As of 1995, ten states had mandatory no-fault laws.¹ Another eleven states and the District of Columbia had hybrid no-fault systems, under which tort lawsuits and compensation are not restricted.² Three of these states, Pennsylvania, New Jersey, and Kentucky, presently provide motorists with circumscribed choices for the kind of coverage they may purchase. Since 1989, four states have repealed their mandatory no-fault laws.³

This is a detailed look at how no fault laws have worked in practice. Data from no fault states shows that no fault increases premiums while restricting consumers’ rights.

A. No-Fault Increases Insurance Premiums

B. No-Fault Contradicts Basic American Principles of Individual Responsibility and Accountability

C. No-Fault Eliminates the Right to Full Compensation

D. No-Fault Places Policyholders at a Disadvantage

E. No-Fault Does Not Reduce Disputes and Litigation

A. No-Fault Increases Insurance Premiums

The contemporary policy debate surrounding auto insurance reform has centered upon the pocketbook issue of price. Thus, the question of whether no-fault raises or lowers the cost of auto insurance is of major importance in the debate over auto insurance reform.

The following tables summarize data drawn from annual reports published by the National Association of Insurance Commissioners (NAIC), including State Average Expenditures & Premiums for Personal Automobile Insurance in 1995 (January 1997). The NAIC report utilizes premium data reported to it by state insurance regulatory agencies. For purposes of this analysis, the NAIC data for “average liability premium,” which includes no-fault insurance premiums, is examined because it is the portion of the insurance policy directly affected by distinctions between Personal Responsibility Systems and no-fault systems.

1. No-fault states have the highest average automobile liability insurance premiums. Of the ten states where auto insurance was most expensive in 1989, eight were no-fault states. Since then, three of those states — Pennsylvania, New Jersey and Connecticut — have repealed their mandatory no-fault systems. (However, no-fault remains optional in Pennsylvania and New Jersey). In 1995, six of the top ten most expensive states (including D.C.) had no-fault systems.⁴ See Table 1. Note that in 1995, New York — the model state for the “verbal threshold” no-fault proposals promoted by the insurance industry earlier in this decade — was the 5th most expensive state in the nation (up from sixth place in 1994).

Table 1. States With Highest Average Auto Liability Premiums

* Mandatory No-fault State

** Mixed or Hybrid No-fault State

***No-fault made optional 1990

****No-fault made optional 1991

*****No-fault repealed 1993, effective 1994.

2. No-fault states are consistently among the most expensive states in the nation.For each year between 1987 and 1995, a majority of the states with the highest average auto insurance premium were no-fault states. Note that as several states repealed their no-fault laws, the number of no-fault jurisdictions within the top ten declined. See Table 2.

Table 2. Number of No-fault States Among Top 10 Most Expensive States, 1987-1995

3. Premiums in mandatory no-fault states rose nearly 25% greater than in non-no-fault states. The average auto insurance premium in states with mandatory no-fault systems grew an average of 45.6% between 1989-95, a growth rate nearly 25% greater than in Personal Responsibility System states. The latter saw an average 36.8% increase over the same period. California, which implemented insurance industry reform during this period (discussed infra), is included for purposes of comparison. See Table 3.

Table 3a. Comparison of Growth of Average Auto Liability Premiums, 1989-1995⁵

Of the fifteen states with the greatest increases in the nation in auto liability premiums between 1989 and 1995, nine states had some form of no-fault — either mandatory or hybrid systems. See Table 3a.

Table 3b. States With Highest Growth in Average Auto Liability Premiums, 1989-1995

* Mandatory No-fault State

** Hybrid No-fault State

4. Repealing no-fault lowers auto insurance premiums. Four states significantly altered their no-fault systems between 1989 and 1995: Georgia, Connecticut, Pennsylvania and New Jersey.

Georgia eliminated its no-fault system effective October 1991, established stringent regulation of rates and mandated a 15% rollback. The average auto insurance premium in Georgia fell 12.5% the next year. The state, once the 16th most expensive in the nation, ranked 37th in 1995. Table 5 below summarizes the changes in Georgia’s average liability premium, its national rank and the annual change.

