Insurance Law Commons^™

Summary Of Federal Insurance Co. V. Coast Converters, Inc., 130 Nev. Adv. Op. 95, Christian Spaulding

Nevada Supreme Court Summaries

In a dispute between an insured manufacturer and its insurer, the Supreme Court determined that contract interpretation is a question of law, which should be decided by the district court. Further, to determine which policy limit applies, the court must determine on what date the loss became manifest. The manifestation date is generally a question of fact to be decided by the jury, which the district court will apply and determine, as a matter of law, which policy limit applies.

Nondiscrimination In Insurance: The Next Chapter, Mary L. Heen

Law Faculty Publications

Modern federal civil rights legislation prohibits race and gender discrimination in many important sectors of the American economy, including employment, education, public accommodations, housing, and credit. No comparable comprehensive federal civil rights legislation bans race and gender discrimination in the business of insurance-a business at the core of legal and social organization, culture, and finance. Why not?

Our 'Patchwork' Health Care System: Melodic Variations, Counterpoint, And The Future Role Of Physicians, William M. Sage

Faculty Scholarship

This Foreword to a forthcoming symposium on the "patchwork" health care system to be published in the Houston Journal of Health Law & Policy considers whether current reactions to fragmentation in health care represent minor variations on a longstanding theme in US health policy or offer a more substantial counterpoint to that theme. The theme is this: that perfect physicians should be allowed to control health care even if safeguards are needed in practice because real physicians are not perfect. The Foreword previews four scholarly articles featured in the published symposium. It concludes that, while all the articles present original …

Section 1: Moot Court: King V. Burwell, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon

Articles

This article presents the first systematic theoretical and empirical study of highlow agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before trial, constrains any plaintiff’s recovery to a specified range. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing mutually beneficial speculation. Using claims data from a national insurance company, …

Summary Of Century Sur. Co. V. Casino W., Inc., 130 Adv. Nev. Op. 42, Michael Paretti

Nevada Supreme Court Summaries

The court determined whether two distinct provisions of an insurance policy regarding air pollution were subject to multiple reasonable interpretations.

Putting Insurance Reform In The Aca's Rear-View Mirror, William M. Sage

Faculty Scholarship

This Commentary acknowledges and applauds efforts to understand the mechanisms of insurance reform contained in the ACA and to evaluate their success or failure. But the Commentary’s principal purpose is to examine the pros and cons of connecting insurance reform to health care and health—the pen and the french fry—and to convey the importance to the country of moving beyond insurance reform as quickly as possible. The Commentary begins by describing the potential synergies among the three health policy domains and offering reasons why the ACA sought to make simultaneous changes. It then identifies the vulnerabilities that are revealed in …

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 …

Summary Of Wingco V. Gov’T Emps. Ins. Co., 130 Nev. Adv. Op. 20, Michael Paretti, Craig Friedel

Nevada Supreme Court Summaries

The Court determined whether NRS 687B.145(3), which provides that a motor vehicle insurer must offer its insured the option of purchasing medical payment coverage, requires written rejection of medical coverage by the insured to be valid.

The Affordable Care Act, Remedy, And Litigation Reform, Brendan S. Maher

Faculty Scholarship

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher

Faculty Articles and Papers

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Reforming Consumer-Insurer Dispute Resolution In The Auto Insurance Industry, Cassandra Roeder

Student Award Winning Papers

No abstract provided.

The Social Costs Of Choice, Free Market Ideology And The Empirical Consequences Of The 401(K) Plan Large Menu Defense, Mercer Bullard

Connecticut Insurance Law Journal

This article explores the recent “hidden-fee” litigation trend that has consumed the 401(k) world and how recent decisions by these courts will likely result in reduced wealth for workers. The author challenges the “large menu defense” espoused by the Third, Seventh and Eight Circuit Courts of Appeals as not fitting within the intent of ERISA’s “safe harbor.” In addition, the author questions the logic of these decisions by suggesting that courts are evaluating the employers’ legal responsibilities using free-market ideology rather than the fiduciary duties prescribed by ERISA and questions the belief that “large menu” pension benefit plans are wealth-maximizing.

The Surprising Equality Of Retirement Time: Evidence From The Health And Retirement Survey, Anthony Bonen, Teresa Ghilarducci

Connecticut Insurance Law Journal

This article discusses the impact changes to the retirement age may have on the distribution of retirement time. The author investigates the length of time men and women are alive between the date of their retirement and their death, finding that the most critical factor in determining length of retirement time is and individual’s socio-economic status. As a result, the author opines that because individuals in lower economic classes tend to die earlier, increasing the retirement age will impact these individuals disproportionally and increase retirement time inequality.

