Insurance Law Commons^™

Catastrophic Oil Spills And The Problem Of Insurance, Kenneth S. Abraham

Vanderbilt Law Review

The BP oil spill of 2010 focused considerable attention on the operating conduct of BP, on the potential liability of BP and other entities associated with the spill, and on the fund that BP established to provide compensation to victims of the spill. Much less attention has been paid, however, to the nature and scope of insurance covering losses caused by catastrophic environmental disasters such as oil spills. BP's establishment of the Gulf Coast Claims Facility, and the compensation that will be paid by that facility, will likely dampen awareness of the mismatches between the resulting losses and the insurance …

Litigating Bp's Contribution Claims In Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, Bruce L. Hay, Christopher Rendall-Jackson, David Rosenberg

Vanderbilt Law Review

In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident risk. Participants in such ventures generally have the option to determine by contract beforehand whether to subject themselves to contribution claims and, if so, whether such claims will be resolved by a publicly funded court or by a privately funded process, such as arbitration. Because …

The Commodification Of Insurance Defense Practice, Herbert M. Kritzer

Vanderbilt Law Review

In this paper, I present an analysis of insurance defense practice using the heuristic of a commodity.7 Essentially, I argue that many, perhaps even most, insurance companies have come to view the more routine work of insurance defense as something to be purchased in a marketplace where there are a large number of interchangeable providers.8 Loyalty between buyer and seller, to the extent that it had been an important element of the relationship, has faded. Today, insurance companies frequently shop for the best deal, which may include producing insurance defense services in-house rather than purchasing those services from an outside …

The "Sudden And Accidental" Exception To The Pollution Exclusion Clause In Comprehensive General Liability Insurance Policies: The Gordian Knot Of Environmental Liability, Sharon M. Murphy

Vanderbilt Law Review

From 1973 to 1985, comprehensive general liability (CGL) insur- ance policies contained a pollution exclusion clause.' The plethora of litigation spawned by this clause, however, has done little to clarify either its meaning or its relationship to the policy as a whole.' Uncertainty regarding the scope of liability coverage under this clause drives many of the hazardous waste and toxic tort lawsuits filed. Courts have interpreted the pollution exclusion clause variously, often admitting that the law in this area is a confusing array of policy arguments and conflicting drafting histories. Part II of this Note sets forth the historical framework …

Defining The Contours Of Erisa Preemption Of State Insurance Regulation: Making Employee Benefit Plan Regulation An Exclusively Federal Concern, Lawrence A. Vranka, Jr.

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act (ERISA) in 19741 to address problems in the area of employee pensions and benefits, with which prior federal enactments and complementary state regulation had been unable to cope. ERISA established a comprehensive scheme that placed the regulation of qualified employee benefit plans exclusively in federal hands.' The drafters of ERISA also sought to reserve to the states the power to regulate areas in which they traditionally had primacy--most notably, insurance, banking, and securities. The drafters of ERISA thus attempted to carve out an area of "exclusive federal concern," while preserving state regulation …

The Myth Of The Liability Insurance Claims Explosion: An Empirical Rebuttal, David J. Nye, Donald G. Gifford

Vanderbilt Law Review

A perceived crisis in the nation's liability insurance system erupted in 1986. Some businesses saw their insurance premiums double in a period of two years, and others found the coverages they required to-tally unavailable. While trial lawyers and consumer groups asserted that insurance company investment and pricing practices, as well as huge profits, had caused the crisis, others alleged that an increased"claims consciousness" among the American public had spawned the liability insurance affordability and availability problems. Richard Berman, a national representative of the United States Chamber of Commerce, proclaimed that the judicial system had "gone berserk" and that litigation was …

The Mccarran-Ferguson Act: A Time For Procompetitive Reform, Laurence M. Hamric

Vanderbilt Law Review

State insurance regulation may be broadly divided into two categories. The first generally encompasses those laws that are directed toward protecting the insurance fund so that a policy holder can be secure in his reliance on his insurer's ability to pay its obligations. An assumption underlying this Note is that such regulation, despite its imperfection and effect on competition, is both socially and economically desirable. Thus the problems with state regulation aimed at ensuring the financial reliability and solvency of insurance companies" will not be considered here. Rather, this section of the Note will outline the second category of state …

