Comment by gizmo686 | Hacker News Reader

Comment by gizmo686 | Hacker News Reader

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> Any proposal to do that in effect makes the police investigation a court of first instance, which either means creating additional procedural rights that apply before it can be completed (driving up costs) or a very real denial of due process.

Not nessasarily. The 'additional weight' could still be something that requires a suit to take advantage of directly, but which the threat of compels behavior. For example, many localities have rental laws that compel the landlord to pay thrice what they would otherwise owe in certain circumstances. E.G. if my landlord simply refuses to refund my security deposit without proper reason, or without following proper procedures within 45 days, then I can sue for 3x the deposit and attorny fees.

A similar thing can be implemented for vehicular damages. Something along the lines of:

1) If you are found liable and

2) Were given adaquete notice and oppurtunity to pay and

3) Ought to have known you were liable

Then the defendent is entitled to punitive damages for your making them take you to court. You don't even have to go as far as most tenent laws go. You could allow for a loosing defendent to argue that there defense was reasonable, (or reasonable given evidence available to them at the time), and that they should therefore not owe punitive damages.

Of course, this still is only tangentially related to insurance.

What you propose is additional weight that does require going to court, basically additional incentive to settle if it is reasonably perceived the other party will take the case to court.

But there are already additional costs the insurance company would bear if it went to court, which is why they will mostly settle if there is any substantial evidence (like a police report) and even a shadow of a threat of legal action, including—but not limited to—an insurance company on the other side. Neither that nor any additional weight you give the police report that requires going to court alters the calculus at all when the liable party (whether or not they have an insurance company as their agent) is certain you won't take that step.

>3) Ought to have known you were liable

How would that even be defined? Is it just based on the balance of evidence available? We already have something for this. If one party is really obviously guilty, then the other party can call for a summary judgement and skip much of the expensive trial.

Summary judgement applies when the facts not in dispute are sufficient to reach a legal conclusion. If there is a material dispute of facts, no matter how obvious the evidence is, it must go to trial. Further, summary judgement only reduces the cost (for both sides); it does nothing to act as a deterent.

> How would that even be defined?

That depends on how claiment friendly you want to be.

The key piece would be: "based on what the defendant knew when they refused the request for payment". Standard evidenciary rules apply for showing that the defendant knew something. In this case, the key evidence would be a police report and pictures sent to the insurance company, so I don't think there would typically be a dispute here.

The harder part is defining "ought". Courts already have a reasonable person test they apply to other situations. You could also apply the clear and convincing evidence standard to the applicable evidence (or, if you really wanted to, either preponderance or beyond a reasonable doubt).

The real answer is that in this hypothetical the legislature would pass a law, and then the appellate courts will spend decades clarifying the law until the legislature changes it again.

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