Law Commons^™

Delayed Emergency Care: How Professional Liability Insurance Affects Doctors’ Decisions After Dobbs And What Needs To Change, Erin Stuart

Marquette Law Review

In 2022, the U.S. Supreme Court overruled Roe v. Wade, ushering in a new era for abortion regulation. In some states, like Wisconsin, abortion was instantly re-criminalized. In rare but serious instances, health care providers faced the dilemma of deciding whether to delay care for emergency abortion services to save the life of a mother, for fear of criminal prosecution. As a result, some providers wondered if their professional liability insurance plan would provide a legal defense in the event of a criminal charge of illegally performing an abortion, though the facts may show it was to save the life …

Vulnerability As A Launching State: Why The United States Should Adopt Explicit Indemnification Procedures In Response To The Growth Of The Commercial Space Industry, Mollie Carney

St. John's Law Review

(Excerpt)

This Note argues that the current United States launch license requirements should be amended to include explicit indemnification procedures, should the United States be held liable for damages as a Launching State under the Liability Convention. Part I of this Note examines the evolution of the space industry from a field marked by Cold War tensions to one that is dominated by private industry, and the risks that are associated with the rapid growth of the commercial space industry. Part II will explain the current legal regime by (1) setting a framework of liability generally, (2) examining the Liability …

Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law's goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI's major problem.

The EPLI market, for the most part, functions in a way that poses little to …

Deals, Victor P. Goldberg

Faculty Scholarship

Over a quarter of a century ago, Ron Gilson, Dan Raff, and I developed a new course, The Economics of Complex Transactions, which came to be known as Deals. The motivation for the course was our perception of a great imbalance in the law school curriculum, which was weighted heavily toward litigation, particularly appellate litigation. While a substantial number of our graduates were becoming transactional lawyers, there was hardly anything available to prepare them for that practice. Our concept was that lawyers were transaction engineers and, when designing contracts, they faced a generic set of problems. Furthermore, there were techniques …

Back To The Future Of Cyber Insurance, Tom Baker

All Faculty Scholarship

Written for an insurance trade publication, this brief essay identifies five ways that insurers manage uncertainty in selling cyber insurance: (1) providing valuable services beyond risk transfer; (2) contract design, (3) rapid iteration of pricing and forms, (4) limits management and reinsurance, and (5) claims disputing. Cyber insurers provide easy-to-price loss prevention and mitigation services so that the value proposition includes more than the (difficult to price) risk transfer. Cyber insurers design their contracts to include narrowly defined categories of coverage, typically with separate limits and with claims-made coverage for liability risks, and traditional insurers design their contracts to limit …

How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver

All Faculty Scholarship

Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey …

The Unappreciated Importance, For Small Business Defendants, Of The Duty To Settle, Robert Heidt

Maine Law Review

This paper suggests how the duty to settle, which requires liability insurers to pay damages awarded against their insured in excess of the policy limits when the insurers reject a reasonable settlement offer within the limits, may have indirectly led certain of their insureds--small business recreational vendors like horse riding stables or some motels offering swimming pools with diving boards--to sanitize the recreational activities they offer. More generally, the duty to settle's effect on the lawsuits injured customers brought against small business recreational vendors may have led a wide variety of such vendors to sanitize activities the vendors previously offered …

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

Articles

The importance of liability law to the American system of justice, and to the US economy in general, are well known. Somewhat less well known, at least among non-lawyers, is the corresponding centrality of liability insurance. For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. Such coverage, provided by state-regulated insurance companies, ranges from auto and homeowners’ policies (sold to consumers throughout the country) to commercial general liability policies (sold to businesses of all sizes) to professional liability policies of various sorts (including Directors and Officers coverage …

Forced Arbitration’S Lethal Consequence, Joanne Doroshow

Other Publications

No abstract provided.