Table 4a. Georgia: Average Liability Premium, Rank and % Change

Connecticut repealed its no-fault system effective January 1994. After six annual increases of 8% or more, the average auto liability premium dropped 9.7% during 1994. The state, which for the four years prior to repeal was one of the three most expensive states in the nation, now ranks 6th. Table 6 below summarizes the changes in Connecticut’s average automobile liability premium, its national rank and the annual change.

Table 4b. Connecticut: Average Auto Liability Premium, Rank and % Change

Pennsylvania repealed its mandatory no-fault law effective July 1990. The legislation made no-fault coverage optional. Motorists who chose to operate under the tort-based Personal Responsibility System were provided a 10% rollback, while those choosing no-fault were offered a 22% rollback. Insurers were required to fully inform motorists of their options and obtain a written election of the no-fault coverage; motorists who failed to make an election were initially assigned by default to the Personal Responsibility System. Despite the substantially greater refund offered under no-fault, an estimated 60% of motorists returned to the Personal Responsibility System. The reform legislation also included health care cost containment provisions and protections against arbitrary cancellations or surcharges.⁶

Pennsylvania, which had the 6th highest average auto liability insurance premium in 1989, dropped off the top ten chart as a result of repeal of its mandatory no-fault system. It ranked 19th in 1995. Table 7 below summarizes the changes in Pennsylvania’s average liability premium, its national rank and the annual change.

Table 4c. Pennsylvania: Average Liability Premium, Rank and % Change

New Jersey repealed its mandatory no-fault law in 1989, but instituted an optional system in which all motorists are enrolled in no-fault unless they choose the Personal Responsibility System. New Jersey’s new system does not contain the requirement that motorists be fully informed of the opportunity to choose between no-fault and the Personal Responsibility System, nor does it require an express waiver of tort law rights.

New Jersey, which had the most expensive average automobile liability insurance premium in the nation for four years in a row, ranked second highest in the nation in 1995. Table 8 below summarizes the changes in New Jersey’s average liability premium, its national rank and the annual change.

Table 4d. New Jersey: Average Liability Premium, Rank and % Change

Why no-fault raises premiums.The NAIC data demonstrate that no-fault systems — including mandatory no-fault laws — are more expensive than personal responsibility systems based on tort liability. No-fault’s restrictions on tort-based compensation for non-economic damages do not offset the higher costs of no-fault.⁷ There are several reasons for this experience:

1. Under no-fault, both the innocent victim and the motorist who caused the accident are compensated with medical, wage loss and other benefits — regardless of who is at fault. Paying the claims of both parties is inherently more expensive than under the Personal Responsibility System, in which the liability policy of the at-fault driver covers the innocent driver only. This conclusion is affirmed by many insurance industry experts, including advocates of no-fault, who acknowledge that no-fault was not conceived as a cost-saving measure but rather as a more efficient method of providing unlimited accident benefits and avoiding lengthy legal disputes over issues of fault.⁸ The nation’s largest auto insurance company, State Farm, has stated:
   

   The adoption of no-fault reparation systems may or may not lead to a reduction in the cost of auto insurance. The advantage of no-fault lies in a redistribution of insurance benefits based on need rather than fault, not its potential cost saving.”⁹

2. Under no-fault, insurance companies are required to provide benefits to policyholders on a first-party basis. Thus, no-fault claimants do not face the kinds of corroborative pleading, evidentiary and procedural hurdles that exist under the Personal Responsibility System. As a result, no-fault offers policyholders greater opportunity to maximize their claims. For example, the availability of medical care up to the limits of the no-fault policy encourages greater utilization of health care services. The more generous the no-fault benefits, the greater the incentive to take advantage of them.¹⁰ For the same reason, no-fault creates a fertile environment for inflated or fraudulent claims. For example, individuals who are not covered by other forms of health insurance, or who are hurt at work but seek greater benefits than their workers’ compensation coverage provides, may file claims under the no-fault system for injuries or illnesses not caused by the operation of a motor vehicle.
   

