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The Forfeiture Of Coverage Defenses Rule: An Economic Analysis, Tom Baker, Ezra Friedman, Kyle D. Logue Jul 2017

The Forfeiture Of Coverage Defenses Rule: An Economic Analysis, Tom Baker, Ezra Friedman, Kyle D. Logue

Faculty Scholarship at Penn Law

In liability insurance, the duty to defend is broader than the duty to cover. Thus it is possible that an insurer that has a duty to defend a suit may not have the duty to cover the policyholder's liabilities in the suit. However, if the penalty for a breach of the duty to defend is limited to actual legal costs spent by the defendant, the insurer may have an incentive to refuse to defend, even when the duty to defend is clear. This occurs because the insurer will not internalize the consequences of an inadequate defense when it ultimately ...


In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue Jan 2017

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Faculty Scholarship at Penn Law

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement:

(a) are radically contrary to existing case law,

(b) have a naïve “pro-policyholder” bias that ignores basic economic ...


Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff Jan 2017

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

Faculty Scholarship at Penn Law

Top law firms are notoriously competitive, fighting for prime clients and matters. But some of the most elite firms are also deeply cooperative, willingly sharing key details about their finances and strategy with their rivals. More surprisingly, they pay handsomely to do so. Nearly half of the AmLaw 100 and 200 belong to mutual insurance organizations that require member firms to provide capital; partner time; and important information about their governance, balance sheets, risk management, strategic plans, and malpractice liability. To answer why these firms do so when there are commercial insurers willing to provide coverage with fewer burdens, we ...