Rodney Dangerfield No More: The American Law Institute's Coming Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

Scholarly Works

In a casebook I co-author, "Principles of Insurance Law," with Peter Swisher and Erik Knutsen, we refer to insurance as "the Rodney Dangerfield of law." It just does not (to paraphrase the words of the late comedian), get enough respect. Lawyers are familiar with (and have been since perhaps the fourth week of law school), the American Law Institute's Restatements of the Law, particularly widely cited restatements, such as those governing torts and contracts (and, to a lesser extent, judgments, conflict of laws, restitution, suretyship and others). Despite the importance of insurance in the civil justice system, it has been …

Imposing Punitive Damage Liabiliity On The Intoxicated Driver, Martin A. Kotler

Akron Law Review

It is important to keep in mind throughout this discussion that awareness and acknowledgement of the existence of a problem, even a very serious problem, should not make us overreact and thereby accept an unworkable solution in our zeal to do something. The imposition of punitive damages is, for the most part, just such an unworkable solution. More specifically, I will attempt to demonstrate that, with the possible exception of the case of the recidivist, non-alcoholic defendant, the imposition of punitive damages simply cannot be justified. That being the case, we must look elsewhere for a solution to an admittedly …

The Impact Of State Farm V. Alexander On Uninsured And Underinsured Motorist Coverage Generally, And In To Relation To The Owned-But-Not -Insured Exclusion, Shawn Gordon Lisle

Akron Law Review

The discussion contained herein will commence with a brief examination of the uninsured and underinsured motorist statute's purpose.

Following the discussion of the uninsured motorist statute's purpose, the discussion will proceed to survey all cases to date which have had occasion to deal with Alexander in a substantive manner. Nine of the twelve Ohio appellate districts have considered the Alexander decision in some respect. Likewise, the Ohio Supreme Court has cited to Alexander as authority for reversing appellate court decisions which upheld exclusions violative of R.C. § 3937.18's purpose. Each decision shall be presented and examined in turn, grouped either …

Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton

Timothy D. Lytton

This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …

Shareholder Litigation Without Class Actions, David H. Webber

Faculty Scholarship

In this Article, I imagine a post-class action landscape for shareholder litigation. Assuming, for the sake of this exercise, an environment in which both securities-fraud and transactional class actions are hobbled by procedural or substantive reforms — most likely through the adoption of mandatory-arbitration provisions or fee-shifting provisions — I assess what shareholder litigation would disappear, what would remain, and what a post-class action landscape would look like. I argue that loss of the class action would remove a layer of legal insulation that prevents institutional investors from having to pursue positive value claims against companies. Currently, the class action …

The Uneasy Case For Food Safety Liability Insurance, John Aloysius Cogan Jr.

John Aloysius Cogan Jr.

Assessing The Insurance Role Of Tort Liability After Calabresi, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

Public Policy And Aviation Liability Insurance, William E. Gibbs

Pepperdine Law Review

No abstract provided.

In California Excess Liability Cases, Does “Bad Faith” In Law Equal “Strict Liability” In Practice?, Roger D. Marlow, Ronald E. Magnuson

Pepperdine Law Review

No abstract provided.

Regulation By Liability Insurance: From Auto To Lawyers Professional Liability, Tom Baker, Rick Swedloff

All Faculty Scholarship

Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with public regulators. We describe these activities in general terms and then draw upon prior literature to explore them in the context of five areas of liability and corresponding insurance: shareholder liability, auto liability, gun liability, medical professional liability, and lawyers’ professional liability. The goal …

Slides: The Role Of Groundwater Sampling/Monitoring: Cogcc Proposed Rule 609, Gene Florentino

Monitoring and Protecting Groundwater During Oil and Gas Development (November 26)

Presenter: Gene Florentino, PG, Walsh Environmental Scientists and Engineers

14 slides

Recent Developments In California Insurance Law: Enforceability Of Stipulated Judgments Against Insurance Carriers, Steven L. Paine, Wynn Heather Sourial

Pepperdine Law Review

No abstract provided.

