Insurance Law Commons^™

Frivolous Defenses, Thomas D. Russell

Cleveland State Law Review

This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …

Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

Cleveland State Law Review

ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute’s work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.

The vehemence of insurer opposition seems …

Concussions And Contracts: The National Football League's Limitations To Protecting Its Players From Chronic Traumatic Encephalopathy, Julia Wolpert

Journal of Law and Health

Chronic Traumatic Encephalopathy (CTE) is a neurodegenerative brain injury that has become prevalent among high-contact professional sports, especially American football. More and more retired players are exhibiting symptoms of CTE and being diagnosed with CTE post-mortem. While the neuroscience community constantly releases studies showing a causal connection between brain trauma and CTE, the National Football League (NFL) continues to deny that any brain injury can arise from playing football. The NFL must implement provisions in their contracts to fully inform and protect players from this lethal brain injury. This article examines the repercussions of CTE, how players’ contracts do and …

One Fund Solution And The Pension Crisis, Gordon Butler

Cleveland State Law Review

The next forty years of economic life will be dominated by one underlying theme: dealing with the retirement income security of a growing, aging and longer-lived global population. This is a "can’t run, can’t hide" problem that will affect the lives of almost every human being on the planet . . . Whether you are light in your pension account, whether you have more money than Croesus, whether you live in the well-funded Netherlands, or whether you are a put-upon unambitious young male in Japan who sees no future for himself, you cannot escape this problem.

Before you read very …

The New Flat Tax: A Modest Proposal For A Constitutionally Apportioned Wealth Tax, John Plecnik

Law Faculty Articles and Essays

This Article is the first to propose a solution that complies with the Apportionment Clause without imposing different rates in different states. This Article discusses the practical and administrative issues with implementing a wealth tax in the United States as well as the substantive fairness of such a tax relative to the income and consumption tax regimes. This article describes the Apportionment Clause, so-called direct taxes, and the constitutional issues with implementing a wealth tax. It also describes prior proposals to circumvent the Apportionment Clause for the sake of a wealth tax. It also outlines a modest proposal to pass …

Health Care Sharing Ministries: Scam Or Solution?, Benjamin Boyd

Journal of Law and Health

Health Care Share Ministries (HCSMs) provide “a health care cost sharing arrangement among persons of similar and sincerely held beliefs.” HCSMs are not-for-profit religious organizations that act as clearinghouses for “those who have medical expenses and those who desire to share the burden of those medical expenses. This Article begins with a survey of the general regulatory landscape for HCSMs. Following that, four key questions about HCSMs structure the rest of this Article. The first question asks, what are HCSMs? To answer that question, this Article examines the basic aspects of the Medi-Share program and the Christian Brotherhood Newsletter. Second, …

Surrogacy And Insurance: The Call For Statutory Reform In Ohio, Sasha M. Swoveland

Journal of Law and Health

This Note examines the practice of excluding maternity services for surrogate mothers under insurance plans that cover maternity services. This Note also introduces two different surrogate arrangements and illustrates the different familial situations that may necessitate the use of a surrogate. Part II defines surrogacy and offers a general overview of the surrogacy process. Part III demonstrates that surrogates need insurance for pregnancy related services. It also argues that the exclusion of coverage for surrogates is pregnancy discrimination. Part IV explains why current legal remedies are insufficient to make surrogates whole. Part V analyzes the state of surrogacy examining Ohio …

The Corporate Profit Motive & Questionable Public Relations Practices During The Lead-Up To The Affordable Care Act , John N. Maher

Journal of Law and Health

The purpose of this Article is two-fold: first, to highlight two problems which threaten the effectiveness of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), and second, to invite civic and governmental dialogue to implement solutions to those problems. The Affordable Care Act is tailored to build upon what is good about the existing health care financing system in the United States. It is also calculated to maximize access to quality and affordable health care across the Nation. There remains, however, work that must be done to neutralize risks to the foundational requirements of consistency and …

The Mccarran-Ferguson Act's Intersection With Foreign Insurance Companies, Angela D. Krupar

Cleveland State Law Review

This Note is designed to answer a simple question: must insurance companies incorporated in foreign countries follow the same rules as their competitors incorporated in this country? More specifically, it addresses whether the McCarran-Ferguson Act should reach foreign insurance companies and foreign commerce.

