Personal Injury Legal Advisors in Phoenix, AZ
Classifying Tort Law
Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses how tort law is classified.
H3: Tort Law Classified by the Tortfeasor's Mental State
In a sense, torts are certain general standards of civil conduct. As a practical matter, however, torts are nothing more than a collection of theories for suing people for money.
A person who commits a tort is known as a tortfeasor. Torts can be classified into four categories based on the kind of mental state, if any, that is required on the part of the tortfeasor to commit the tort.
The first category of torts is intentional torts. An intentional tort is a tort in which the tortfeasor acts intentionally to cause the victim harm. Examples of intentional torts include assault, battery, false imprisonment, and intentional infliction of emotional distress.
The second category of torts is unintentional torts. This "category" is really one tort, the tort of negligence, in which the tortfeasor acts unintentionally, but nonetheless improperly, to cause the victim harm. Medical malpractice, for example, is the tort of negligence applied to the professional acts of medical doctors, nurses, and other medical professionals. Poor driving causing an automobile accident is another example of the tort of negligence.
The third category of torts is strict liability torts. A strict liability tort is a tort in which the tortfeasor acts to cause the victim of harm, and it is irrelevant whether or not the tortfeasor acted intentionally to cause the victim harm. Examples of strict liability includes the harm caused by wild animals and inherently dangerous products.
The fourth category of torts is torts that may be committed either intentionally or unintentionally. These are torts in which the tortfeasor acts either intentionally or unintentionally, but nonetheless improperly, to cause the victim harm. Examples of torts that may be committed either intentionally or unintentionally include defamation and invasion of privacy.
H3: Malfeasance, Misfeasance, and Nonfeasance
Torts may also be classified by the nature of the tortfeasor's act.
Malfeasance is an act that is illegal or wrong. Misfeasance is a legal act done in a wrongful manner. Nonfeasance is not acting when one is required to act.
A declaratory judgment action may be brought by a plaintiff who is unsure of his legal right to recover from a defendant. This type of action is available to both an insured and an insurer to determine each party's rights, duties, obligations, and liabilities under an insurance policy.
Why seek declaratory judgment
An insured may bring the action to compel an insurer to provide coverage for a loss or to defend the insured in an underlying claim, whereas the insurer may bring the action seeking a declaration that it is not required to provide coverage or to defend the insured.
When to seek declaratory judgment
A declaratory judgment action must be ripe for consideration. An action is ripe for consideration if it is so far advanced that nothing remains for the court to do but to render a judgment.
An insurer may argue that the declaratory judgment action is not ripe for consideration if the underlying claim is unresolved. Some courts hold that a declaratory judgment action can be determined without considering the facts of the underlying claim, especially if the issue in the declaratory judgment action is whether the insurer has the duty to defend the insured in the underlying claim. Other courts, however, hold that declaratory judgment actions are not ripe if the underlying claim is unresolved.
An issue with respect to excess insurance arises if the insured brings a declaratory judgment action against an excess insurer, which asserts that the policy limits of the primary policy must be exhausted before a claim can be made under the excess policy. Generally, courts find that the potential for the exhaustion of the primary limits presents a ripe claim against the excess carrier.
Effect of declaratory judgment
A declaratory judgment by a court has the effect of being a final judgment of the parties' rights and liabilities.