Insurance -- 1954 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

There were only two cases reported during the survey period on the subject of liability insurance. In the first of these, Rural Education Ass'n, Inc. v. American Fire & Casualty Co., the insured had notice of an accident on the day it occurred. Suit for injuries growing out of the accident was filed nearly seven months later, and not until the day after suit was filed did the insured notify the insurer of the accident. After judgment was obtained against it, the insured brought the present suit against its insurer. The insurance policy required that notice be given "as soon …

A Survey Of Financial Responsibility Laws And Compensation Of Traffic Victims: A Proposal For Reform, Lorence L. Timm

Vanderbilt Law Review

One of the most acute socio-economic and legal problems confronting society today concerns the compensation of traffic victims. In 1966, there were 52,500 persons killed as a result of traffic accidents,'which constituted nearly one-half of all accident fatalities. In addition, 868,000 persons were injured, and the total cost of motor vehicle accidents was estimated at ten billion dollars. As a result of the steadily rising accident toll, there has been increased concern over means of insuring that victims of automobile accidents will be compensated. This concern has been aggravated by the continued presence of the financially irresponsible motorist. The problem …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Mexican Bilateral Divorce Decree Recognized Even Though Neither Party was a Mexican Domiciliary At Time of Divorce

=============================

Constitutional Law--Section 504 of LMRDA a Bill of Attainder

=============================

Corporations--DeFacto Merger--Dissenters' Rights--Construction of Merger and Amendment Statutes

=============================

Criminal Law--Search and Seizure--Standing Granted for Dyer Act Prosecutions Without Allegation of Possession

=============================

Damages--Restitutionary Relief for Breach of Contract Granted Under the Tucker Act to a Government Contractor

=============================

Federal Employers' Liability Act--Applicability of "In Whole or in Part" Rule of Proximate Cause to Employer's Efforts To Prove Contributory Negligence Plaintiff brought suit under the Federal Employers' Liability Act'

============================= …

Insurance -- 1964 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

In Phoenix Ins. Co. v. Brown,' the named insured in a fire policy was Walter Brown. Walter had at one time owned the property insured. He had, however, conveyed it to his divorced wife Elsie, for whom he "was looking after the property," prior to the taking out of this policy. It was not alleged that the defendant's agent (who had previously written other policies on the property in Walter's name at the time Walter was the title-holder) knew of the conveyance to Elsie. After total destruction by fire the defendant refused to pay on the grounds of the lack …

Evidence -- 1964 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The difficulty in dealing with presumptions arises in part from the fact that the term embraces a host of different meanings, varying with the purposes underlying the presumption in a given situation. Unfortunately, the courts seldom articulate the meaning which they are attributing to the term and consequently do little to clear up the confusion... In Arnett v. Fuston, a negligence action, plaintiff argued that a verdict of not guilty against one of the two co-defendants was not supported by any evidence, and that a presumption should apply against him "for his election to stand on his motion for directed …

The Divisibility Of Warranties In Insurance Policies, Jerald H. Sklar

Vanderbilt Law Review

The doctrine of substantial compliance, and other rules of construction such as the rule calling for an interpretation of warranties as being promissory rather than continuing, are familiar and frequently applied. When applied in favor of the insured, the usual result is to find that the insured has not breached the warranty. This note deals with a less frequently employed tool of beneficent interpretation and one whose thrust is different, the divisibility of warranties. The doctrine of divisibility does not result in a finding of "no breach"; instead it admits the breach, but deems it immaterial because it is not …

Corporations Insuring Employees' Lives, E. Ralph Cotham, Iv

Vanderbilt Law Review

The Sixth Circuit Court of Appeals' in 1959 reversed a tax court holding that a life insurance contract taken out by a corporation to insure an employee's life was a wagering contract because neither the corporation nor the beneficiary possessed an insurable interest in the employee's life and that the proceeds were thus not excludible as an amount received "under a life insurance contract." In 1964 the Fifth Circuit Court of Appeals affirmed a federal district court's judgment entered on a jury's verdict that a corporation, which was both owner and the beneficiary of a life insurance policy, had no …

Insurance -- 1963 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

1. Definition of "Temporary Substitute Automobile." Defendant issued a public liability policy covering insured's use of a described vehicle (a 1955 Ford) as a taxicab. The policy contained a standard temporary substitute automobile clause, covering a non-owned auto-mobile "while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its break-down, repair, servicing, loss or destruction."

