What History Can Tell Us About the Future of Insurance and Litigation after COVID-19
This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and insurance law as the historical developments we identify, and that is part of our message. Nonetheless, the COVID-19 pandemic will cause change, and change does not take place from a standing start. The world of insurance and insurance law have a history that places them already in motion when such new developments as a pandemic occur. Understanding how major historical developments influenced and continue to influence insurance can help us to predict the post-COVID future of insurance. The developments this Article identifies exercised three different forms of influence. First, certain events in the twentieth-century – most notably the rise of modern tort liability and the introduction of automobiles and computers – stimulated the insurance marketplace, by generating entirely new forms of insurance to protect against the risks posed by or brought into being by these events. Second, other developments – including mass tort and pollution liability, climate change, and natural catastrophes -- influenced the evolution of insurance law doctrine in important ways, bringing modern insurance law into existence. Third, modern finance has affected insurance, and in turn insurance coverage, through the "financialization" of insurance. Having chronicled these events and developments and assessed their influence, the Article concludes by identifying some lessons that can be learned from our analysis, and applies them to support our predictions about the post-COVID world of insurance and insurance litigation.