The Stories We Tell: Intentional Harm and the Quest for Insurance Funding

Abstract:     
Tort plaintiffs sometimes “underlitigate” – that is, they plead and prove negligence rather than or in addition to intentional tort theories when, absent insurance coverage considerations, the case would be framed solely as an intentional tort claim or would emphasize the intentional tort. This article examines underlitigating, taking into account how it relates to other pieces of the complex tort liability insurance regime. Although underlitigating is undesirable for several reasons, it is to some degree an inevitable result of insurance and tort doctrines that find powerful justification in both efficiency and justice rationales. However, it is possible to minimize underlitigating by modifying certain insurance-related doctrines.

Keywords: liability insurance, intentional tort, tort law, professional responsibility

JEL Classification: K13, K41

working papers series