Intentional Tort Remedies Grounded in Civil Recourse Theory: How Torts Can Fulfill its Promises Through a New Kind of Insurance

Jennifer Wriggins

The U.S. torts system features a large gap between intentional tort doctrine and actual remedies for intentional torts. Doctrine pronounces many injuries tortious and compensable—intentional torts including domestic violence and sexual violence are widespread—yet civil lawsuits for these torts continue to be rare. The reasons for this gap are not a mystery; they all relate to money. Merle Weiner’s important and well-researched article takes effective aim at this situation, meshing insights from civil recourse theory about the purpose of the torts system with empirical information about what survivors of these torts actually want (hint: it’s mostly not money). She uses these insights to shape the idea of a new type of insurance, ‘civil recourse insurance,’ that would much better support the purposes of the tort system and survivors’ goals than the current torts enforcement structure. Civil recourse insurance would be a type of legal expense insurance¹ and would provide a policyholder with legal representation when a covered incident occurs.

The article takes civil recourse theory seriously in its assertions that the overarching purpose of tort law is to further accountability, empowerment, respect, deterrence, and even at times revenge, rather than to provide financial compensation.² She applies these theses to the situation of domestic violence and sexual abuse survivors. For the most part, victims of these wrongs do not seek financial compensation. Instead, they more often seek accountability, empowerment, recognition, respect and deterrence. These kinds of remedies are not provided by the torts system as it exists because it is enforced by lawyers who seek financial compensation under contingent fee agreements requiring either insurance coverage or assets to make litigation worthwhile. Insurance exclusions for intentional acts, coupled with judgment-proof defendants, make tort litigation for these wrongs impracticable in our current system. But legal actions seeking accountability, empowerment, respect and deterrence would be possible under Weiner’s proposed ‘civil recourse insurance.’ The policyholder may want to file a lawsuit even if it will be uncollectible; may want assistance participating in the criminal justice system; or may want to have her or his harm recognized in a way that acknowledges wrongdoing. This new kind of insurance, modeled on a popular and successful type of insurance held by 40% of German households, would provide insureds with the resources to pursue these forms of recourse.

Scholars including me, Rick Swedloff, and others have proposed solutions to the civil justice gap in tort law when it comes to remedies for intentional torts.³ Weiner shows why my proposal of liability insurance covering intentional acts will likely never work and why Swedloff’s proposal for loss insurance also falls short. Her imaginative and well-thought out proposal responds to and rectifies the shortcomings of the prior proposals.

The heart of the article is a proposal for civil recourse insurance which would be available for individuals to buy. It is a type of first party insurance but unlike traditional first party insurance it only covers the cost of hiring an attorney. She argues persuasively that it would be a better way to guarantee access to courts than the current system of contingent fees. The insurance would increase the odds that the survivor will get what she wants from the action; this may lead to deterrence (both individual and general) as well as to positive developments in tort law. Weiner proposes having the insurance cover all intentional torts to the person in order to create a balanced risk pool and avoid adverse selection. And the attorney would be paid by the hour rather than by a contingent fee. She argues carefully that such insurance could be commercially viable. Weiner makes her calculations clear and shows that under certain plausible assumptions civil recourse insurance could cost as little as between $94 a year and $356 a year. She addresses adverse selection and moral hazard thoughtfully and acknowledges important differences between her proposal and the existing German model as well as U.S. prepaid legal services plans.

One of her many useful contributions is to highlight and propose a solution to the ‘conundrum’ that is also observed by civil recourse scholars: “if tort law is designed to empower victims, why does it make the task of responding to wrongs so difficult and cumbersome?”⁴ And why does it leave enforcement to private contingent fee lawyers when the damages remedy so plainly often does not fit the wrong?

The final section of the article proposes state support of civil recourse insurance if the insurance product turns out to not be a financially viable model without government assistance. Civil recourse theory supports government intervention, she asserts: “The state’s creation of private rights of action and its provision of a neutral decisionmaker is simply insufficient if its laws, and its failure to adopt other laws, makes access to the system practically impossible.”⁵ The existing barriers to tort enforcement and its narrow focus on financial compensation make the tort system “but a hollow shell for civil recourse.”⁶ Therefore, based on civil recourse theory, the government should offer civil recourse insurance or support it through interventions such as vouchers, federal insurance, reinsurance or mandatory insurance. Determining what market interventions really make sense for government involvement in insurance is very tricky. But that and other details can be left for another day; this article is a huge achievement and the civil resource insurance proposal is ripe for serious consideration.

1. She notes it “would be a new kind of prepaid legal plan (also known as a legal services plan)” a widely popular product in the U.S. 62 Ariz. L. Rev. at 962.
2. See, e.g. John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introduction to U.S. Law: Torts 62-69 (2010).
3. Jennifer Wriggins, Domestic Violence Torts, 75 S. Cal. L. Rev. 121 (2001), Rick Swedloff, Uncompensated Torts, 28 Ga. St. U. L. Rev. 721 (2013).
4. John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introduction to U.S. Law: Torts at 65-66.
5. 62 Ariz L. Rev. at 1059.
6. Id. at 1060.