Claims on the Tracks

52 Pages Posted: 6 Jun 2024

See all articles by Thomas D. Russell

Thomas D. Russell

University of Denver Sturm College of Law; University of Florida Levin College of Law; Washington University in St. Louis - Washington University in St. Louis - School of Law

Date Written: June 04, 2024

Abstract

Using original empirical evidence, this Article challenges the prevailing conception of a “dispute pyramid”—a smooth process of attrition from personal injury through claiming to litigation. Instead, I argue for the metaphor of a “salmon run,” with huge drop-offs from the levels of injuries to claims and, especially, to litigation.

As support for the proposed model, the Article analyzes the claims department records of Alameda County’s principal street railway company during the early twentieth century. Using data drawn from archival records of the street railway company’s attorney, Harmon Bell, the Article examines the operation of the street railway’s claims department in detail. This never-before-assembled data reveals the hidden operation of the systems of claims compensation within an industry that injured approximately one in 331 urban Americans in 1907.

For a sense of the street scene, see this video of San Francisco in April 1906: https://www.youtube.com/watch?v=8YRbMMqj0qw

The assembled data include all the personal injury suits filed in Alameda County’s Superior Court, all appellate cases involving the street railway company, and other sources concerning the street railway industry. In particular, the Article describes the relationship between the amount paid through the claims department and the amount paid in Superior Court judgments and costs. The average payments that successful claimants received were tiny, averaging just $127.32 in the claims department.

This Article presents a series of research and methodological critiques. No scholar has assembled a universe of data linking business operations, injuries, and claims to litigation and appeals. Empirical researchers who seek to understand compensation systems should collect data on the operation of claims departments. Today, such studies must include insurance claims departments. If I could find these data from more than a century ago, researchers today could do likewise.

Second, the common idea that injured claimants bargain in the shadow of the law is naïve. The claims department casts its own, longer shadow than the trial court.

The final critique focuses on anyone who relies upon reported appellate cases as representations of any realm below. Appellate cases, especially those in casebooks, misrepresent the trial court and, more dramatically, misrepresent the empirical world of the claims department and business operation.

Keywords: personal injury, torts, legal history, claims department, claims, insurance, litigation, business, economic history, empirical research, quantitative, archival, Posner, Schwartz, Willard Hurst, history, dispute pyramid, salmon run, disputes, settlement, wrongful death, streetcars, trolley, Oakland, California, bargaining, shadow of law

JEL Classification: K13, N21, N71, N81, L92, R41, N91

Suggested Citation

Russell, Thomas David, Claims on the Tracks (June 04, 2024). Available at SSRN: https://ssrn.com/abstract=4854379 or http://dx.doi.org/10.2139/ssrn.4854379

Thomas David Russell (Contact Author)

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University of Florida Levin College of Law ( email )

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Washington University in St. Louis - Washington University in St. Louis - School of Law ( email )

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HOME PAGE: http://law.wustl.edu/faculty-staff-directory/profile/tom-russell/

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