Whom Would Jesus Cover - A Biblical, Ethical Lens For The Contemporary American Health Care Debate, Jeffrey R. Baker

Journal of Law and Health

This paper attempts a view of the contemporary health care debate in America through the prism of Biblical scripture and proposes that people of faith should recognize the current state of the American health care system as a moral crisis of justice and charity. First, I provide a survey of the current state of American health care for the uninsured, describing the demographic and economic circumstances of the uninsured and the resources available to them when they need medical care. Second, I ask whether, in light of scripture, this state of affairs presents a moral question that should drive our …

Form & Reform: The Economic Realities Of The United States Healthcare System, Mark Votruba

Journal of Law and Health

Good afternoon, everybody. My name is Eric Steiger, I'm one of the editors-in-chief from the Journal of Law and Health. And I'm happy to welcome all of you to the second speaker event in the 2009/2010 Journal of Law and Health Speaker Series. Thank you all for coming. Now, I know that the news last week was dominated by the story of Sandra Bullock's breakup; however, some of you might have noticed that a small piece of minor legislation also got passed through Congress last week. And you also might have noticed that it wasn't quite as full of bipartisan …

Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, Christopher L. Sagers

Law Faculty Articles and Essays

Since 1945, the McCarran-Ferguson Act (MFA) has shielded the “business of insurance” from antitrust liability, so long as the challenged conduct is “regulated by State Law” and does not constitute “boycott, coercion, or intimidation.” This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. This Essay asks two questions: (1) what consequences the pending repeal measures might have if one of them becomes law; and (2) what a close examination of this effort might teach us …

A Philosophy Of Privatization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor Bhat Sorresso

Journal of Law and Health

The trend in coping with these rising Medicare costs has been to increase the role that private insurance plays in providing coverage for Medicare recipients. Much of this movement towards an increased "privatization" of Medicare has been born of the belief that the private sector of health care insurance coverage has been made more efficient by existing market forces and will provide a way to both continue providing health care to elderly Americans while containing Medicare costs through these increased efficiencies as exemplified through the managed care model. This premise will be further explored in this article. First, this article …

Use Of Colossus To Measure The General Damages Of A Personal Injury Claim Demonstrates Good Faith Claims Handling, Dawn R. Bonnett

Cleveland State Law Review

Because the law of bad faith is the most volatile of the causes of action, this Note will discuss how using Colossus demonstrates good faith claims handling by insurance companies. Initially, this Note will discuss how Colossus works so readers have an understanding of the product. Following the Colossus section, the Note will discuss the history of bad faith. Finally, this Note will analyze how Colossus assists insurers in meeting the different good faith standards across the nation.

To Preempt Or Not To Preempt: Hmo Liability Pre And Post Pegram V. Herdrich , Adam D. Glassman

Journal of Law and Health

Should consumers have the right to sue their HMOs (health maintenance organizations) for the way they deliver medical care? In recent years, the federal courts have focused their attention upon, inter alia, the issue of whether HMOs have a duty to reveal financial incentive provisions contained in contracts between the HMO plan physicians to plan members and beneficiaries under a health plan. In fact, on June 12, 2000, the United States Supreme Court, in Pegram v. Herdrich, pondered whether HMO physicians and administrators are fiduciaries under the Employee Retirement Income Security Act (ERISA), and if so, must they exercise their …

The Serpent In The Garden Of Eden: A Look At The Impact Of Physician Financial Incentive Programs And A Reconsideration Of Herdrich V. Pegram , Amy L. Cralam