==========================

2. Application of Automobile Policy Liability Limits. A husband and wife (hereinafter H and W) were injured in an accident caused by the insured. In their actions against the insured W was awarded 4,500 dollars and H …

The Financing Of Benefits In Unemployment Insurance, Ernest J. Eberling

Vanderbilt Law Review

The current federal-state unemployment insurance system has been in operation throughout the country for over a quarter of a century. As one of the two major social insurance programs created by the Social Security Act of 1935, it has become generally accepted as one of the nation's most important measures against the privation of unemployment and as a stabilizer of the economy in helping offset the down drag on economic activity resulting from excessive joblessness. Despite its general acceptance, however, it has been subjected to vigorous controversy in recent years. Criticism of the program has focused largely upon two issues, …

Creditors' Rights And Security Transactions -- 1963 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Mechanics Liens

Hammer-Johnson Supply, Inc. v. Curtis,' presented a new aspect of the recurring question of the duty of a supplier of materials to apply payments from a known source to the debt incurred for that source.

====================

Assets Available to Creditors

In re Jennings' presented the question of whether the proceeds from a medical payment clause of a liability insurance policy are free from the claim of creditors.

====================

Miscellaneous

In Murdock Acceptance Corp. v. Jones, a deed of trust was executed by Jones and his wife to secure payment of "$5000.00, together with any and all other indebtedness …

Third-Party Liability And Adjustments Between Different Employers And Insurance Carriers In Tennessee, William J. Harbison

Vanderbilt Law Review

In this article the author discusses the Tennessee law as to the relative positions of employers and third party tort feasors in workmen's compensation situations. After discussing the employer's right to subrogation to his employee's right of action, the employer's right to a lien on any recovery in such an action, and the right of the third party to indemnity from the employer, he concludes by treating the problem of joint and successive employers, taking special note of the heretofore untapped resources of the Tennessee Second Injury Fund.

Insurance -- 1962 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

The courts of Tennessee were confronted by a number of interesting problems of insurance law during 1962. For the most part, the results were neither startling nor unsettling. There were, however, decisions that seem to qualify previous opinions, sometimes without citation, and there was one very troublesome opinion concerning credit life insurance.

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Workmen's Compensation--Forum's Use of Foreign State's Tort Law for Recovery Against Third Party Does Not Require Forum's Use of Foreign State's Election Provision in Workmen's Compensation Suit

==============================

Constitutional Law--Advertising-Statute Restricting Size,Number, and Location of Gasoline Price Signs Is Unconstitutional

===============================

Evidence-Attorney--Client Privilege--Applicability When a Corporation Is the Client

===============================

Evidence--Attorney-Client Privilege-Doctor's Report to Attorney on Condition of Client Is Within Privilege

===============================

Federal Jurisdiction--In Federal Question Action Federal Court Is Competent To Exercise In Personam Jurisdiction Over Corporation if It Has Sufficient Contacts With United States

===============================

Federal Rules of Civil Procedure--Counterclaim Not Compulsory in First Suit …

Policyholders' Interest Income From Life Insurance Under The Income Tax, Richard Goode

Vanderbilt Law Review

Life insurance policies usually combine pure insurance and saving features. This fact is recognized by the industry and by those who draw up national economic accounts but is not fully reflected in the income tax. None of the return on saving through life insurance is taxed to a policyholder prior to the maturity, redemption, or surrender of a policy. Part of the return, but apparently only a small fraction of the total, is taxed when policies mature for reasons other than the death of the insured or are redeemed or surrendered. Inasmuch as most forms of investment income are taxable, …

Insurance -- 1961 Tennessee Survey (Ii), Robert N. Covington

Vanderbilt Law Review

The Tennessee decisions in the field of insurance law during the survey period dealt almost exclusively with problems that may be characterized as the selection and control of risks. The importance of the principles used in the solution of these problems is obvious. Only by being able to select carefully those risks for which insurance will be offered can the insurer properly determine the premium that is to be charged. If policy language is interpreted to grant broader coverage than that actually intended, then the insurance fund is subjected to greater potential loss than estimated,so that the insurer's profits will …

Insurance -- 1961 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

The developments in the Tennessee law of insurance during the past year were important without being surprising. The various courts delivered opinions dealing with a number of the central issues in insurance law, especially in the field of risk control, and by and large followed the line of thinking established by past years. Many of the decisions are of less significance than one might suppose, because of their extreme involvement in particular fact situations.

