Litigation Commons^™

Timeless And Ahead Of Its Time: Lach's V. Fidelity & Casualty Of New York, Jeffrey W. Stempel

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The publication of Judge Keeton's important article “inventing” the reasonable expectations doctrine in 1971 is notable for infusing a good deal of intellectual energy into the study of insurance law, particularly judicial decisions about insurance coverage. Keeton's article, which deduced from cases the principle that courts tended to interpret policies to vindicate the objectively reasonable expectations of the insured, has rightly been viewed as a milestone. It clarified an area of law long seen as inconsistent or result-oriented. It spurred additional important scholarship in the area and elevated insurance caselaw from something of a backwater to at least a respectable …

A Mixed Bag For Chicken Little: Analyzing Year 2000 Claims And Insurance Coverage, Jeffrey W. Stempel

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A visitor from another planet reading the popular and insurance trade press would probably conclude that the world stands on the abyss of a business, tort, and insurance crisis of unprecedented proportion. Media coverage of an impending Year 2000 “crisis” has reached a fevered pitch, with predictions of both a gigantic volume of Year 2000 claims and a correspondingly large amount of insurance coverage litigation. Many predict that the Year 2000 problem (also known as the “Y2K” or “Millennium Bug” problem) will create coverage controversies and costs dwarfing major insurance battles of the late twentieth century such as those concerning …

Domtar Baby: Misplaced Notions Of Equitable Apportionment Create A Thicket Of Potential Unfairness For Insurance Policyholders, Jeffrey W. Stempel

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Minnesota has an enduring reputation as a progressive, even liberal state hospitable to the underdog and concerned for fairness. This is hardly a surprise for the home state of prominent liberal politicians such as Hubert Humphrey, Walter Mondale, Eugene McCarthy and Paul Wellstone. The perception of Minnesota liberalism, populism, or pro-plaintiff sympathies extends to the technical legal realm as well. Lawyers know about prominent Minnesota cases favoring claimants. Many are reprinted in casebooks or otherwise disproportionately well-known. Most recently, Minnesota was again in the news as the state unwilling to join in a proposed national settlement of claims against the …

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

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In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

Reason And Pollution: Construing The "Absolute" Pollution Exclusion In Context And In Light Of Its Purpose And Party Expectations, Jeffrey W. Stempel

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Responding to the flurry of environmental coverage litigation over the application of the “sudden and accidental” pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion, which provides that the insurance does not apply to bodily injury or property damage “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.” A “pollutant” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, …

Interpreting Insurance Policies, Jeffrey W. Stempel

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Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

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Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …