Catastrophic Damages: Liability and Insurance Chapter First Online: 25 November 2011 Abstract
A castastrophe is defined as an event, sudden and unexpected, that causes devastating harm to a large number of victims, triggering the need for significant and coordinated public response. In many cases, a political decision qualifies the event as catastrophic. From an insurance standpoint, a catastrophe is considered a cumulative risk with low frequency and high intensity, making these risks very costly to insure. Insurance companies may insure against such harms by requiring payment of supplemental premiums. Some risks are excluded from coverage. These include natural disasters, like earthquakes and floods, and man-made ones, like terrorism and nuclear accidents. The legal systems covered by this report handle insurance coverage of catastrophes in three different ways: private contract, default rule excluding catastrophic risk from private contract unless otherwise agreed, or imposition of a legal obligation on insurers to cover certain risks, particularly those that are historically recurrent. National compensation funds for victims also play a role in redressing catastrophic damage. Finally, the law of torts, although better equipped to address cases of individual injury, nonetheless has a role to play under principles of negligence or intentional torts, as well as strict liability for abnormally dangerous activities.
Keywords Private Insurance Insurance Policy Insurance Contract Strict Liability Catastrophic Risk
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
II.A.1, Les dommages catastrophiques – responsabilité civile et assurances.
Appendix Questionnaire on Catastrophic Harms I. Harms and catastrophes: defining “catastrophic harms” 1.
May we ask you, please, to provide us with a generic definition of “catastrophic harms” well suited to your own legal culture?
II. Catastrophic harms and statutory law 2.
Please specify the main legal requirements present in your own legal systems to construct the concept of legally relevant catastrophic harms.
III. Insurance System 3.
Is an event of catastrophic harm, which may severely affect the company or eliminate it, contemplated somehow by insurance policies, or even by statutory law?
Does your national legal system distinguish between damages covered by insurance policies and those that are legally excluded?
Even if some catastrophic damages may be legally covered by insurance policies, which are the events more commonly excluded by standard forms of insurance policies in your own jurisdiction?
Does your country have any legally established fund covering, among others, extraordinary risks? If so, or if there is more than one, please list the most relevant three, adding short comments about contributors, amount of contribution, management and coverage.
How do the levels of risk concentration and risk magnitude translate into insurance policies and rates? When answering, please consider which levels make reinsurance or coinsurance a good practice, and the existence of compulsory reinsurance or coinsurance or similar meaningful features you think may be of interest.
How does your system distinguish between sudden accidents and long term risks? If so, please, provide us with a very short list of statutory or case law defining latency and distinguishing between sudden accidents and long term risks.
Please describe new statutes, if any, in your legal systems triggered by global catastrophes, as the above-mentioned ones, and any new statutes driven by national or local events?
Was legal change triggered by case law itself? If so, please cite the leading cases?
IV. The Law of Torts 11.
Do “catastrophic harms” generate criminal, administrative, civil or labor liability? If so, what are the main legal sources or the leading case law?
Do administrative fines or criminal punishment preempt civil claims?
Which standard of liability governs catastrophic harm claims?
Are co-injurers jointly, severally or joint and severally liable? If there is a joint and several liability standard, is there a right to contribution and, if so, how is it regulated?
Are class actions regulated in your procedural system? If so, please provide brief details of their main features?
May the victims or their estates sue the insurance company directly (direct action)? If so, please cite the relevant statute.
According to the Collateral Source Rule and if the law does not provide otherwise, any amount of compensation paid to the victim or their estates is not to be taken into account to decrease the liability of the injurer. How is this rule applied in your legal system?
Is the State of the Art Defense (Risk of Development) regulated by your own jurisdiction? Is it generally accepted as a defense? Is it excluded for some economic activities or public sectors?
V. Regulatory Agencies and Liability 19.
If victims have a tort claim, must they wait until a regulatory agency decision is taken or reviewed, or can victims merge their tort claims with general administrative proceedings? If so, please provide a short list of relevant legal sources and case law.
Is there a general preemption clause in your own legal system? Are there specific preemption clauses?
List of National Reporters Copyright information
© Springer Science+Business Media B.V. 2012