Ancillary Rights Of The Insured Against His Liability Insurer, Robert E. Keeton

Vanderbilt Law Review

The primary right of the insured against his liability insurer is the right to reimbursement of loss falling within the coverage defined in the policy. The scope of that right is ordinarily determined by construction of the clauses defining the Bodily Injury Liability and Property Damage Liability Coverages.' The present article is concerned with ancillary rights, arising in part from these and other policy provisions and in part from the relationship created by liability insurance. These rights of the insured are, from the opposite point of view, duties of the insurer--duties concerned principally with settlement of the tort claim or …

Semi-Direct Action Against Liability Insurers: Current Problems, Ronan E. Degnan

Vanderbilt Law Review

The legislatures of the various states of the union have by and large seen fit to forbid actions by an injured party directly against a liability insurer. This limitation, founded upon policy reasons which are doubtless apparent to the reader, has led the interested parties to seek out various indirect or semi-direct methods for reaching the insurance fund. This article is designed to discuss two particularly difficult problems which have arisen because of this semi-direct mode of proceeding: (1) By what appropriate methods can a judgment be obtained against a nonresident tort feasor or his estate so as to create …

Overlapping Coverages In Liability Contracts; Subrogation, John A. Appleman

Vanderbilt Law Review

Within the last twenty-five years, approximately, a considerable transition has taken place in approaching the coverages of automobile policies. At one time, liability insurers used to require their policy-holders to pledge that they did not carry other insurance of like character. It is difficult to understand why this situation ever arose. It may have been an outgrowth of fire coverages, or health and accident provisions, in which a moral hazard actually might exist where excessive protection is carried. Thereafter, instead of making this a matter of warranty, policies frequently provided that in the event there should be any other valid …

Automobile Policy Exclusions, A. L. Plummer

Vanderbilt Law Review

The exclusions in the automobile liability insurance policies have required much litigation to clarify and interpret the intent of the draftsmen and underwriter who wrote them. An exclusion takes away or modifies certain coverages given in the insuring agreements. The giving and taking-away provisions of insurance policies are necessary in the making of a limited contract. They tend to avoid duplication of coverage, limit the assumed risk or hazard, avoid underwriting the primary liabilities of others that should be covered by other policy forms, and otherwise limit the scope of coverage. Since 1936 there has been a constant effort by …

Insurance Coverage Against Explosion Damage, William C. Brewer Jr.

Vanderbilt Law Review

Astronomers tell us that the world began with an explosion, and common sense tells us that it may end with one. Today, the explosion is the symbol of the corruption of knowledge. It has always suggested the devastation of property and the tragedy of death, reminding us that man is never in full control of the forces he has loosed for his material benefit. When accidental explosion became frequent enough for consideration by actuaries, it became a natural subject for insurance. It is proposed here to survey the contractual provisions under which explosion may be insured, and to examine briefly …

Insurance -- 1960 Tennessee Survey, William R. Andersen

Vanderbilt Law Review

One of the most delicate problems in insurance underwriting is that of describing the events whose occurrence is the primary condition of the insurer's obligation to pay. Several interesting cases were decided during the survey period involving disputes over whether or not an insured event had occurred.

Loading And Unloading, Norman E. Risjord

Vanderbilt Law Review

Since the automobile liability policies cover the use, loading and unloading of automobiles anywhere, the general liability policies (comprehensive or manufacturers and contractors or owners, landlords and tenants) correspondingly exclude, substantially, coverage for the automobile while away from premises owned, rented or controlled by the named insured, or the ways immediately adjoining, or the loading or unloading thereof. While the general liability policies do cover the use, loading and unloading of automobiles on premises owned, rented or controlled by the named insured and thus duplicate to a limited extent the coverage under the automobile liability policy where the accident occurs …