Law Commons^™

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

Several decisions rendered by the Georgia Court of Appeals which we discussed (and a few of which we criticized) in last year's survey were further clarified or overruled by the Georgia Supreme Court. As has been the pattern over the years, Georgia courts during this survey period reinforced that when any ambiguity exists in an insurance contract, courts will construe the contract in favor of finding coverage for the insured. However, when no ambiguity exists on the face of the insurance contract, courts will strictly enforce the provisions as written, and will rarely find any public policy preventing enforcement. One …

Wind Versus Water: Why 'Proximate Cause' Should Help, Not Hurt, Policyholders Who Seek Coverage For Hurricane Claims, Rhonda D. Orin

ExpressO

“Wind Versus Water: Why ‘Proximate Cause’ Should Help, Not Hurt, Policyholders Who Seek Coverage for Hurricane Claims” examines the clash between the “efficient proximate cause” doctrine of insurance law, which holds that coverage exists if the dominant cause of a loss is a covered peril, with the now-ubiquitous “anti-concurrent causation clauses” added to homeowners’ and business insurance policies, which exclude coverage for damages caused by a named event (such as flood) “regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” The article reviews various state laws and court rulings that have placed …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Louisiana Appellate Practice & Procedure: An Overview For Legal Practicioners, Jonathan C. Augustine

Jonathan C. Augustine

Appellate practice and procedure is a specialized field. In several ways, the written and oral advocacy skills essential for success in appellate practice are very different from those used by trial court practitioners. This Article’s was written to highlight some of those differences and to recommend strategies for success in appellate practice. This Article, written by a seasoned appellate advocate and former Louisiana Supreme Court law clerk, provides a practical perspective on keys to successful appellate advocacy, using the governing rules and procedures of Louisiana’s judicial system as case study. In addition to detailing the various standards of review under …

An Economic Assessment Of Damage Caps In Medical Malpracitce Litigation Imposed By State Laws And The Implications For Federal Policy And Law, Paul Wazzan

ExpressO

Many states have implemented laws which limit non-economic (e.g., pain and suffering) damages as a result of medical malpractice. These laws are seen by proponents as reducing medical malpractice insurance costs and preserving access to health care – especially for lower income individuals. Opponents believe that individuals are harmed through being prevented from seeking a full measure of redress for medical malpractice incidents, by reducing access to the court system, and that these laws simply enrich insurance companies and doctors.

Federal lawmakers are currently studying the potential effect of uniform medical malpractice damage limits at the national level. It is …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

Advertisements Misrepresentation And Remedies, Narsimha Rao A.V

Dr. A.V Narsimha Rao

Advertisements, with their effective designs and statements, influence people in their decision-making. With the exaggerated information, advertisments mislead and dissatisfy the consumer, who in turn becomes a bad advertiser. Due to this, the advertisers face embarrassing situations and pay a heavy price for their mistake. So it is essential to formulate a policy for advertising and make sure they work within the legal framework and in accordance with the codes created for the purpose of maintaining advertisement standards.

Word Games: Raising And Resolving The Shortcomings In Accident-Insurance Doctrine That Autoerotic-Asphyxiation Cases Reveal, Sam Erman

Michigan Law Review

This Note argues that autoerotic asphyxiation deaths are accidents and not the results of intentionally self-inflicted injuries. Part I formally analyzes accident-insurance case law to show that current, viable approaches to accident insurance indicate that autoerotic asphyxiation deaths are accidental. Part II claims autoerotic asphyxiation deaths should not trigger intentionally self-inflicted injury exclusion clauses because the practice does not intentionally injure. This Note concludes beneficiaries should recover when accident-insurance policyholders die during autoerotic asphyxiation.

