Everybody Complains About the Weather, but Whose Fault Is It?
Earlier this week I attended a Boston Bar Association presentation on climate change and insurance. The speaker was Lindene Patton, Chief Climate Product Officer at Zurich Insurance Group. It should come as no surprise that a property and casualty insurer is engaged in thinking about the predicted catastrophic impacts of climate change and the role insurance may have in addressing them.
One interesting aspect of the presentation was an analysis of the efforts made to date toward fashioning a theory of liability that might allow plaintiffs to recover in litigation for losses attributable to climate change. Experts are refining the science of “climate attribution,” attributing the causes of specific impacts to specific industries on a percentage basis. Could this support a market share theory of climate change liability similar to that applied in some product liability cases? This of course raises interesting questions of personal and societal responsibility: should an individual who drove a car and used electricity for years, and bought waterfront property knowing the risks that entailed, be entitled to recover damages for a loss attributed to climate change from the car makers, oil refiners or utilities who sold the products that allegedly caused or contributed to causing the loss? As Ms. Patton pointed out, in considering this possibility, it is worth remembering that at one time the potential for a successful tobacco liability claim seemed remote.
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