St. Mary's Law Journal


Some legal commentators would analogize the description of the prisoner of The Pit and the Pendulum to modern tort law and policy. Like a pendulum, tort law is always in motion, swinging between two ideologies: those being the plaintiff-oriented rights of the 1970s-80s, and the tort-reforms which began in the mid-80s. This trend continued until the 1990s and the decision of State Farm Fire & Casualty Co. v. Gandy where Texas plaintiffs began experiencing setbacks. The Gandy decision likely curtails the use of the “sweetheart deal” a practice, in which an insured defendant first settles with the plaintiff, then assigns any claim it may have against its insurance carriers to the same plaintiff. This decision typifies the prevailing attitude of the Texas Supreme Court towards the underlying public policy justifications for tort law. The Texas Supreme Court analyzed assignment of “choses in action” both historically and under modern practice, determining such assignments distorted the litigation which followed. Whether Gandy will have profound effects on the insurance industry and the practice of assigning and settling tort claims remains debatable. Regardless of its ultimate precedential effect, it remains indisputable, Gandy reflects a current hostile climate towards plaintiffs in Texas. Due to the perceived tort crisis and tort reform campaigns, it has become clear compensating plaintiffs no longer reigns supreme in the hierarchy of public policy justification for tort law. Nevertheless, although some cases such as Gandy likely foreshadow the tough times which lay ahead for Texas plaintiffs, they may not represent the death knell for the state’s tort law and personal injury attorneys.


St. Mary's University School of Law