Law Commons^™

Insuring Fortuity—And Intent: A Comment On Professor French's Insuring Intentional Torts, Erik S. Knutsen, Jeffrey W. Stempel

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No abstract provided.

Broken Bodies And Broken Dreams: How Social Safety Net Programs Subsidize Professional Boxing And The Need To Improve Legal And Health Protections For Prizefighters, Robert I. Correales

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This article explores the lack of basic health and insurance protections for professional boxing participants and proposes changes in policy that will reflect the dangerous nature of professional boxing and the modem cost of medical services. Recognizing that a legislative remedy may never arrive, this article also examines previously unexplored or underutilized legal doctrines such as tort and workers' compensation law that may provide an alternative to inadequate insurance protection, and suggests a more aggressive approach along those lines to compel fuller protection for prizefighters.

Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf

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Since the birth of the concept of a legally-recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, The Right to Privacy, common law – with the aid of influential scholars -- has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion into seclusion involving non-governmental use …

The Other "Personal Injury": Coverage B Of The Cgl Policy, Jeffrey W. Stempel

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No abstract provided.

Public Policy And Workers’ Rights: Wrongful Discharge Discipline Actions And Reasonable Good Faith Beliefs, Ann C. Mcginley, Nicole Buonocore Porter

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In this paper, Professor Ann McGinley responds to Chapter 5 of the ALI's Restatement of the Law: Employment Law ("Restatement of Employment Law"), concerning "The Tort of Wrongful Discharge in Violation of Public Policy."' It proceeds in five parts. Following an introduction in Part I, Part II summarizes generally the provisions of Chapter 5, the Working Group's objections to the earlier version and recommendations for changes, and explains (when appropriate) where the final version deviated from the prior version. Part III argues that this chapter should have kept the prior version's protection against wrongful discipline instead of protecting only against …

Where's The Power - Defamation And Wrongful Interference In The Restatement Of Employment Law, Ruben J. Garcia

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In this article, Professor Ruben Garcia argues that the Restatement of Employment Law ("REL") misses the opportunity to address power relations between employers and employees as part of the "law as a whole" in the torts of the workplace. He argues that the omission shows the limits of restatements generally. However, there were other roads not taken by the drafters that might have acknowledged these power differentials in the final draft. Professor Garcia also argues that the normative choices that are made by the REL about the doctrine of compelled self-publication are based on questionable footings. "[A]cceptance of the doctrine …

Navigating The Law Of Defense Counsel Ex Parte Interviews Of Treating Physicians, Joseph Regalia, V. Andrew Cass

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This article explores the issue of defense counsel ex parte interviews with treating physicians, and proposes a resolution to standardize the practice that is equitable for all parties involved. Courts and legal scholars have commonly recognized that treating physicians in personal injury litigation are usually fact witnesses, albeit with special expertise, and allow plaintiffs unfettered access while defendants are relegated to a formal deposition which creates a fundamental imbalance in informational power. Moreover, there are significant arguments raised by the defense bar concerning efficiency and fairness. However, allowing defense counsel unlimited and unregulated access to treating physicians creates clear risks …

Tsunami: At&T Mobility Llc V. Concepcion Impedes Access To Justice, Jean R. Sternlight

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No abstract provided.

Passing Off And Unfair Competition: Conflict And Convergence In Competition Law, Mary Lafrance

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No abstract provided.

The "Other" Intermediaries: The Increasingly Anachronistic Immunity Of Managing General Agents And Independent Claims Adjusters, Jeffrey W. Stempel

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This article addresses the "other" intermediaries involved in the administration of insurance policies, specifically "downstream" intermediaries, who are engaged in the administration of insurance claims. The focus is on managing general agents, third-party administrators and independent contractor claims adjusters, who perform the nuts-and-bolts tasks of the insurance industry, and are generally less well compensated than commercial insurance brokers. Since these "other" intermediaries are immune from judicial claims by policyholders, they are also less incentivized to perform their duties well. The article argues that, in order to improve the claims process, the "other" intermediaries should be held accountable for their misconduct, …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

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Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

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The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …

Assessing The Coverage Carnage: Asbestos Liability And Insurance After Three Decades Of Dispute, Jeffrey W. Stempel

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Often overlooked are the insurance issues related to asbestos and the degree to which the asbestos mass tort has changed the face of liability insurance and liability insurance law. The asbestos mass tort brought insurance coverage litigation into the big leagues of litigation, adjudication, and scholarly examination (although even the most rabid insurance coverage junkie would concede this is not much silver lining to the asbestos cloud). But after 30 years of big-time liability insurance coverage litigation involving asbestos or influenced by asbestos, what is the outcome? My assessment is:

1. Despite their protestations, insurers have not been unfairly treated …

Not So Peaceful Coexistence: Inherent Tensions In Addressing Tort Law Reform, Jeffrey W. Stempel

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As Professor Michael Green's comments trenchantly remind us, all of this has a familiar ring: insurers and tort defendants claim unfairly escalating liability, plaintiffs' lawyers and consumer groups counterattack, and (for the most part), insurers and defendants obtain some of the relief they seek. The tort reform victories are not so overwhelming as to completely unravel the historical rights of victims or the power of courts generally, but some constriction of rights inevitably occurs. During periods of quiescence, plaintiffs and consumers take back some lost territory through common law victories expanding claimant rights, or through specific legislation. Statutes that permitted …

