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The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp 2010 University of Pennsylvania Law School

The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp

Faculty Scholarship

The 1945 McCarran-Ferguson Act provides that federal legislation generally, including the antitrust laws, is “applicable to the business of insurance [only] to the extent that such business is not regulated by State law.” The statute was enacted after United States v. South Eastern Underwriters Assn. (1944), held that insurance transactions were “interstate commerce” and thus subject to the antitrust laws. That case had in turn undermined the traditional view expressed in Paul v. Virginia (1868), that insurance was not interstate commerce, but strictly local transactions. The South Eastern case followed in turn upon the Supreme Court's decision in Wickard ...


Failure To Allocate? Nobody Pays: Using Miller Shugart Settlements In Cases Of Questionable Insurance Coverage, Jerome Abrams 2010 Mitchell Hamline School of Law

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.


Anything But A Breeze: Moving Forward Without Nfip Wind Coverage, Michael A. Brown 2010 Boston College Law School

Anything But A Breeze: Moving Forward Without Nfip Wind Coverage, Michael A. Brown

Boston College Environmental Affairs Law Review

The storm season of 2005, with the indelible images of Hurricane Katrina stuck in our minds forever, left much of the Gulf Coast devastated. The aftermath of the storm also caused serious damage to the National Flood Insurance Program (NFIP or the Program), which provides federally subsidized flood insurance to communities participating in the Program. Following the storms of 2005, many home and building owners and insurance companies began to disagree about the terms of their agreements and the cause of damage upon these structures. The main point of dispute was whether damage could be attributed strictly to flooding, to ...


Insurance And Climate Change, Greg Munro 2010 University of Montana School of Law

Insurance And Climate Change, Greg Munro

Faculty Journal Articles & Other Writings

This article examines insurance industry awareness of climate change and its implications, what risks it presents to insureds and insurers, what action insurers are taking to address it, and how the insurance industry could be a major force in getting the world to address climate change and mitigate its effects.


Insurance Perspectives On Federal Financial Regulatory Reform: Addressing Misunderstandings And Providing A View From A Different Paradigm, Jeffrey E. Thomas 2010 Villanova University Charles Widger School of Law

Insurance Perspectives On Federal Financial Regulatory Reform: Addressing Misunderstandings And Providing A View From A Different Paradigm, Jeffrey E. Thomas

Villanova Law Review

The article discusses the insurance regulation in the U.S. and its role in the financial crisis. It states that the collapse of American International Group (AIG) was not an insurance regulatory failure. It describes the scope and approach to state insurance regulation and the development and functioning of the National Association of Insurance Commissioners (NAIC). The role played by the courts in insurance regulation is also addressed.


Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman 2010 University of Pennsylvania Law School

Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman

Faculty Scholarship

With momentum toward national health reform, there is wide support for legislation to include an individual mandate that would require all Americans to carry health insurance. Discussion of the individual mandate has relied largely on whether the mandate will generate universal coverage as a gauge for success. This article challenges the notion that an individual mandate is successful if it leads to universal coverage, revealing a critical problem the individual mandate will face even if all Americans were to have health insurance. To uncover this problem, this article sets out a novel framework that disentangles the three different policy objectives ...


Auto Policy Conflicts Of Law In Montana, Greg Munro 2010 University of Montana School of Law

Auto Policy Conflicts Of Law In Montana, Greg Munro

Faculty Journal Articles & Other Writings

This article reviews the conflicts of law cases in Montana in chronological order. The article notes that the Montana Supreme Court followed a clear and predictable set of principles in dealing with the issue of what law applies to the out-of-state auto policy involved in an accident in Montana for almost thirty years, from Kemp in 1979 until Moodro in 2008. The end result of the last two years, however, is a confused abandonment of Montana's materially greater interest in its public policy protection for consumers of auto insurance. The article asserts that this interest needs to be inserted ...


The Unappreciated Inportance, For Small Business Defendants, Of The Duty To Settle, Robert H. Heidt 2010 Indiana University Maurer School of Law

The Unappreciated Inportance, For Small Business Defendants, Of The Duty To Settle, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.


The Mccarran-Ferguson Act's Intersection With Foreign Insurance Companies, Angela D. Krupar 2010 Cleveland State University

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.


