Casualty Insurance Basics, Negligence, and Liability Concepts
Negligence
The four elements are duty (owed to foreseeable plaintiffs), breach, proximate cause, and damages. Special doctrines include res ipsa loquitur (the thing speaks for itself - exclusive control plus an accident that does not ordinarily happen without negligence), negligence per se (violation of a safety statute), attractive nuisance, and vicarious liability (employer responsible for employees acting within scope).
Defenses and damages
Contributory negligence bars recovery entirely if the plaintiff is negligent at all - Virginia follows pure contributory negligence, making it a favorite exam topic. Comparative negligence reduces recovery by the plaintiff's percentage. Other defenses: assumption of risk, statute of limitations, and immunity. Damages are special (medical bills, lost wages), general (pain and suffering), and punitive (intentional or reckless conduct).
Liability policy mechanics
Liability policies promise to pay damages because of bodily injury or property damage plus defense costs, which are usually paid in addition to the limit and outside the limit. Limits may be split (per person/per occurrence) or combined single limit. Occurrence policies respond to injury during the policy period; claims-made policies respond to claims reported during the period, subject to a retroactive date, and may require a tail.
Traps
- A liability policy pays third parties; it does not pay the insured's own injury.
- The insurer's duty to defend is broader than the duty to pay.
- Intentional acts are excluded, but the resulting damage may still be covered by other policies (e.g., the employer, not the actor).
Rule of thumb: for any negligence question, first ask whether a duty existed - no duty, no negligence, no coverage.