Rethinking Erisa’S Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik

Connecticut Insurance Law Journal

This article discusses the evolution of retirement income funds from defined benefit packages to 401(k) and IRA accounts and how the changing dynamic has reshaped the way retirees think about post-retirement income. The article outlines the mechanics of 401(k) accounts and rollover IRAs in the post-retirement period and presents questions about the ability of retirees to successfully address the complex issues relating to investment choices including, what entity they entrust their savings to, the volume and source of distributions, and long-term sufficiency planning. The article suggests that an increase in the use of annuities may help to resolve some of …

Overlooked And Underused: Clinical Practice Guidelines And Malpractice Liability For Independent Physicians, Ronen Avraham

Connecticut Insurance Law Journal

This paper discusses how the use of Clinical Practice Guidelines (CPGs) can improve the quality and delivery of healthcare in America. The author states that with the passage of the Patient Protection and Affordable Care Act of 2010 the American healthcare system is in need of re-alignment, specifically challenging the established norms for promulgating CPGs. The article explores the legal evolution of CPGs and new legal avenues for their promulgation by examining their history and purpose. The author concludes by identifying three accountability models and arguing in favor of a private competitive regime for CPGs.

California Dreaming: The California Secure Choice Retirement Savings Trust Act, Edward A. Zelinsky

Connecticut Insurance Law Journal

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual …

Nfl’S Litigation Skates Onto The Ice, Melanie A. Orphanos

Connecticut Insurance Law Journal

This article addresses the insurance implications of the pending concussion litigation between the National Hockey League and its current and former players. The author draws comparisons to similar litigation brought against the National Football League and the NFL's interactions with its insurers to forecast the obstacles the parties in the NHL litigation will face in establishing coverage by the many insurance carriers who have insured the NHL over time. The author identifies obstacles including determining the moment when coverage is “triggered” and whether certain actions by the NHL will preclude coverage and relieve the insurers of their duty to defend …

The Harmonization Of European Contract Law: The Case Of Insurance Contracts, Juan Bataller Grau

Connecticut Insurance Law Journal

The harmonization of European Contract Law for consumers and businesses continues to progress; however, without some standardization of the insurance contract, it will be difficult to achieve a true single market. This Article chronicles the European Union’s activities towards this goal, including the role of the Principles of European Insurance Contract Law, which provides a set of model rules for European legislators. The Article also analyzes: (i) the appropriate legal nature of the instrument of European Contract Law; (ii) the scope of that legal instrument (e.g. whether the instrument should cover both cross-border and domestic contracts, and whether it should …

An Affordable Care Act For Retirement Plans?, Amy B. Monahan

Connecticut Insurance Law Journal

In the United States, the availability of tax subsidies for retirement savings is largely based on an individual’s employment status and whether such individual’s employer has voluntarily chosen to offer a tax-favored savings vehicle. Even where an individual has access to an employer-sponsored retirement plan, such plans are too often suboptimally designed. This article proposes an incremental reform that ensures universal access to tax-favored retirement savings irrespective of employment status or employer decisions. Borrowing from the model of the Affordable Care Act, the article calls for the creation of an optional, universally available retirement plan, which would be designed according …

Retirement Policies And Related Social Changes In The Lifecycle, Russell K. Osgood

Connecticut Insurance Law Journal

This Essay argues that retirement policies, including retirement income and healthcare sufficiency, should be crafted in light of demographic and lifestyle changes rather than as a means to solve a larger fiscal problem. The author studies work force demographics and life expectancy in the decades following WWII as compared to today and discusses how other nations have attempted to solve the same problems currently facing the United States. As a means of addressing the increasing fiscal demands of paying for retirement, the article proposes an “omnibus” plan that extends the retirement age, introduces “means testing” for certain benefits as well …

Reinsurance As Governance: Governmental Risk Management Pools As A Case Study In The Governance Role Played By Reinsurance Institutions, Marcos Antonio Mendoza

Connecticut Insurance Law Journal

Scholars have eloquently detailed the “Insurance as Governance” concept, the potential capacity for reinsurer regulatory influence on insurers, and the many aspects under which these theories may arise. This Article takes the next step in analyzing the complex reinsurer-insurer relationship through empirical research into how carriers are actually influenced by reinsurers, and what effect this has on the parties. As a case study in the governance role played by reinsurance institutions, this Article organizes survey interview responses of senior officials in the governmental entity self-insured risk management pool sector into four distinct discussion areas: (i) how reinsurers influence pools in …