Following The Money – The Chaotic Kerfuffle Over Residential Insurance Proceeds That Simultaneously Are The Only Rebuild Funds And The Only Mortgage Collateral, Kenneth S. Klein 2010 California Western School of Law

Following The Money – The Chaotic Kerfuffle Over Residential Insurance Proceeds That Simultaneously Are The Only Rebuild Funds And The Only Mortgage Collateral, Kenneth S. Klein

Faculty Scholarship

In an average year in the United States, 30,000 homes are lost to fire, flood, or another similar disaster. In 2003, one of those homes was mine. Since that time, I have spent literally thousands of hours counseling hundreds of survivors of other disasters (including wildfires, Hurricane Katrina, and the crash of a military jet into a residential neighborhood) on the unique set of emotional, financial, and legal challenges that define their road to recovery. One of the recurring and yet repetitively unanticipated challenges is the tug of war between homeowners and their mortgage lender/mortgage servicer over money ...


Consent To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella 2010 Barry University School of Law

Consent To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella

Barry Law Review

This article discusses the tri-partite relationship in litigation between insurers, the insured, and retained counsel. This article further discusses the complications for plaintiffs who wish to settle a case with defense counsel retained by the insurance carrier, and the ethical considerations that may arise under the Model Rules of Professional conduct when settlement is at the direction of the insurance carrier.


Readability, Contracts Of Recurring Use, And The Problem Of Ex Post Judicial Governance Of Health Insurance Polices, John Aloysius Cogan, Jr. 2010 University of Connecticut School of Law

Readability, Contracts Of Recurring Use, And The Problem Of Ex Post Judicial Governance Of Health Insurance Polices, John Aloysius Cogan, Jr.

Faculty Articles and Papers

While the rhetoric surrounding the passage of the Patient Protection and Affordable Care Act focused on core issues such as cost, quality, and access to care, the dialog rarely acknowledged a key problem-the fact that most Americans do not understand their health insurance. Simply put, consumers do not fully grasp their health insurance coverage because the jargon found in many health insurance contracts is impenetrable to most Americans. This is disconcerting because consumer-oriented information is central to our increasingly consumer-directed health care system. Consumers are expected to make cost-effective choices among the array of health insurance plans that may be ...


The Insurance Policy As Statute, Jeffrey W. Stempel 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

The Insurance Policy As Statute, Jeffrey W. Stempel

Scholarly Works

Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective ...


The "Discretionary Clause" In Erisa Health Insurance Plans, Greg Munro 2010 University of Montana School of Law

The "Discretionary Clause" In Erisa Health Insurance Plans, Greg Munro

Faculty Journal Articles & Other Writings

This article reviews the issue of the power of state insurance commissioners to regulate the use of the discretionary clause under ERISA. The article questions the remarkable power imbalance between insureds and insurers noting the courts' deference to decisions made under discretionary clauses and the abuse of discretion standard.


Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel 2010 University of Hawaii

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel

Scholarly Works

Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but incorrect. Insurance policies are more accurately viewed as bilateral contracts. In addition, the unilateral characterization of insurance policies introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures ...


Tontines For The Invincibles: Enticing Low Risks Into The Health-Insurance Pool With An Idea From Insurance History And Behavioral Economics, Tom Baker, Peter Siegelman 2010 University of Pennsylvania

Tontines For The Invincibles: Enticing Low Risks Into The Health-Insurance Pool With An Idea From Insurance History And Behavioral Economics, Tom Baker, Peter Siegelman

Faculty Scholarship

Over one third of the uninsured adults in the U.S. below retirement age are between 19 and 29 years old. Young adults, especially men, often go without insurance, even when buying it is mandatory and sometimes even when it is a low cost employment benefit. This paper proposes a new form of health insurance targeted at this group—the “Young Invincibles”—those who (wrongly) believe that they don’t need health insurance because they won’t get sick. Our proposal offers a cash bonus to those who turn out to be right in their belief that they did not ...


The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel

Scholarly Works

Insurance policies are classified as a species of contract. Although this characterization is correct, it is unduly narrow if used as the exclusive lens for assessing insurance policies, which are not merely contracts but also are designed to perform particular risk management, deterrence, and compensation functions important to economic and social ordering. Recognizing this has significant implications regarding the manner in which insurance policies are construed in coverage disputes and suggests that policy construction can be improved by not only performing traditional contract analysis of disputed policies but also by appreciating the particular function of the insurance policy in question ...


On The Constitutionality Of Health Care Reform, Barak D. Richman 2010 Duke Law School

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.


The Legal & Business Aspects Of Career-Ending Disability Insurance Policies In Professional And College Sports, Glenn M. Wong, Chris Deubert 2010 Villanova University Charles Widger School of Law

The Legal & Business Aspects Of Career-Ending Disability Insurance Policies In Professional And College Sports, Glenn M. Wong, Chris Deubert

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


Much Ado About Possibly Pretty Little: Mccarran-Ferguson Repeal In The Health Care Reform Effort, Christopher L. Sagers 2010 Cleveland State University

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 ...


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