New Models For The Compensation Of Natural Resources Damage, Michael Faure, Jing Liu

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Transparency Through Insurance: Mandates Dominate Discretion, Tom Baker

All Faculty Scholarship

This chapter describes how liability insurance has contributed to the transparency of the civil justice system. The chapter makes three main points. First, much of what we know about the empirics of the civil justice system comes from access to liability insurance data and personnel. Second, as long as access to liability insurance data and personnel depends on the discretion of liability insurance organizations, this knowledge will be incomplete and, most likely, biased in favor of the public policy agenda of the organizations providing discretionary access to the data. Third, although mandatory disclosure of liability insurance data would improve transparency, …

Fire Losses And Conflicting Judicial Rulings Over Whether Property Insurers Must Indemnify Insureds And Pay Third-Party Claims - Some Implications For Wildfire Litigation In Texas's Courts, Willy E. Rice

Faculty Articles

Wildfires in Texas have generated two interrelated questions: (1) whether insurers have a duty to indemnify residential and commercial property owners if a wild forest, brush, grass, or prairie fire destroys homeowners' property in Texas, and (2) whether insurers have a duty to pay or settle third-party claims in Texas if a property owner starts a fire on her property, which evolves into a wildfire and destroys a third party's residential or commercial property.

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

The Shifting Terrain Of Risk And Uncertainty On The Liability Insurance Field, Tom Baker

All Faculty Scholarship

Recent sociological and historical work suggests that insurance risks often are not reliably calculable, except in hindsight. Insurance is “an uncertain business,” characterized by competition for premiums that pushes insurers into the unknown. This essay takes some preliminary steps that extend this insight into the liability insurance field. The essay first provides a simple quantitative comparison of U.S. property and liability insurance premiums over the last sixty years, setting the stage to make three points: (1) liability insurance premiums have grown at a similar rate as property insurance premiums and GDP over this period, providing yet another piece of evidence …

Cargill V. Ace American Ins. Co.: The Minnesota Supreme Court Reminds Us Of The Value Of Every 2-Year-Old's Favorite Question, Chad Snyder

Journal of Law and Practice

No abstract provided.

Liability Insurance Coverage For Clergy Sexual Abuse Claims, Peter N. Swisher

Law Faculty Publications

This article addresses issues that arise when a policyholder under a standard general liability insurance policy, not containing an express sexual abuse coverage endorsement (or an express sexual abuse exclusion), seeks insurance coverage for sexual abuse claims. Such cases continue to increase in frequency as the legacy of sexual abuse and molestation generates an unrelenting deluge of insurance coverage claims.

The purpose of this article is to explore and analyze the case law and various legal theories supporting and rejecting liability insurance coverage claims involving institutional sexual abuse allegations. This article concludes by recommending a better-reasoned objective concurrent causation legal …

Medical Malpractice (Book Review), Robert B. Leflar

Robert B Leflar

This is a review of Medical Malpractice, by Frank Sloan and Lindsey Chepke. This superb book provides a balanced, comprehensive, factual overview of the structure, flaws, and merits of the U.S. legal system relating to malpractice; the causes of cyclical insurance pricing and availability difficulties; ameliorative initiatives both implemented and proposed; and the political considerations affecting the achievability of leading reform proposals. The authors' evidence-based stances will discommode many participants in the malpractice debate, physicians and trial lawyers alike. The book debunks widely-held "myths of medical malpractice" propounded by medical tort reformers. However, the authors also conclude that "no convincing …

Dirty Property For Dirt Cheap: Cgl Coverage For The Diminished Value Of Contaminated Sites Under Goodstein V. Continental Casualty Co., Daniel S. Cho

Golden Gate University Law Review

In Goodstein v. Continental Casualty CO., the United States Court of Appeals for the Ninth Circuit held that the diminution in sale value of property due to pollution does not constitute "property damage" under a comprehensive general liability insurance policy where the sale contract did not require the buyer to remediate as a condition of the sale. In so holding, the court found that diminished property value is not "physical injury to tangible property," nor is it "damage" that the "insured shall become legally obligated to pay" because of "property damage." However, without determining whether the mere designation of property …