3. Overall, no-fault does not reduce litigation costs. Litigation over property damage — for which the vast majority of car accident claims are filed — continues under no-fault, because no-fault systems typically retain the liability system for property claims. Litigation over whether a particular plaintiff has met the threshold after which lawsuits can be brought is common in traditional no-fault states (those with thresholds). Finally, there is anecdotal evidence that suits by motorists against their own insurance company for failure to pay no-fault benefits have skyrocketed.
   

4. Liability insurance and other coverages remain necessary for many motorists in no-fault jurisdictions. Depending upon the generosity of the available no-fault benefits, motorists must still purchase additional first party coverage to protect themselves against serious accidents caused by uninsured, underinsured or unregistered motorists.¹¹ Further, some motorists must also purchase additional liability coverage in the event they cause an accident that results in damages to another motorist in excess of the no-fault benefits available to that driver. Absent such insurance, the at-fault motorist risks a potentially devastating civil judgment against his or her home or other assets.¹² Finally, under no-fault systems, motorists must still purchase property damage liability protection, since no-fault typically covers only bodily injury.

As discussed in greater detail below, there is significant evidence that the threat of liability acts as a deterrent to dangerous driving. The absence of fault leads to higher accident rates and correspondingly higher losses that must eventually be recouped through rate increases.

B. No-Fault Contradicts Basic American Principles of Individual Responsibility and Accountability

No-fault systems explicitly contradict the fundamental principle of American justice that wrongdoers are held responsible for the harm they cause.¹³ By eliminating “fault,” no-fault effectively treats good drivers and bad drivers the same.¹⁴ This is not merely a philosophical concern; a substantial body of evidence shows that no-fault leads to more accidents because it weakens the deterrent effect of the tort law.¹⁵

C. No-Fault Eliminates the Right to Full Compensation

As originally envisioned, no-fault systems would provide consumers with full compensation for medical expenses and wage losses arising from a motor vehicle accident. In exchange, motorists would sacrifice their common law right to sue to obtain compensation for pain and suffering for minor injuries. Victims of serious and/or permanent injuries, however, would be permitted to sue for such compensation.¹⁶

Much has been made of alleged abuses in claims for “pain and suffering” compensation, to the point where no-fault advocates rarely acknowledge the legitimacy of any such compensation, or, if they do, consider the trade-off worthwhile.¹⁷ But by taking away the right of injured motorists to seek compensation for their pain and suffering, no-fault depersonalizes the human being, treating injured people as the equivalent of damaged property.

Moreover, recent proposals reflect a profound revision of the no- fault quid pro quo as the insurance industry attempts to formulate a less expensive form of no-fault. Instead of unlimited compensation for economic losses, motorists would be required to trade their right to non-economic compensation for economic benefits that even some supporters of no-fault consider grossly inadequate.¹⁸

D. No-Fault Places Policyholders at a Disadvantage

By depriving consumers of the leverage of adequate legal remedies, no-fault proposals inevitably place consumers at a disadvantage. The elimination of compensation for accident victims’ pain and suffering reduces the incentive for scrupulous lawyers to accept auto accident cases because the lawyers’ fees would then have to be paid out of the victims’ recovery of actual medical expenses and lost wages. Moreover, by discouraging lawyers from representing accident victims, the ban on pain and suffering compensation will indirectly limit a policyholder’s ability to insist upon full payment of economic compensation, such as wage loss or medical bills. Without the ready availability of legal representation to plaintiffs, insurers will have less reason to eschew abusive settlement practices, such as “low-balling.”¹⁹

E. No-Fault Does Not Reduce Disputes and Litigation

Benefit levels, as well as threshold levels, obviously have a direct relationship to litigation in no-fault states. Jurisdictions in which the no-fault benefits are limited, depriving motorists of adequate compensation, or in which the threshold for pain and suffering claims is easily breached, are likely to experience higher levels of litigation.²⁰

No-fault systems present unique inducements to litigation beyond excess-of-benefits liability claims against third parties. Disputes over whether a particular claimant’s damages exceed the litigation threshold are the source of voluminous litigation in states with the less-quantifiable verbal threshold.²¹ Moreover, there are reports of more frequent suits brought by policyholders against their own insurance companies for failure to pay no-fault benefits in good faith.²² Finally, litigation over property damage-the single largest source of claims in most jurisdictions-will continue under no-fault because the liability system is retained for property claims. An analysis published in the Insurance Counsel Journal, a publication for insurance defense attorneys, concluded: “[W]hatever the advantages of no-fault, a reduction in court cases and court costs would not appear to be one of them.”²³

1. See supra note 16.

2. See supra note 16.

3. See supra note 15.

4. As it has each year since 1991, Hawaii remained the most expensive in the nation.

5. Figures are an average of each state’s average auto liability insurance premium. Table excludes states which repealed their mandatory no-fault systems during this period (Connecticut, Georgia, New Jersey and Pennsylvania).

6. All is Quiet in Pennsylvania Auto (Except Ferocious Competition), Auto Insurance Report, Nov. 17, 1997, at 1-2.

7. Manifestly, severe limitations on claims and/or compensation might so reduce payouts that insurers could reduce rates and still maintain their desired level of profitability. For example, S. 837, the present federal “choice” no-fault legislation, not only eliminates the requirement that insurance companies pay for non-economic losses, but makes other potential sources of compensation – workers compensation, state-required non-occupational disability insurance, and occupational disability insurance covering professional drivers of motor vehicles who are independent contractors – the primary source for payment of claims. §6(b)(2). Other no-fault proposals would reduce benefits to as little as $15,000 in medical coverage. Such policies might cost insurers less – but would offer little or nothing of value to many motorists. Considerations of product value are a likely reason why no-fault proposals are disfavored by the public, notwithstanding promised price reductions.

8.The Deputy Insurance Commissioner of Michigan stated that the state’s unlimited benefits no-fault law “. . . was never designed primarily as a savings measure. All of the arguments focused on paying people better and faster and enhancing rehabilitation by giving people money immediately.” Morton C. Paulson, The Compelling Case For No-Fault Insurance, Changing Times, July 1989 (quoting Jean Carlson, Michigan Deputy Insurance Commissioner). A director of Independent Mutual Agents in New York went out of his way to diminish the importance that consumers should place on getting lowered, or even stabilized, premiums under no-fault. He said, “the no-fault concept was erroneously sold to the public by the legislature, and by a certain segment of the insurance industry, on the basis of cost savings alone.” Agents Blame Inflation For High Rates; Seek Amendments To N.Y. No-Fault Law, The National Underwriter. Testifying before the California Legislature, an official from New York State’s Department of Insurance stated: “… [W]e do not believe that the major impetus for enacting a no-fault law should be the expectation of premium reductions (though they may occur). . .” Testimony of Richard C. Hsia, Deputy Superintendent of Insurance, New York State Dept. of Insurance, before Assembly Committee on Finance, Insurance and Public Investment, California Legislature, May 24-25, 1993, at 11.

After the passage of Proposition 103, insurers operating in California proposed no-fault legislation with benefits of $15,000, which would be split between bodily injury and extremely limited wage loss protection. The plan was described as “no frills no-fault.” S.B. 941, (March 8, 1991). See Kenneth Reich, Wilson Will Back No-fault Initiative, Los Angeles Times, June 13, 1991 at 3. However, industry officials admitted that even this radical departure from no-fault’s original promise of unlimited coverage would not necessarily lower premiums. According to a California insurance lobbyist, “[t]he new no-fault will not lower rates. No-fault will control rates. We have never said it will lower rates.” ACIC Points Out Nader, Harvey Inconsistencies, Underwriter’s Report, October 3, 1991, at 5.

