discussed below (219)--joint
tortfeasors may not generally avail
type of insurance that would indemnify purchasers for injuries caused by negligent uninsured motorists." (94) In doing so, UM coverage allows "a person injured by an uninsured motorist [to] be compensated by her own insurer in an amount equal to what the uninsured
tortfeasor's liability insurer would have paid if the
tortfeasor had carried liability insurance." (95)
(3) to prevent
tortfeasors from benefitting from tort victims'
Generally speaking, three separate principles emerge from the court's review of case law: (1) underinsured-motorist coverage should place the insured in the same position he or she would have occupied if the
tortfeasor had carried insurance in the same amount as the insured; (2) underinsured-motorist coverage exists to fill the gap between the amount received from the
tortfeasor's insurance and the amount of the insured's underinsured-motorist policy limit; and (3) underinsured-motorist coverage is not intended to allow the insured to recover amounts from the insurer over and above the insured's underinsured-motorist policy limit.
tortfeasor to be exonerated for its liability is poor social policy, for
McLachlin C.J.'s framework from Clements means that where a plaintiff seeks to rely on the material contribution to risk test, that plaintiff must establish "global but for" in regard to multiple
tortfeasors (26) and an impossibility of establishing individual "but for" through no fault of her own.
(16) The rule strives to make an injured party financially whole by holding a defendant liable for damages and giving the benefit of a windfall to a plaintiff in a tort action instead of to the
tortfeasor. (17) Delaware previously applied the collateral source rule in medical negligence cases when determining reasonable medical expenses in several contexts, but had not determined the issue in the context of Medicare payments prior to the Stayton decision.
Since
tortfeasors such as petrochemical plant operators are undoubtedly much more influential than victims with respect to technological accident risks that could lead to man-made disasters, there are strong arguments in favor of applying a strict liability rule to such ultra-hazardous activities.
The early common law held joint
tortfeasors jointly and severally liable for any indivisible injury their joint negligence caused a plaintiff to suffer.
While judges have argued that "deterrence requires a perception by others that the
tortfeasor is being punished," (16) it seems more accurate to say that "deterrence requires a perception by others that they will be punished if they engage in similar misconduct." This latter message can be conveyed by posthumous punitive damages, as long as potential future
tortfeasors expect to live after committing the tort.
The Court, in a recent opinion, has begun to rely on the idea that subrogation achieves an important result by holding
tortfeasors responsible for their actions.3
(8) Additionally, health insurers began adding subrogation clauses in an attempt to get a share of the damages paid to victims by
tortfeasors after the first reported judicial decision addressed the propriety of health insurance subrogation in 1982.
