The lead article in the most recent issue of the American Bar Association Tort Trial and Insurance Practice Section’s Law Journal Is “A Tort Without a Cause: Section 12 of the Restatement of the Law, Liability Insurance,” by Kim V. Marrkand, Esq. This Restatement and its Section 12 have been the subject of considerable controversy during its development over a number of years.
The American Law Institute (ALI) voted to approve the Restatement of the Law of Liability Insurance in 2018 after about eight years of drafting. Historically, the ALI’s Restatements of law were restatements of existing law. Some representatives of insurers have felt that some of the provisions, including section 12, go beyond restating. Attorney Marrkand’s article is a scholarly piece that cogently sets forth such a criticism.
On receipt, Law Journal articles are edited by an assigned member of its Editorial Board. Ms. Marrkand’s article was ably edited by Ryan M. Buschell, Esq., Special Counsel in the San Francisco office of Covington & Burling LLP.
The issue in which Ms. Marrkand’s article appears is a benefit of TIPS section membership and was distributed electronically to all TIPS section members by an April 28, 2021 email from Charles Allen Yuen, Editor-In-Chief. Attorneys and researchers may find the issue in typical research service databases such as Westlaw and Lexis as well as in electronic library collections.
Article “A Tort Without a Cause: Section 12 of the Restatement of the Law, Liability Insurance” takes the position that a tort remedy described in Section 12 does not belong in the Restatement. Figuratively — no camping here.