Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 110

Insurers have –as threatened during the RLLI drafting process– taken their fight against the RLLI to state legislatures, introducing anti-RLLI resolutions or bills in roughly a dozen states (among them Arizona Arkansas, Idaho, Indiana, Kentucky, Louisiana, Michigan, North Dakota, Ohio, and Texas)108. These efforts have succeeded in producing not only resolutions expressing disapproval of the RLLI but also in actual laws purporting to restrict judicial consideration of the RLLI. For example, in Michigan state courts “shall not apply a principle from the American Law Institute’s ‘Restatement of the Law of Liability Insurance’ in ruling on an issue in the case unless the principle is clearly expressed in a statute of this state, the common law, or case law precedent in this state109”. In North Dakota, no “person” can “apply, give weight to, or afford recognition to, the American Law Institute’s ‘Restatement of the Law, Liability Insurance’ as an authoritative reference regarding interpretation of North Dakota laws, rules, and principles of insurance law110”. Ohio’s legislature declared that the RLLI “does not constitute the public policy of this state and is not an appropriate subject of notice111”. A typical resolution states that the RLLI is “inconsistent” with the law of the state in question and admonishes courts not to rely on the RLLI an “authoritative reference regarding established rules and principles of law112”.

The level of “scrutiny” applied to anti-RLLI legislation is something less than brief in favor of state legislatures. Anti-RLLI legislation, when successful, is often enacted with minimal examination, which become all the more troubling in light of the language of the resolutions and bills, which makes broad statements about the content of a 50-section, 400-page document that the legislators, including sponsors, have obviously never read. Ohio, for example, enacted its anti-RLLI law as a floor amendment to a highway naming and appropriations bill. There were no analyses by legislative staff, no committee hearings and apparently no floor discussions of the proposal. Where hearings have been held, they have been limited in time and scope and appear to lack professional staff input. Although witnesses are heard, the process has a rushed feel and the votes appear to be along straight party lines. Republicans appear uniformly in favor of anti-RLLI legislation Democrats push back, at least to the point of questioning the wisdom of an edict purporting to control judicial decisionmaking even if not taking a pro-RLLI position113.

Whether the trend continues hinges both on the success of interest group lobbing and whether groups like the ALI will continue to be willing to embark on potentially controversial projects that may foment lobbying attacks on the organization. This makes the stakes significant regarding the RLLI. Although insurers have not dealt a death blow to the RLLI, the ALI, or the concept of neutral soft law developed by experts, it is not for lack of effort. Unless attaining total victory in the more deliberative realm of scholarship, adjudication, or policymaking, insurers appear to be seeking victory via the brute force of legislative clout. In the past, disagreements over Restatement provisions have largely been fought out in the courts or academic literature, both of which constitute better forums for deliberate, reflective, less partisan assessment than harried legislative sessions lacking sufficient time for education of voting members and reflection on the policy choices at issue.

Contrast this with an effort to legislatively contradict or bar the use of a Restatement. The typical state legislature has only a few attorneys in the body, most of whom will have relatively little expertise in a particular area of law such as insurance. The overworked legislative staff will be approached by lobbyists well-armed with “facts” spun in the manner most favorable to the self-interested, interest group. The interest group will often have provided campaign contributions or other support to members in the past and increase or decrease that support in the future based on the member’s support for the group’s anti-ALI efforts. The interest group may have the support of a powerful political organization, perhaps even the member’s own political party114. Because of the press of legislative business and longstanding structural defects of the legislative process in many (probably most) states, those who disagree with the interest groups are unlikely to be heard, even if they have obviously greater expertise and neutrality than the interest group115.

Legislative efforts to bar or overrule Restatements or particular Restatement provisions are a bad way to conduct legal policymaking. Far better to follow the traditional approach of allowing courts on a case-by-case basis to determine the fate of Restatement provisions. Those that make rational sense and good legal policy will enjoy judicial favor. Those that do not will wither in application, be revised, or both. But current attacks on the RLLI suggest that insurers will continue to wage war via brute force when they cannot prevail in a more cerebral and reflective analytical environment.

There is more than a little about which to be distressed when viewing the insurance industry attack on the RLLI. First, it was a blatant effort to politicize a process that historically was marked by deliberation relatively unmoored from special interests. Second, by attempting to circumvent the traditional common law methodology that absorbs, rejects or modifies soft law, insurers attempted to supplant a process that has worked well with one that surely will provide for less reflection about law and policy as well as greater dominance by the nation’s most powerful socioeconomic interest groups – regardless of the correctness of their position. Third, the insurer attack sowed the legal wind with disinformation that will impede careful analysis of the RLLI positions (and perhaps those of other Restatements) by courts, commentators and policy makers. Fourth, by inducing some attorneys to depart from the “check your clients at the door” traditional ethos of ALI, insurer allies (at least those being compensated for their work opposing the RLLI or using it as a means of business development or feel compelled by law firm client relations politics to join the attack), the insurer assault has eroded the foundation of what has for nearly a century been a most useful American legal institution. Fifth, in advancing insurer client interests in partisan fashion, some insurer advocates have in (at least in my view) violated rules and norms of conflict of interest by seeking Restatement provisions favorable to insurers that will, if adopted, hurt policyholder clients of the same law firms.