Journal of Law and Health

The impact of physician incentive programs is at the heart of the recent Supreme Court case Herdrich v. Pegram. In Herdrich, the patient, Cynthia Herdrich, challenged the use of a common incentive structure that allowed physicians to profit from decreased utilization of expensive medical procedures.' Ms. Herdrich alleged that the use of these incentive programs created a conflict of interest for her treating physician and that conflict of interest caused a misdiagnosis of her appendicitis." The Seventh Circuit Court of Appeals agreed with Ms. Herdrich but was later overruled by the Supreme Court. This article suggests that Herdrich v. Pegram …

Genomic Medicine: The Human Genome Project From A Healthcare Provider's Perspective, Georgia Wiesner

Journal of Law and Health

But the Human Genome Project from my point of view as a healthcare provider has really been on what advantages and what advances can we be able to provide from that. So we really learned a lot about how genes work, how they talk together and how we actually have both health and disease as a consequence of the Human Genome Project. So really understanding this complex interaction is one of the most exciting things as well. What this really has done for healthcare is allowed us to individualize our healthcare. To be able to say for one person against …

Can Employers Put Genetic Information To Good Use, Kathleen C. Engel

Journal of Law and Health

In my talk today I am going to try to answer the question: Can employers put genetic information to good use? Preparing this talk was a challenge because it required me to switch sides of the table. Having represented plaintiffs in employment discrimination cases for ten years, my inclination is to focus on the ways that employers can use genetic information to the detriment of their workers. I chose to talk about the value of genetic information from the employers' perspective because I wanted to force myself to engage in a disciplined study of the issues, rather than simply don …

Pink Slip Introduction, Dena S. Davis

Journal of Law and Health

What has changed however, is the degree of worry and concern that people feel about the uses to which their genetic information can be put. When the HGP (Human Genome Project) began, a number of pundits were convinced that the "future knowledge" that genetic information can deliver to consumers and insurers alike would completely undermine the practice of private health insurance, and send our current system crashing to the ground. Needless to say, that has not happened; but with 42 million Americans currently without health insurance, and with insurance tightly entwined with employment, many people fear that genetic information will …

Is There A Pink Slip In Your Genes?, J. B. Silvers

Journal of Law and Health

On the insurance company side, it's clear that insurance companies are not well loved by folks. They're not even supposed to do that. At one point after a company had approached QualChoice and told us not to tell the enrollees something that, in fact, had been a policy decision by the company, I was suggesting that perhaps we should change the name to the company to the "Scapegoat Insurance Company," since that really was what we were being paid for, and I think in this argument that may be part of the issue here.

Legislation And Genetic Discrimination, Sharona Hoffman

Journal of Law and Health

State legislation addresses genetic discrimination in both employment and health insurance. Thirty-one states have passed laws that address genetic discrimination in employment. Approximately thirteen states prohibit employers from requiring applicants to undergo genetic testing as a condition of employment. Some states have more limited restrictions. Florida prohibits only the screening of applicants for the sickle-cell trait. Wisconsin requires employers to obtain written and informed consent from applicants prior to administering genetic tests, but does not preclude their utilization altogether. Some states establish exceptions that permit genetic testing that is job-related or that is conducted, with the employee's written and informed …

Genetic Testing And Employment Litigation, Harry Zanville

Journal of Law and Health

I have only a couple of comments to make that relate to litigation hurdles and how to achieve this balance, and the first thing I want to talk about, following the wonderful presentation is, in fact, we probably don't in some ways even need a new cause of action.

Cardiovascular Genetics: Case Studies, Kenneth G. Zahka

Journal of Law and Health

What I'd like to do in the next 10 or 15 minutes is use a case approach which we all use in medicine as you use in law to give you a flavor for how we as clinicians think about things that are oftentimes obviously genetic. But I want to stress to you that probably a day does not go by or a patient does not go by where I don't think in terms of genetic issues for their cardiovascular health.

