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Torts
University of Denver School of Law
Russell, Thomas D.

TORTS
RUSSELL
SPRING 2012
 
 
I.     Damages
a.    Types of Damages
                             i.    Nominal
1.    Symbolic aware, often $1, given to the plaintiff when liability for a tort is established, but no actual harm occurred or is proven with sufficient certainty
a.    Trespass Suits
                                                                             i.    A nominal amount is awarded to establish who owns the property
                            ii.    Compensatory
1.    Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him
a.    To make the plaintiff whole
2.    Types of Compensatory
a.    Pecuniary “specials” – easiest and do first
                                                                             i.    Can put a number on (get a receipt)
                                                                            ii.    Medicals (first)
                                                                          iii.    lost wages
1.    if you did lose them, and/or wages you could have been making),
                                                                          iv.    Miscellaneous
1.     (elastic shoe laces, heating pads, modification to house for wheelchair), property
2.    Property
a.    Required to give you the money to make you whole, but not required to use the money to fix the damage
                                                                                                                             i.    Diminished value of property, it doesn’t make you entirely whole to fix the damage (CarFax)
                                                                                                                            ii.    Don’t pay for preexisting damages
b.    Non-Pecuniary “generals”
                                                                             i.    Stuff you can’t put a price on
1.    pain and suffering – if you unconscious than no payment b/c not feeling pain
                                                                            ii.    Pain and suffering, discomfort, fears, anxiety, stress, mental and emotional distress, embarrassment (people looking at privates while trying to analyze the burns)
                                                                          iii.    Impairment
1.    Shape into this category when you can (no sexual function, loss of smell and taste)
                                                                          iv.    Loss of enjoyment of life – what brings you pleasure
1.    Things you can’t do anymore: snowboarding/running
c.     Past and Future Issue
                                                                             i.    Past – time of the injury (medical at that time – ER visit)
                                                                            ii.    Future – what its going to bring
1.    Expert testimony – saying what they need
2.    Estimates – based on preponderance
a.    Predictions:
                                                                                                                             i.     how long people are going to live
                                                                                                                            ii.    amount of pain
                          iii.    Punitive
1.    To punish and deter particular egregious things (to do a bad bad thing)
a.    Discretionary and awarded when a tort is committed with malice
                                                                             i.    Distinction – sometimes given to plaintiff and sometimes shared with state
b.    bring about a useful change that can be beneficial by punishing the tortfeasor – McDonalds bringing down coffee temps
2.    Proof
a.    must show that defendant did a very bad thing
                                                                             i.    reckless or beyond
                                                                            ii.    an intentional act: intentionally ignored known risks
b.    prove punitive damages beyond a reasonable doubt
c.     show that they knew they were engaged in behavior that was likely to cause harm
3.    Respondeat Superior
a.    Indicates punitive damages may be levied by employer b/c they acted as an agent of the company
4.    Amount
a.    Depends on the size of the defendant
5.    Attorney General theory of punitive damages
a.    create a legal entrepreneur theory for lawyers to take a case on special in order to seek punitive damages for the good
                                                                             i.    when you get things changed in the market via punishing someone
6.    Exam Answer
a.    Suggest an amount to jury that we can keep and won’t be appealed
                                                                             i.    Insurance concerns – doesn’t pay punitive damages
1.    tell a story that fits the policy
b.    Collateral Source Rule
                             i.    The plaintiffs recovery against the defendant is not effected by compensation received for the loss from other sources
1.    Not disclosed to the jury (can’t tell jury that someone has insurance)
                            ii.    if injured person has some collateral source to pay for injuries
1.    does not benefit the tortfeasor, damage payouts are the same (not reduced by insurance)
a.    tortfeasor don’t get the benefit of your collateral sources (they didn’t pay the premiums)
                                                                             i.    fundraisers (gifts) are not a collateral source – its deducted from the damages amount (mine as well give it to the tortfeasor)
                                                                            ii.    Medicare is a collateral source and reimbursement is not deducted – you pay premiums for Medicare
1.    50K bill, 30k paid (medicare), 20K is written off
a.    ask for the full 50K, b/c the 20k was a collateral benefit which she paid for in medicare
                                                                          iii.    Medicaid is not a collateral source and is deducted – you don’t pay premiums
1.    50K bill, 22k paid, 28K written off
a.    want to ask for 50, but won’t, ask for the 22k b/c 28 was benefit from aid
c.     Subrogation
                             i.    Plaintiff receives monetary damages from medical bills that were fully paid by insurance – insurance companies want their money back and the subrogation clause gives it to them
1.    The insurance company wants to get paid back when you get paid back
                            ii.    Two of Subrogation
1.    When the insurance company sues for the insureds
a.    The insurance company will stand in your shoes and sue the tortfeasor
2.    Clause – if anyone else pays out the insured needs to pay back insurance company
d.    Misc/Grab Bag – Things to know about Compensatory
                             i.    Look at notes for other things to consider (Def

                                                   iii.    Usually always have to defend, unless outside the policy coverage (unintentional STD transfer)
1.    Intentional Act Exclusion – fight to get the act inside the policy
2.    Unsure: they have to defend, but may not have to pay
a.    Discrepancy between whether in policy or not
b.    Determined during the trial whether the act is within policy
                                                                          iv.    Conflict of Interest
1.    Attorney represents the client (issue is who is the real clien – Ins. Co or Insured)
a.    Supposed to protect isured
2.    If conflict, obtain another attorney separate from Ins. Co. representative
b.    Duty to Indemnify: due to pay
                                                                             i.    If you lose in a lawsuit, they will pay the money you lost
1.    Only up the policy coverage
a.    Unless: acted not in good faith
c.     Fiduciary Duty
                                                                             i.    Interpret the language of the policy against the insurance Co. because they drafted the policy and they have a fiduciary duty to their insured
d.    Duty to Settle
                                                                             i.    Duty to act reasonably in settlements
1.    Doesn’t mean they must accept demands within policy limits
2.    Can’t ask to settle for more than the policy limits
3.    Can’t ask insured to contribute to settlement within policy limits
                                                                            ii.    Duty to settle does not exist in the policy
                                                                          iii.    Required to protect insured’s interest which is a judicially created obligation on Ins. Co.
                                                                          iv.    Once the insurance company refuses the settlement within limits and then loses the settlement for more than the policy, the insurance company pays all of it
1.    Plaintiff will want to push the fact that Ins. Co. acted in bad faith/unreasonably so they have to pay the whole claim
                                                                            v.    Bashor Agreement
1.    After judgment for the plaintiff
2.    Exchange take place: the plaintiff agrees not to seek the judgment awarded in exchange for defendant’s agreement not to appeal, then plaintiff will stand in the shoes of insured (defendant) to sue insurance company
e.    Trouble Damages
                                                                             i.    If Ins. Co. is found to have acted in bad faith, Ins. Co. may have to pay double/triple the amount of the judgment
1.    Statutory punitive – won’t get normal punitive damages on top