Terrorism Risk In A Post-9/11 Economy: The Convergence Of Capital Markets, Insurance, And Government Action, Robert J. Rhee

UF Law Faculty Publications

September 11 changed the American economy and the global insurance market. The insurance industry no longer covers terrorism risk for "free." The traditional insurance mechanism alone cannot spread the risk of repeated catastrophic losses. Beyond the Terrorism Risk Insurance Act of 2002 lingers the questions of a longterm solution and government's role therein. Government can assume different roles: reinsurer, wealth (re)distributor, regulator, or a combination thereof. This article suggests that the government should foster a regulatory and tax environment in which the private sector can develop a capital market solution for terrorism risk. Securitization is an alternative to reinsurance and …

An Examination Of Reinsurers’ Associations In Underlying Claims: The Iron Fist In The Velvet Glove?, Louis Torch

The University of New Hampshire Law Review

[Excerpt] “The onslaught of environmental and asbestos claims coupled with the aftermath of the terrorist attacks of September 11, 2001, and their deleterious effects on the commercial property reinsurance industry, has left insurers and reinsurers reeling. This article submits that the iron fist in the velvet glove has replaced the once gentlemanly handshake that cemented contractual relations between cedent and reinsurer. The case law reveals that both cedent and reinsurer share the blame for this markedly adversarial shift. As the cases in this article demonstrate, cedents bear responsibility for shortcomings in their underwriting and claims handling, and reinsurers have often …

Consumer-Directed Health Care And The Chronically Ill, John V. Jacobi

University of Michigan Journal of Law Reform

Insurance plans with consumer-controlled spending accounts are advocated as tools for reducing health costs and empowering consumers. This Article describes their recent development and argues that they are likely to fail. Instead of focusing on the small number of consumers with chronic illnesses who account for the bulk of health spending they focus on the majority of relatively well consumers. This Article proposes market-based and regulatory changes focused on high-cost patients. To best serve cost and quality goals, health finance responsibility should be divided between consumers and their employers for predictable and routine costs, and government for chronic and catastrophic …

Puncturing The Funnel—Saving The "Any Willing Provider" Statutes From Erisa Preemption, Sharon Reece

University of Arkansas at Little Rock Law Review

No abstract provided.

"To Sue Or Not To Sue": The Past, Present And Future Of Construction Defect Litigation In Nevada, Robert J. Aalberts

Nevada Law Journal

No abstract provided.

Tangible Cash For An Intangible Loss? Insurance Coverage For Damage Or Loss Or Third-Party Data, Kendall Bodden

Washington Journal of Law, Technology & Arts

Will general business insurance cover liability for electronic data loss? A recent change to Commercial General Liability language specifies that data is not “tangible property” for CGL coverage. However, many companies may still be covered by older policies that do not contain this express exclusion. Case law interpreting the older policy language tends to deny coverage for the lost data itself, but successful claims have been made based on the loss of use of hardware caused by a data loss.

Whiten V. Pilot Ins. Co.: The Unofficial Death Of The Independent Wrong Requirement And Official Birth Of Punitive Damages In Contract, Yehuda Adar Dr.

Yehuda Adar Dr.

Three years have passed since the Supreme Court of Canada rendered its controversial decision in Whiten v. Pilot Insurance Co. In that case, the Court affirmed an almost unprecedented punitive damage award by a jury of one million dollars against an insurance company. More importantly, the Whiten decision appears to be the first attempt by the Supreme Court to construct a comprehensive set of rules and principles in light of which punitive damages cases should be decided in the future. While the extraordinary monetary sanction upheld by the Court has attracted much attention in legal and commercial circles, it seems …

E Pluribus Unum -- Out Of Many, One: Why The United States Needs A Single Financial Services Agency, Elizabeth F. Brown

Elizabeth F Brown

The United States needs to consolidate the over 115 existing state and federal agencies that regulate banking, securities and insurance firms and their products and services into a single, federal financial services agency; a U.S. Financial Services Agency (“US FSA”). The US FSA would be able to more effectively regulate the U.S. financial services industry than the existing regulatory regime. The current U.S. financial regulatory regime suffers from a range of problems, including an inability to anticipate and plan for future financial crises, an inability by regulators to quickly adapt to market innovations and developments, inconsistent regulations for financial products …

Telling Stories About Health Insurance: Using New Films In The Classroom, Elizabeth Pendo

Articles

In keeping with the theme of "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. It builds upon a presentation that I gave along with Professors Timothy S. Hall and Ross D. Silverman at the 2004 Health Law Teachers Conference entitled "Health Law, Policy and Media," and was inspired by Professor Paul Bergman's …

Follow The Money: Erisa Plan Investments In Mutual Funds And Insurance, 38 J. Marshall L. Rev. 867 (2005), Nell Hennessy

UIC Law Review

No abstract provided.