Gender Discrimination Within The Reproductive Health Care System: Viagra V. Birth Control, Lisa A. Hayden

Journal of Law and Health

This Article begins with an examination of the prescription drug, Viagra and the medical condition it is intended to aid. Additionally, this Article evaluates the five most common, and FDA approved forms of contraceptives: contraceptive pills, intrauterine devices (IUD's), Depo-Provera shots, Norplant inserts and diaphragms. A basic understanding of the above prescriptions is necessary to determine if health care inequity exists between men and women in the area of prescriptive coverage, or if there is such a difference between the medical conditions involved that insurance companies are justified in excluding contraceptive coverage while including Viagra coverage. Part III of this …

Holt V. Grange Mut. Cas. Co. Children Not "Insureds" Under Policy Are Entitled To Death, Barbara Tyler, Thomas S. Tyler

Law Faculty Articles and Essays

The recent Ohio Supreme Court decision of Holt v. Grange Mutual Casualty Co., is a consumer friendly decision and represents both an equitable and sound interpretation and application of Ohio law to consumer insurance contracts.The decision in Holt favors insurance consumers but has alarmed the insurance industry. The industry perceives the decision as bringing into question what language of an insurance policy will be upheld under the freedom of contract and what will be stricken as against public policy. First, the industry would argue that Holt seems to denigrate and abrogate the rights of an uninsurance/underinsurance provider to craft its …

Lovewell V. Physicians Insurance Co.: Personal Liability For Prejudgment Interest , Karin Mika

Cleveland State Law Review

This article discusses the Ohio Supreme Court's decision in Lovewell by walking through the case from trial court to the final Supreme Court decision. The case raises many issues regarding the future of litigation involving parties who refuse to settle pursuant to a contractual right. Although, on the surface, it would appear that the court clarified what entity would ultimately be responsible for paying a prejudgment interest award, its failure to address other issues left open the potential for future litigation concerning the traditional relationship between the insurer and the insured. While Lovewell does not necessarily mean the death knell …

Holt V. Grange Mutual Casualty Co.: Children Not Insureds Under Policy Are Entitled To Death Benefits , Barbara J. Tyler, Thomas S. Tyler

Cleveland State Law Review

The automobile insurance industry is up in arms after a decade of consumer friendly Ohio Supreme Court decisions. The insurance industry and commentators have noted the trend of judicial activism in interpreting insurance contracts. These decisions have been overwhelmingly in favor of consumers and against insurance companies. The Ohio Supreme Court decision of Holt v. Grange Mutual Casualty Co., is another consumer friendly decision and represents both an equitable and sound interpretation and application of Ohio law to consumer insurance contracts. This note walks through the Holt case, starting at the trial court level and working up through the Ohio …

Revisiting The National Flood Insurance Program, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses the hazards proposed by floods, the options for their control, the operation of the National Flood Insurance Program, and the changes made by the 1994 amendments.

The Medicaid Cost Crisis: Are There Solutions To The Financial Problems Facing Middle-Class Americans Who Require Long-Term Health Care, Kenneth Hubbard

Cleveland State Law Review

Medicaid was originally designed as a welfare program to provide healthcare to the poor. Despite the initial intentions of Congress, Medicaid has instead become "a multi-billion-dollar insurance policy" for elderly middle-class Americans who require long-term health care. The Medicaid crisis has been described as "a battle between elderly people's desire for long-term care coverage and their concomitant reluctance to pay for it themselves." This battle is waged between the older and younger generations, commencing when the younger generation observes that their inheritance is growing smaller or disappearing altogether due to the immense cost of their parents' long-term health care.

Unknown Effects Of Wood V. Shepard On Uninsured And Underinsured Motorist Coverage In Ohio, Gary D. Plunkett

Cleveland State Law Review

The Ohio Supreme Court in Wood v. Shepard had occasion to interpret Ohio's wrongful death statute in conjunction with Ohio's uninsured and underinsured motorist statute (UUM). The court held that the wrongful death of an insured creates separate claims that are not subject to a single person limit of liability in the deceased insured's UUM coverage. Wood is a nebulous decision. It overcompensates the deceased insured's surviving family members and turns the deceased insured's UUM coverage into a bottomless well from which the surviving family members may draw compensation. The full effect of Wood is yet unknown. What is known, …