Man, God and the Serbonian Bog: the Evolution of Accidental Death Insurance

Abstract:     
The issue is, what is an accident? More precisely, when is death accidental under insurance policies specifically written for such events? For a century and a half, courts and underwriters have struggled to answer what was recently described as "one of the more philosophically complex simple questions." It turns out that there is an answer to this question, though finding it requires that we sift through the strange history of accidental death insurance. This history itself contains several stories. The first is the social response to a new, often destructive technology that emerged in the first half of the nineteenth century. That technology rapidly changed the face of society, but the law failed to evolve quickly enough to keep pace. Instead, it fell to the still-young institution of private insurance to provide meaningful compensation for many who were killed or maimed in the name of progress.
Woven into this history is another tale, that of the tension between form and function in the law. To the discredit of many insurers, accident policies were often written so as to frustrate, rather than fulfill, the legitimate expectations of policyholders unschooled in fine linguistic distinctions. Of course, it is now accepted that courts construing insurance contracts do so with an eye toward such expectations, but it is surprising to discover that this process was well underway by the 1850s, decades before the realist revolution of the twentieth century. This Article documents the development of these and other extracontractual norms in accident insurance law.The results of this study are then synthesized into a conceptual framework for understanding accident insurance claims.

Number of Pages in PDF File: 178

Accepted Paper Series