What History Can Tell Us About the Future of Insurance and Litigation after COVID-19

49 Pages Posted: 21 Dec 2021 Last revised: 27 Feb 2022

See all articles by Kenneth S. Abraham

Kenneth S. Abraham

University of Virginia School of Law

Tom Baker

University of Pennsylvania Carey Law School

Date Written: December 21, 2021

Abstract

This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and insurance law as the historical developments we identify, and that is part of our message. Nonetheless, the COVID-19 pandemic will cause change, and change does not take place from a standing start. The world of insurance and insurance law have a history that places them already in motion when such new developments as a pandemic occur. Understanding how major historical developments influenced and continue to influence insurance can help us to predict the post-COVID future of insurance.

The developments this Article identifies exercised three different forms of influence. First, certain events in the twentieth-century – most notably the rise of modern tort liability and the introduction of automobiles and computers – stimulated the insurance marketplace, by generating entirely new forms of insurance to protect against the risks posed by or brought into being by these events. Second, other developments – including mass tort and pollution liability, climate change, and natural catastrophes -- influenced the evolution of insurance law doctrine in important ways, bringing modern insurance law into existence. Third, modern finance has affected insurance, and in turn insurance coverage, through the "financialization" of insurance. Having chronicled these events and developments and assessed their influence, the Article concludes by identifying some lessons that can be learned from our analysis, and applies them to support our predictions about the post-COVID world of insurance and insurance litigation.

Keywords: tort liability, insurance, COVID

Suggested Citation

Abraham, Kenneth S. and Baker, Tom, What History Can Tell Us About the Future of Insurance and Litigation after COVID-19 (December 21, 2021). DePaul Law Review, 2022, Forthcoming , Virginia Public Law and Legal Theory Research Paper No. 2022-07, U of Penn Law School, Public Law Research Paper No. 22-01, Available at SSRN: https://ssrn.com/abstract=3990981

Kenneth S. Abraham (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3616 (Phone)
434-982-2845 (Fax)

Tom Baker

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2185 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/thbaker/

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