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Insurance Law Commons

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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 ...


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 ...


Cost Containment And The Patient Protection And Affordable Care Act, David Orentlicher 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Cost Containment And The Patient Protection And Affordable Care Act, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher discusses the need for containing costs, as well as increasing access, for health case in the United States. He argues that for decades, the U.S. health care system has grappled with two key problems - inadequate access to coverage and increasingly unaffordable health care costs. During the debate that led to the enactment of the Patient Protection and Affordable Care Act, public officials recognized the need to address the problems of both access and cost, but in the end, the Act does far more about increasing access than it does about cutting costs. Professor Orentlicher ...


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 ...


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.


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 ...


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.


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 ...


Are You Covered? The Need For Improvement In Insurance Coverage For Autism Spectrum Disorder, 44 J. Marshall L. Rev. 291 (2010), Marissa Mazza 2010 John Marshall Law School

Are You Covered? The Need For Improvement In Insurance Coverage For Autism Spectrum Disorder, 44 J. Marshall L. Rev. 291 (2010), Marissa Mazza

The John Marshall Law Review

No abstract provided.


Health Reform: What's Insurance Got To Do With It? Recognizing Health Insurance As A Separate Species Of Insurance, Wendy K. Mariner 2010 Boston University School of Law

Health Reform: What's Insurance Got To Do With It? Recognizing Health Insurance As A Separate Species Of Insurance, Wendy K. Mariner

Faculty Scholarship

Health insurance can be, and to a large extent already is, a separate species of insurance. This article describes the different views of insurance that made health reform contentious. It argues that the goals of health reform are incompatible with conventional views of insurance. Nonetheless, reforming health insurance to achieve those goals does not require as dramatic shift as some might think, because health insurance has already become primarily a means of paying for health care, rather than a simple risk spreading device for specified losses.


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.


Insuring Understanding: The Tested Langauge Defense, Michelle Boardman 2009 George Mason University School of Law

Insuring Understanding: The Tested Langauge Defense, Michelle Boardman

Michelle Boardman

No abstract provided.


Tontines For The Invincibles, Tom Baker, Peter Siegelman 2009 university of connecticut law school

Tontines For The Invincibles, Tom Baker, Peter Siegelman

Peter Siegelman

No abstract provided.


Readability, Contracts Of Recurring Use, And The Problem Of Ex Post Judicial Governance Of Health Insurance Policies, John Aloysius Cogan Jr. 2009 University of Connecticut

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

John Aloysius Cogan Jr.

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 ...


Managing Medical Bills On The Brink Of Bankruptcy, Melissa B. Jacoby, Mirya Holman 2009 University of North Carolina at Chapel Hill

Managing Medical Bills On The Brink Of Bankruptcy, Melissa B. Jacoby, Mirya Holman

Melissa B. Jacoby

This paper presents original empirical evidence on financial interactions between medical providers and their patients who go bankrupt. We use a nationally representative sample of people who filed for bankruptcy in 2007 to compare two popular but hotly contested methods of measuring medical burden. By applying both methods to the same filers, we find that nearly four out of five respondents had some financial obligation for medical care not covered by insurance in the two years prior to filing as measured by the survey method. The court record method paints a different picture, with only half of the cases containing ...


Consnet To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella 2009 Selected Works

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

David F. Tavella

CONSENT TO SETTLE? A NEW TWIST IN THE TRI-PARTITE RELATIONSHIP BY DAVID F. TAVELLA Abstract This article examines the ethical obligations of defense counsel retained by a party’s insurance company regarding settlement of a case. The article examines the traditional relationship between an insured and retained defense counsel. the article next examines some alternative theories to describe the relationship, and the duties and obligation with each theory. The article next looks at the relationship between the insurer and insured, particularly the insurer’s ability to settle a case without the insured’s consent. The article next discusses defense counsel ...


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