Holding Liability Insurers Accountable For Bad Faith Litigation Tactics With The Tort Of Abuse Of Process, Francis J. Mootz Iii

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Liability insurers generally do not owe any common law duties to injured third-party claimants who sue their insureds. After establishing (as a conceptual backdrop) the important and recognized public policies favoring prompt and fair payments by liability insurers to injured third-party claimants, this article analyzes whether claimants can effectively use the tort of abuse of process to hold liability insurers accountable when they engage in bad faith litigation tactics. The article identifies the problems that claimants may face in alleging abuse of process in the liability insurance setting, but also indicates that recent trends in this area of law suggest …

Symposium, Justice And Democracy Forum: The Law And Politics Of Tort Reform, Ann C. Mcginley

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On April 25, 2003, the University of Nevada, Las Vegas (“UNLV”) Center for Democratic Culture (“CDC”) and the William S. Boyd School of Law sponsored a one-day symposium addressing issues of tort reform. In particular, the Forum addressed concerns regarding construction defect litigation and medical malpractice, two areas of current and substantial concern in Nevada. As reflected in the discussion at the Forum, both topics received considerable attention from the Nevada State Legislature during its 2003 Session. Ultimately, the legislature enacted amendments to state statutes governing claims for defective construction. Despite significant lobbying by physicians and insurers, the legislature did …

The Sounds Of Silence: Waiting For Courts To Acknowledge That Public Policy Justifies Awarding Damages To Third Party Claimants When Liability Insurers Deal With Them In Bad Faith, Francis J. Mootz Iii

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A long-standing and virtually unchallenged doctrinal rule provides that a liability insurance carrier owes no duties in tort or contract to a third-party claimant who has been injured by its insured. As a matter of doctinal consistency and logic, the traditional rule makes some sense. The liability insurer has no contractual relationship with the claimant, and third-party beneficiary doctrine is not easily used to impose duties. Moreover, by stepping into the shoes of the insured tortfeasor to whom it owes a heightened duty of good faith, the insurer is in an adversarial relationship with the claimant that makes it difficult …

The Insurance Aftermath Of September 11: Myriad Claims, Multiple Lines, Arguments Over Ocurrence Counting, War Risk Exclusions, The Future Of Terrorism Coverage, And New Issues Of Government Role, Jeffrey W. Stempel

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September 11, 2001, is an unforgettable date for many reasons. In addition to its political, social, and historical importance, it may mark a watershed of insurance history as well. The value of the insurance losses due to the collapse of the World Trade Center (WTC) towers is estimated to total at least $35 billion and perhaps $75 billion. In addition, most of the people killed by terrorism were covered by life insurance. Many business operations were affected, invoking possible business interruption coverage. The airplanes that became weapons of destruction carried passengers whose estates are likely to press claims against the …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 2000 and 2001.

Coverage For Unfair Competition Torts Under General Liability Policies: Will The "Intellectual Property" Tail Wag The Coverage Dog?, Francis J. Mootz Iii

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The scope of "advertising injury" coverage in general liability policies has been shrinking in response to the proliferation of liabilities caused by the growth of the cyber-economy. In response to this shrinking coverage under general liability policies, insurers have been quick to develop new endorsements and specialized products to fill the gaps in coverage. The author argues that significant commercial risks relating to unfair competition claims have been eliminated from coverage under general liability policies, but that there also appears to be no corresponding development of specific endorsements or stand-alone products to deal with this gap in coverage. Specifically, claims …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 2000 and 2001.

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

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This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

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The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.

Insuring Employer Liability For Hostile Work Environment Claims: How Changes In Discrimination Law May Affect The Growing Market For Employment-Related Practices Liability Insurance, Francis J. Mootz Iii

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Assessing the role that Employment Practices Liability Insurance might play in the future requires an understanding of two murky areas of law: employment law and insurance coverage law. In Part I of the Article I discuss the evolution of employer liability for hostile work environment sexual harassment. In Part II of the Article I analyze the consequences for insurance coverage that follow from recognizing that liability for hostile work environment sexual harassment is grounded on negligence principles.

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

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In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance law in the year 1998-1999.

Continuing Classroom Conversation Beyond The Four Whys, Jeffrey W. Stempel, Bailey Kuklin

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LAW school classes regularly prove Santayana's aphorism. Although nearly every law teacher desires to keep discussion focused and forward-moving, there are more than a few moments of thundering silence experienced in the classroom. Most of us adjust to this inevitability by positing some pedagogical virtue to still air and contenting ourselves with the knowledge that conversation-stopping “whys?” are usually delivered by us as teachers rather than the students. Perhaps we are underappreciative of the value discomfitting silence has, but we generally prefer that the conversation continue, that we miss the opportunity to feel simultaneously smug and uncomfortable, and that students …

Reason And Pollution: Construing The "Absolute" Pollution Exclusion In Context And In Light Of Its Purpose And Party Expectations, Jeffrey W. Stempel

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Responding to the flurry of environmental coverage litigation over the application of the “sudden and accidental” pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion, which provides that the insurance does not apply to bodily injury or property damage “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.” A “pollutant” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, …