Law Commons^™

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 …

Uninsured Motorist Coverage: Can A Signed Waiver In Statutory Form Be Relied Upon In California, Duane Heffelbower

Golden Gate University Law Review

No abstract provided.

Failure To Allocate? Nobody Pays: Using Miller Shugart Settlements In Cases Of Questionable Insurance Coverage, Jerome Abrams

Journal of Law and Practice

No abstract provided.

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

All Faculty Scholarship

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. …

Medical Malpractice Liability Crisis Or Patient Compensation Crisis?, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

This Article is organized as follows. Part II summarizes the common rhetoric in tort reform debates that places the blame for rising premiums on the liability system and touts tort reform as the cure-all for ailing insurance markets. It then summarizes empirical results, produced using Texas closed claims data and other data, which suggest not only that Texas tort reform advocates wrongly placed blame on the liability system, but also that noneconomic damages caps passed in 2003 have caused more harm than good. Part III describes results that suggest that the widely used tactic of pointing to jumbo jury verdicts …

Liability Insurance At The Tort-Crime Boundary, Tom Baker

All Faculty Scholarship

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance …

A Selective Appraisal Of The P&I Insurance System With Special Reference To Claims For Personal Injury, Illness And Loss Of Life, Mya Thida Lin

World Maritime University Dissertations

No abstract provided.

Incentive Effect Of Liability Rules In The Presence Of Liability Insurance In The Maritime Law Context: An Economic Analysis, Muhammad Masum Billah

Dalhousie Law Journal

Incentive effect of liability law may be affected by the presence of liability insurance. Apparently when a party has liability insurance and does not have to pay directly from its own pocket, it will have less motivation to exercise proper care. This tendency of an insured is known as "moral hazard." There are many studies on the problem of "moral hazard" and on various mechanisms how to address it. Yet, there is a lack of academic discussion on comparative analysis between liability law and liability insurance in terms of their effect on creation of incentives; that is, whether liability law …

Insuring Corporate Crime, Miriam Hechler Baer

Indiana Law Journal

Corporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability-particularly the manner in which it is currently applied by the federal government---creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover civil penalties associated with the entity's employee-related criminal conduct. …

Malpractice Payouts And Malpractice Insurance: Evidence From Texas Closed Claims, 1990-2003, Charles Silver, Kathryn Zeiler, Bernard Black, David Hyman, William Sage

Faculty Scholarship

Background. This study is the first to quantify physicians' malpractice insurance limits. It also examines the connection between policy size and payments on claims, including the frequency of settlement at the policy limits and the frequency of out-of-pocket payments.

Methods. Statistical analyses using data collected by the Texas Department of Insurance (TDI) covering all insured medical malpractice claims against physicians closed between 1990 and 2003 with payment of $25,000 or more (measured in 1988 dollars).

Results. Contrary to conventional wisdom, per-occurrence limits of $500,000 or less were as common as $1 million limits. Nominal policy size was stable over time, …

Incentive Effect Of Liability Rules In The Presence Of Liability Insurance In The Maritime Law Context: An Economic Analysis, Muhammad Masum Billah Dr.

Muhammad Masum Billah Dr.

Incentive effect of liability law may be affected by the presence of liability insurance. Apparently when a party has liability insurance and does not have to pay directly from its own pocket, it will have less motivation to exercise proper care. This tendency of an insured is known as “moral hazard.” There are many studies on the problem of “moral hazard” and on various mechanisms how to address it. Yet, there is a lack of academic discussion on comparative analysis between liability law and liability insurance in terms of their effect on creation of incentives; that is, whether liability law …

The Illinois Supreme Court Gives Policyholders A Break From The Two Front War, John S. Vishneski Iii

Northern Illinois University Law Review

For many years, Illinois policyholders faced the prospect of a two-front war whenever they submitted a liability insurance claim. Insurers who did not believe they owed coverage could "honor" their duty to defend by filing a lawsuit against their insureds seeking a declaration of non-coverage, thereby forcing their policyholders to defend against the underlying claim and against their own insurer. The Illinois Supreme Court, in the Midwest Sporting Goods case, has brought the two-front war era to an end. As explained in this article, insurers in doubt over coverage must now at least pay their policyholders' defense costs in the …

The Judgment-Proof Society, Stephen G. Gilles

Washington and Lee Law Review

No abstract provided.

