"Choice Auto Insurance": Do Theories of Justice Require Linkage Between Injuries and the Injured?
Jeffrey O'Connell & Christopher J. Robinette   |   1997 U. Ill. L. Rev.

Tort regimes are founded upon a number of different theories of social justice. In this article, the authors examine different theories of corrective justice and join an ongoing discussion about the appropriate relationship between a tort-feasor and an injured victim. As its name suggests, corrective justice is used to restore parties that have experienced a wrongful gain or loss to the status quo ante.

Within this broad category of corrective justice this article focuses on two major schools of thought. The first, the annulment theory, proposed by legal philosopher Jules Coleman, emphasized a distinction between liability and recovery. Under this theory, public policy is best served by eradicating or "annulling" wrongful gains and losses. Accordingly, a tort-feasor is only directly liable to her victim if she receives a wrongful gain and the victim suffers a wrongful loss, as with the typical fraud case. In all other circumstances, the tort-feasor's liability and the victim's recovery are not necessarily connected, and corrective justice is served so long as the victim recovers from some source.

The annulment theory has been roundly criticized by Stephen Perry, among others, who has faulted it for a lack of positive logical support. In its place, Perry argues that there is a correlativity requirement to corrective justice. In contrast to the annulment theory, Perry's theory requires a bond or correlation between the tort-feasor and her victim because of the relationship of each one to a common tortious outcome. Each actor has the innate capacity for self-evaluation (or self-reflection) that ties the actor to the results of her actions. This self-evaluation is central to the concept of personhood and justifies the correlativity requirement of corrective justice.

Concluding the theoretical analysis, the authors concede that the annulment theory has been disproved, by an argument supporting the correlativity requirement. Turning to a concrete situation, the authors compare the current third-party tort liability for automobile accidents with a new Personal Injury Protection (PIP) "choice" auto insurance plan. The PIP plan allows motorists to choose whether to cover themselves by insurance payable with or without fault. Finally, the authors address the central question--whether the PIP plan fulfills the correlativity requirement--and decide that it does because it still calls for the necessary self-evaluation essential to Perry's conception of corrective justice.

* The Samuel H. McCoy II Professor of Law, University of Virginia. B.A. 1951, Dartmouth College; J.D. 1954, Harvard University.

** Member, Virginia Bar. B.A. 1993, College of William and Mary; J.D. 1996, University of Virginia.