9. State Farm Insurance Companies, No-fault Press Reference Manual, at (G-402 1992).

10. Referring to amendments to Massachusetts’ no-fault law, an industry expert noted that the “actual additional costs [of] raising the [no-fault benefit] limit were roughly double what the [insurance] commissioner assumed….What lawmakers failed to foresee were the behavioral changes of participants in the system which the auto reform precipitated.” National Underwriter, December 23, 1991, at 4. Former Georgia Commissioner of Insurance Tim Ryles told the U.S. Congress: “[N]o matter what proponents tell you about insurance fraud, no-fault will not do anything to control it. On the contrary, no-fault is to insurance fraud what octane level is to gasoline: the more no-fault you have, the greater the fraud.” Hearings of the Committee on Commerce, Science and Transportation, U.S. Senate, July 17, 1997 (Testimony of Tim Ryles at 2).

11. Obviously, to the extent no-fault drives up prices, the problem of under- and uninsured motorists is exacerbated.

12. An analysis by industry actuaries, noting that failure to purchase additional liability coverage “could have disastrous implications for consumers…,” explained:

Consumers would be faced with the prospect of having no defense or indemnity protection for suits that might be brought against them for non-economic loss and/or for economic losses that exceed [the no-fault benefits] as defined by the statute.

Regardless of whether or not such a claim would have any merit, the consumer (policyholder) would have to personally incur the cost of defending such actions and paying any settlement and judgment (if they are only carrying the basic personal injury protection policy). Even when New York enacted its no-fault law, liability insurance continued to be a mandatory requirement.

Donald McGrath, Gordon Lahti, Harry Lindstrom, The Automobile Insurance Crisis: A Different Perspective, Underwriter’s Report, October 3, 1991, at 30.

13. No-fault also conflicts with a central tenet of American democracy: that any individual may have access to the judicial system-the one branch of government in which a citizen is accorded stature equal to that of any corporation, no matter how powerful-to hold wrongdoers fully accountable for the harm they cause. American courts have generally upheld most legislated restrictions on common law tort rights, including no-fault laws. See generally JOOST, supra note 13, at § 2:21.

14. This philosophical objection should not be discounted as an explanation for the popular aversion to no-fault. Irresponsible behavior that leads to death and injuries may nevertheless fall outside the scope or prosecutorial resources of the criminal justice system. Addressing such matters is a singular purpose of the civil justice system, the viability of which distinguishes civilized society from lawless rule or even anarchy. Arbitrary restrictions on the right of accident victims to hold wrongdoers accountable subvert this important function of the judicial branch, contribute to public frustration, and undermine confidence in our democratic institutions.

That no-fault eliminates the distinction between good and bad drivers is not meant to suggest that insurance companies do not discriminate between such drivers for the purpose of determining product prices through “rating plans.” See discussion infra Part III.D. Carriers routinely assess fault for purposes of setting premiums. The constraints, if any, upon the ability of insurance companies to unilaterally assign fault for rating purposes are a function of state regulatory requirements and vary widely.

15. See, e.g., Frank A. Sloan, Effects of Tort Liability and Insurance on Heavy Drinking and Drinking and Driving, 38 J.L. & ECON. 49 (1995); Frank A. Sloan, Tort Liability Versus Other Approaches for Deterring Careless Driving, 14 INT’L REV. L. & ECON., 53, 60, 66, 69 (1994). In their 1987 book, The Economic Structure of Tort Law, conservative theorists William M. Landes and Richard A. Posner found that systems based on tort liability lead to lower accident rates. They argue that if the incentive to take care is reduced by limiting the liability of a potential wrongdoer, people will be less careful, and the cumulatively significant result will be more fatal accidents. See WILLIAM A. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987); see also Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter? 42 UCLA L. REV. 377 (1994).

16. See KEETON & O’CONNELL, supra note 9 and accompanying text.

17. For a typical example of a derisive view of compensation for pain and suffering, see John E. Calfee & Clifford Winston, The Consumer Welfare Effects of Liability for Pain and Suffering: An Exploratory Analysis, BROOKINGS PAPERS: MICROECONOMICS 133 (1993). “Awards for pain and suffering may be imposing a substantial deadweight cost on consumers.” Id. at 134. For a thorough critique of the conventional wisdom, see Steven P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort Law, 108 HARV. L. REV. 1787 (1995).