A Crack In The Shield? Malpractice Coverage At Risk, Daniel S. Kleinberger

Faculty Scholarship

A recent, unreported opinion of the Minnesota Court of Appeals has opened up a major hole in the liability shield of professional firms. Continental Casualty Co. v Duckson-Carlson, LLC, misapplies the doctrine of equitable estoppel, misinterprets the Minnesota Professional Firms Act, ignores the fundamental distinction between an entity and its owners, and sub silentio turns the law of third party beneficiaries on its head. From a practical perspective, the decision should trouble every lawyer, doctor, accountant, and other "319B" professional in the state and, moreover, has serious implications for individuals covered by D&O insurance

Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Large audit firms may believe that they are too big to fail. Arthur Andersen's 2002 criminal indictment reduced their number from five to four, and the government decided in 2005 to avoid indicting KPMG for crimes it admitted committing. If audit firms interpret the government's reluctance to indict as signaling aversion to tough action against them, moral hazard arises. This offsets auditing improvements mandated by the Sarbanes-Oxley Act of 2002 that are designed to strengthen auditors' reputations with managers for thoroughness and improve financial statement reliability. Neutralizing this moral hazard requires a credible alternative industry structure so that when a …

Can The Injured Pet Owner Look To Liability Insurance For Satisfaction Of A Judgment? The Coverage Implications Of Damages For The Injury Or Death Of A Companion Animal, Mark Sadler

Animal Law Review

Much has been written in recent years regarding the important role pets play in our society and the legal consequences that have developed from that relationship. Both our courts and legislatures have recognized, in certain circumstances, the ability of a pet owner to recover from a wrongdoer in the event of negligent or intentional conduct that results in the death or injury of a companion animal. However, securing a damages award and recovering on a judgment secured may present the aggrieved pet owner with two entirely different challenges. Liability insurance coverage is critical to the latter concern. This paper provides …

The 1851 Shipowners' Limitation Of Liability Act: Should The Courts Deliver The Final Blow?, Mark A. White

Northern Illinois University Law Review

This comment identifies the 1851 Shipowners' Limitation of Liability Act as an enduring problem within federal maritime law and suggests that the courts may be able to exercise their powers of judicial review to strike it down. The Act was initially adopted at a time when American shipowners were in dire need of protection from potentially ruinous lawsuits. The Act, although hastily drawn, was imperative to the growth of the fledgling American shipping industry. By the end of the nineteenth century, however, numerous forms of liability insurance had been created and America saw the advent of the corporate form. These …

Insuring Liability Risks, Tom Baker

All Faculty Scholarship

Recent dramatic increases in prices for medical liability insurance, directors and officers insurance, and other lines of commercial liability insurance, together with the exit of some insurers from those lines of business, has placed liability insurance on the public agenda. At the same time, asbestos and environmental losses continue to mount under general liability insurance policies sold long ago, when no one could have predicted the extent or cost of such losses. In combination, these and other related events have raised serious concerns about the insurability of liability risks and have prompted calls for dramatic efforts to roll back the …

A Model Financial Statement Insurance Act, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability (ssrn.com/abstract=554863), this Article presents the terms of a national enabling statute to implement this concept. The Model Financial Statement Insurance Act uses the architecture of the U.S. Trust Indenture Act of 1939. It authorizes issuer application for qualification, in connection with annual proxy statement filings, of policies of financial statement insurance. The Model FSI Act deems a series of provisions necessary to achieve securities law objectives to be part of all financial statement insurance policies so proposed, and requires insurers to …

Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liability, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Positioned in a lively current debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This breaks from the existing securities regulation framework to draw directly on insurance markets and law. Based on upon an evaluation of major structural and policy-related features of the concept, the assessment prescribes a framework to permit companies, on an experimental-basis and with investor approval, to use financial statement insurance as an optional alternative to the existing model of financial statement auditing backed by auditor liability.

The financial statement insurance concept, pioneered by …

Fire Protection And Safety Regulation Of Fireworks: Prohibits Unlicensed Pyrotechnic Displays Before Proximate Audiences, Caskey Adam

Georgia State University Law Review

The Act requires any person or company operating a pyrotechnic display before a proximate audience to obtain from the Safety Fire Commissioner a license, which may only be obtained upon proof that the applicant has liability insurance of at least $1,000,000. Applicants desiring to operate a pyrotechnic display before a proximate audience must also follow the same permitting procedures required of individuals operating a fireworks display. Furthermore, the permit may be granted only if the local fire official has approved the site. The probate judge must send the Safety Fire Commissioner a copy of each permit issued to ensure that …

Using Environmental Insurance To Manage Risk Encountered In Non-Traditional Transactions, Janice E. Falini

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Mandating Environmental Liability Insurance, Benjamin J. Richardson

Duke Environmental Law & Policy Forum

No abstract provided.

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

Scholarly Works

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 …

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

Scholarly Works

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 …

Choice Of Law And Forum Clauses And The Recognition Of Foreign Country Judgments Revisited Through The Lloyd's Of London Cases, Courtland H. Peterson

Louisiana Law Review

No abstract provided.

Enforcement Of The Assault And Battery Exclusion In Louisiana: Hickey V. Centenary Oyster House, David A. Szwak

Louisiana Law Review

No abstract provided.

The Trigger Of Coverage For Cancer: When Does Genetic Mutation Become "Bodily Injury, Sickness, Or Disease"?, Donald T. Ramsey

Santa Clara Law Review

No abstract provided.

Discrimination As Accident, Amy L. Wax

Indiana Law Journal

No abstract provided.

Self-Insurance As Insurance In Liability Policy "Other Insurance" Provisions, Rory A. Goode

Washington and Lee Law Review

No abstract provided.