Use Of Colossus To Measure The General Damages Of A Personal Injury Claim Demonstrates Good Faith Claims Handling, Dawn R. Bonnett

Cleveland State Law Review

Because the law of bad faith is the most volatile of the causes of action, this Note will discuss how using Colossus demonstrates good faith claims handling by insurance companies. Initially, this Note will discuss how Colossus works so readers have an understanding of the product. Following the Colossus section, the Note will discuss the history of bad faith. Finally, this Note will analyze how Colossus assists insurers in meeting the different good faith standards across the nation.

In Re Adelphia Communications Corp. (Decided Dec. 5, 2003), Phillip Mahoney

NYLS Law Review

No abstract provided.

Tax Law Uncertainty And The Role Of Tax Insurance, Kyle D. Logue

Articles

In the broadest sense, this is an article about legal or regulatory uncertainty and the role that private and public insurance can play in managing it. More narrowly, the article is about tax law enforcement and the familiar if ill-defined distinctions between tax evasion, tax avoidance, and abusive tax avoidance. Most specifically, the article is about a new type of tax risk insurance policy, sometimes called tax indemnity insurance or transactional tax risk insurance that provides coverage against the risk that the Internal Revenue Service (Service) will disallow a taxpayer-insured's tax treatment of a particular transaction. The question is whether …

The Insurable Interest Requirement For Life Insurance: A Critical Reassessment, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to critically reassess the insurable interest requirement in life insurance coverage disputes in light of the present needs of contemporary American society, including analysis of: (1) legal interpretations and underlying public policy rationales supporting such an insurable interest; (2) who is legally entitled to an insurable interest in the life of another; (3) when an insurable interest must exist; (4) when an insurable interest is-or should be-extinguished; (5) who may challenge the lack of an insurable interest; (6) whether an insurable interest in life insurance is subject to waiver or estoppel defenses; and (7) …

Erisa: State Regulation Of Insured Plans After Davila, 38 J. Marshall. L. Rev. 693 (2005), Donald T. Bogan

UIC Law Review

No abstract provided.

Section 409a-Treasury "Newspeak" Lost In The "Briar Patch", 38 J. Marshall L. Rev. 743 (2005), Richard Ehrhart

UIC Law Review

No abstract provided.

Beating The 'Wrap': The Agency Effort To Control Wraparound Insurance Tax Shelters, Charlene Luke

UF Law Faculty Publications

The first wraparound insurance tax shelter was marketed in the mid-1960s as a means for contract owners to exploit the inconsistency arising from the difference in the tax treatment of investment returns earned inside variable insurance contracts and the economically similar returns available outside such contracts. Federal income tax is deferred (and in some cases eliminated) on the income accruing inside variable insurance products - called inside buildup. In the most recent iteration of the wraparound insurance gambit, insurance companies wrapped private-placement, hedge-fund interests inside variable insurance products in order to allow contract owners to defer tax on the ordinary …

Taking One For The Team: Should Colleges Be Liable For Injuries Occurring During Student Participation In Club Sports?, Nick White

Vanderbilt Journal of Entertainment & Technology Law

Since the 1970s, colleges have not been liable for their adult students' actions or injuries, but courts have since delineated many exceptions to this rule. This Note will analyze the effect of college involvement in club sports as to whether it creates a duty for a college to protect its club athletes and those they might injure. This Note will also examine whether such a duty might exist in the future if the current trends in the law and college policy continue unchecked. Finally, this Note will address the effectiveness of the current defenses to liability and the effect of …

Foreword: The State Of America’S Health Care System, Tommy G. Thompson

William Mitchell Law Review

Thanks to technology, innovation, and creative entrepreneurs, Americans in the twenty-first century enjoy a wide variety of products and services that would astonish previous generations. Many of these innovations allow them to prevent, treat, cure, and recover from serious injuries and diseases that were once fatal. While medical knowledge and technology have surged ahead, some parts of the health care industry are still struggling to catch up. These include the ability to keep patient records up to date, prevent medical errors, and compensate patients promptly and fairly when errors do occur. The U.S. Department of Health and Human Services continues …

Erisa Stock Drop Cases: An Evolving Standard, 38 J. Marshall L. Rev. 889 (2005), Craig C. Martin, Elizabeth L. Fine

UIC Law Review

No abstract provided.