in contrast with the free-market vision, Calabresi admits that there are situations in which rule making can encroach upon individual freedom for the sake of efficiency, accepts that a victim has a right to compensation even in the absence of an identified tort feasor
, and is open to the idea that property rights can be created and managed by government.
It provides that any benefits the claimant receives from an insurance policy, except from a joint tort feasor
or life policy, which duplicates any benefit contained in the award, shall be deducted from the award.
The plaintiff was injured in an auto accident and sued the tort feasor
. A law firm was hired to defend, and it subpoenaed the plaintiff's medical records from a hospital.
The MARAD then asked the Comptroller General whether it could handle future instances of damages by having the tort feasor
place the settlement money into an escrow account that the tort feasor
established and out of which the MARAD could draw funds to pay for repairs.
The shipper, likewise, has exposure, and all entities are going to seek out any potential contributing tort feasor
to bring to the party, if at all possible.
When multiple tort feasors
are responsible for an indivisible injury suffered by the plaintiff, each tort feasor
is jointly and severally liable to the plaintiff for those damages and, thus, may be held individually liable to the injured plaintiff for the entirety of such damages.
If state law does not permit such a claim to be brought, is it advisable, or even required, on the part of the subrogated insurer to pursue a claim internally in order to ensure that responsibility for the loss ultimately is imposed upon the responsible tort feasor
? What interests should be considered, other than those of the property or liability insurer, by the decision whether to pursue such a claim?
When an insured has a large self-insured retention or deductible, an issue may arise regarding whether the insurer can settle its claim against the tort feasor
, leaving the insured to proceed against the tort feasor
for any uninsured losses.
This is subrogation, transferring the right of legal restitution from the insured to the insurer to pursue the wrongdoer or tort feasor
. Businesses and commercial entities, as well as their insurers, might have comparable tights of action, just as would any individual.
* Failure to pursue subrogation against third parties tort feasors
Adjusters also may lack the persistence to pursue subrogation or be easily put off by disclaimers of liability on the part of prospective tort feasors
or their insurance carriers.
Historically, punitive damages (sometimes called exemplary damages) were awarded to punish tort feasors
for intentional actions and to deter others from engaging in similar conduct.