18. As noted, the industry has promoted “no frills” no-fault proposals with highly limited benefits in order to offer an alternative to insurance industry reform proposals that offer lower premiums. See supra note 60. Dr. Robert Hunter, former Insurance Commissioner of Texas and founder of the National Insurance Consumers Organization, (NICO), is a nationally respected advocate of no-fault systems that provide unlimited benefits. He described “no frills” no-fault legislation offering $15,000 in no-fault benefits as “a poor trade-off for consumers and a catastrophe for the seriously injured.” Letter from J. Robert Hunter, President, NICO, to the Honorable Bill Lockyer, Chair, California Senate Judiciary Committee 3-4 (May 28, 1991) (on file with author).

19. Many no-fault proposals explicitly deprive policyholders of traditional state consumer protection laws that permit insurers to be sued and face heavy penalties should they fail to settle claims in good faith. For example, Senate Resolution 625, the federal “choice” no-fault legislation, abolishes the ability of juries to punish an insurance company with a punitive damage award for failure to pay claims in good faith. S. Res. 625, 105th Cong. § 5(b)(4)(B)(i) (1997). Since insurers have an inherent financial incentive to deny claims, the threat of a financial penalty is often the only leverage a policyholder can wield to force an insurance company to comply with its legal obligations. While no-fault proposals often contain provisions requiring insurance companies to pay claims promptly or face interest penalties, this is an illusory protection. See id. The proposals typically allow an insurance company to refuse to pay benefits that are in “reasonable dispute,” with the insurance company authorized to determine in the first instance whether a dispute is “reasonable.” Id. § 5(b)(4)(B).

20. Of course, under some “pure” no-fault proposals, motorists would be prohibited from recourse to the courts once no-fault benefits expire, even if the claimant is left with unpaid economic losses. Note that such proposals would force the most seriously injured to seek recourse to taxpayer-subsidized programs, such as welfare.

21. A study of auto accident litigation in Michigan determined that 22% (241) of the 1119 reported cases concerned the bodily injury threshold requirement, where the question was whether the claimant’s injuries were serious enough to permit a suit against a negligent third party. See George T. Sinas, No-Fault: A Perspective From Michigan, June 30, 1990, at 15 (unpublished study on file with author). Referencing New York’s similar “serious and permanent” verbal threshold for recovery of pain and suffering in assessing no-fault legislation in California, three insurance industry actuaries noted that “[t]his area of the law remains very unsettled in New York and there appears to be a reluctance on the part of the judiciary to deny claimants access to the courts . . . . We have no reason to believe that the situation would be any different in California . . . we anticipate that there will be a great deal of litigation over this issue alone.” McGrath et al., supra note 64, at 30.

22. This is reflected in Michigan lawsuit filings. During the period 1977-89, of the 1119 appellate opinions in Michigan addressing no-fault, 73% (826) were first party cases in which insureds were suing their own insurance company to obtain no-fault benefits. See Sinas, supra note 73.

A Michigan lawmaker told Maine legislators considering no fault legislation to beware of the argument that no-fault would reduce the number of lawsuits: ” What we did not count on when we enacted our no-fault legislation was a drastic increase in first-party litigation. You are seeking to enact no-fault legislation to contain costs, to provide prompt and adequate coverage and to reduce the need for litigation. Auto no-fault does not result in a reduction of litigation. The number of first party auto no-fault lawsuits filed in Michigan is nearly three times as great as the number of third party suits. Most of our insureds who file suits find themselves not suing a liable negligent driver, [the third party] but, rather, suing their own insurer for their own first party benefits. This has resulted in driving up administrative costs and has considerably lengthened the time it takes for insureds to receive benefits. Auto no-fault does not reduce the number of suits filed or the cost of litigation.

Auto Insurance Reform: Hearing on S. 140 Before the House Comm. on Econ. Dev. and Energy, Educ., Ins. and Labor (undated statement of Michigan Representative Nelson W. Saunders) (on file with author).

23. Norman K. Risjord, Does No-fault Reduce Litigation, INS. COUNS. J., Jan. 1986, at 389, 392.