Catherine Sharkey on Tort Liability and Insurance
October 01, 2024
Photo LTR: Professor Erika Chamberlain, Professor Catherine Sharkey, Professor Jason Neyers, Professor Stephen Pitel
On September 24, 2024, Catherine Sharkey, the Segal Family Professor of Regulatory Law and Policy at NYU School of Law, delivered the first Tort Law Research Group Public Lecture of the 2024-25 academic year.
In her lecture entitled "Tort Liability and Insurance" Professor Sharkey emphasized the critical role of liability insurance in shaping tort law and discussed how insurance affects every phase of a tort claim, including whether a case is filed and how it moves through the litigation process. The relationship between tort and insurance, she noted, is often overlooked, despite empirical evidence that the vast majority of tort claims in the United States are covered by insurance. Through examples from her research and collaborative work with Kenneth Abraham (University of Virginia), she explained how insurance considerations drive decisions about tort duties, settlements and appeals.
Professor Sharkey also examined whether insurability should influence whether courts expand or limit tort duties. She argued that courts should consider whether a particular risk is insurable when determining the scope of tort law. She also highlighted a landmark California asbestos case, that extended an employer's duty to prevent the spread of asbestos fibers to employees' households, in which, in her view the availability of insurance played a pivotal role in the court's decision.
The lecture also touched on the broader theoretical implications for tort law. Professor Sharkey critiqued tort scholars, including civil recourse and corrective justice theorists, for underestimating insurance’s importance. She argued that many of the wrongs addressed by tort law only became actionable because they were insurable. By failing to account for this, these scholars miss a key element of how tort law functions in practice.
Finally, Professor Sharkey discussed how liability insurance could be better incorporated into judicial decision-making. She highlighted the need for courts to gather empirical evidence about insurability, rather than engaging in armchair empiricism. While acknowledging the challenges—such as potential "battles of the experts" over insurance details—she concluded that courts must address the realities of insurance to render more informed and normatively appealing decisions.
Professor Sharkey is one of the United States’ leading authorities on tort law. She has published more than fifty articles, essays and book chapters in the field and is co-author with Richard Epstein of Cases and Materials on Torts (12th edition, 2020) and co-editor with Saul Levmore of Foundations of Tort Law (2nd edition, 2009). She is also an elected member of the American Law Institute and an adviser to the Restatement Third, Torts: Liability for Economic Harm and Restatement Third, Torts: Remedies projects.
The TLRG’s Public Lectures for the 2024-25 academic year are generously sponsored by the London insurance defence law firm Shillington McCall LLP, continuing its long-standing support for the lecture series.