Information & Equilibrium In Insurance Markets With Big Data, Peter Siegelman

Connecticut Insurance Law Journal

Asymmetric information makes the behavior of insurance markets very difficult to predict. But this Article argues that the increasing use of Big Data by insurers will not result in forecasts of loss that are so accurate that they eliminate uncertainty, and with it, the possibility of insurance. Big Data techniques might lead to a “flip” in informational asymmetry, resulting in a situation in which insurers know more about their customers than the latter know about themselves. But the effects of such a development could actually be benign. Finally, the Article considers the potential for Big (or at least, More) Data …

Medical Big Data And Big Data Quality Problems, Sharona Hoffman

Connecticut Insurance Law Journal

Medical big data has generated much excitement in recent years and for good reason. It can be an invaluable resource for researchers in general and insurers in particular. This Article, however, argues that users of medical big data must proceed with caution and recognize the data’s considerable limitations and shortcomings. These include data errors, missing information, lack of standardization, record fragmentation, software problems, and other flaws. This Article analyzes a variety of data quality problems and then formulates recommendations to address these deficiencies, including data audits, workforce and technical solutions, and regulatory approaches.

Payment Protection Insurance (Ppi) Misselling: Some Lessons From The Uk, Andromachi Georgosouli

Connecticut Insurance Law Journal

The misselling of Payment Protection Insurance (“PPI”) is a longstanding problem in the UK. The Treating Customers Fairly (“TCF”) initiative was introduced to tackle this problem but, despite its sophisticated inception, its effectiveness has been limited. This Article canvasses the main features of TCF as a management-based approach to regulation and highlights its initial appeal. Against this backdrop, it draws on the recent UK experience with recurring instances of PPI misselling to offer an account of the principal causes of its shortcomings in the retail financial sector. It argues that the perceived failure of this regulatory approach may be attributed …

Fortuity Victims And The Compensation Gap: Re-Envisioning Liability Insurance Coverage For Intentional And Criminal Conduct, Erik S. Knutsen

Connecticut Insurance Law Journal

Insurance is based on the notion that only uncertain, or fortuitous, losses are insurable. There are systemic problems, however, with the consistency in which fortuity clauses are applied in the liability insurance context. Differing interpretive approaches and litigation distortions include the use of at least three interpretive perspectives and two substantive requirements to interpret the intentional act fortuity clause, and four interpretive perspectives to interpret the criminal act fortuity clause. These problems stem from the tension between the two purposes of liability insurance (wealth protection and victim compensation) coupled with a move from explanatory rhetoric about fortuity to explanatory rhetoric …

Minding The Gap: Seeking Autism Coverage In Class Actions When State And Federal Laws Fail, Danielle M. Jaffee

Connecticut Insurance Law Journal

This Note examines the recent trend towards class actions to challenge insurers’ denial of autism treatment coverage. The author examines how state and federal laws regarding insurance coverage of autism treatment creates a gap allowing insurers to deny coverage, even in spite of the overwhelming proof of the beneficial nature of autism treatment for autistic individuals. Past individual challenges of insurers’ actions gave little guidance to consumers about the legal obligations of insurers for autism treatment and recent collective action has done little to provide more. The author examines the decisions of three courts determining the certification of class challenges …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Connecticut Insurance Law Journal

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

Big Data And Insurance Symposium, George Jepsen

Connecticut Insurance Law Journal

This Article reproduces the keynote address delivered by Connecticut Attorney General George Jepsen at the University of Connecticut School of Law’s Spring 2014 Big Data and Insurance Symposium. In his address, Attorney General Jepsen describes the opportunities and challenges associated with the use of big data technologies. He stresses the need to consider personal privacy concerns at every step of the data collection and analysis processes. Moreover, he argues that self-policing is not enough and that it is vital for the government to play a role in defining and enforcing individual privacy protections. Attorney General Jepsen concludes by calling for …

Towards A European Supervisory Authority, Javier Vercher-Moll

Connecticut Insurance Law Journal

Regulation (EU) no. 1094/2010, which established a European Insurance and Occupational Pensions Authority, may involve a major change to the management and supervision of private insurance in Spain and in the European Union. Thus, this Article analyzes the evolution from the original Insurance Committee, which boasted only advisory functions, to this new Authority, which has been given decision-making functions in addition to its advisory ones. The Article concludes by suggesting that in the future, this new Authority will be the sole supervisory body operating in all Member States, demonstrating a progression towards a new conception of supervision and regulation of …