Recent news included a story about an aunt who sued her nephew for an extra assertive hug that broke the aunt’s wrist.
When the aunt faced the media’s public shame for suing her 12-year-old nephew, the aunt’s attorneys explained that the purpose of the lawsuit was not to recover any money from the nephew. Rather, the aunt sued the nephew in order to get the nephew’s insurance company to pay for the aunt’s medical bills.
Why in the world can’t the aunt just sue the insurance company directly? There is an important reason that the aunt could not sue the insurance company directly, and that reason is tort law.
Before I started law school, I thought torts were donut-like pies. However, my classmates and I soon learned that donut-like pies were tarts, not torts. Torts are certain legally proven wrongful acts, infringements of rights or other harms that are done by one or more people to someone else. Torts include things like assault, negligence, slander and trespass.
To prove any tort, a harmed person must prove at least three things. First, the harm-doer must have had a duty to act or not act in a certain way. Second, the harm-doer must have failed to perform that duty. Third, there must be actual harm that resulted from the harm-doer’s lack of performance of the duty. Attorneys usually recite the three requirements as duty, breach and damages.
If a harmed person can prove the three components of a tort, the harmed person may be entitled to money to compensate for the harm (compensatory damages) or money to deter other people from violating the same duty (punitive damages).
Compensatory or punitive damages owed from torts will often be the responsibility of others who agreed to pay if the tort happened. Those others who agree to pay if the tort happens are insurance companies.
Lawsuits involving torts are designed to determine whether the three components of a tort are met. Lawsuits involving torts do not deal with who should pay until at least duty, breach and damages are proved by the harmed person. This process is designed to make the legal process efficient. In other words, the legal system wants to know if money is owed before arguing about who should pay.
Therefore, the harm-doer and the allegedly harmed person are usually the only parties at the beginning of a tort lawsuit. Insurance companies often hire attorneys to defend the alleged harm-doer. However, an insurance company does not usually officially come into a tort case as a party until a compensable tort is proven.
In the case of the aunt who sued her nephew, a jury had to first decide whether the aunt satisfied the three tort requirements: duty, breach and resulting damages. In the aunt’s case, the jury decided that the three tort components were not proved by the aunt. Had the aunt proved a tort and had the insurance company not paid, only then could the aunt have potentially sued the insurance company directly.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.