Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 7 of 7
Full-Text Articles in Law
Policyholder Rights To Independent Counsel: Issues Remain Regarding Compensation, Supervision Of Counsel, Jeffrey W. Stempel
Policyholder Rights To Independent Counsel: Issues Remain Regarding Compensation, Supervision Of Counsel, Jeffrey W. Stempel
Scholarly Works
More than 30 years ago, a California appellate court decision (San Diego Navy Federal Credit Union v. Cumis Insurance Society, 162 Cal. App. 3d 358 (4th Dist. 1984)) worked a revolution of sorts by ruling that, in cases of conflict between an insurer and a policyholder defending against a plaintiff's claim, the insurer was obligated to permit the policyholder to select its own defense counsel rather than having the case defended by an attorney selected by the insurer. The Cumis movement was more evolutionary than revolutionary in Nevada. Until State Farm Mutual Automobile Ins. Co. v. Hansen, …
Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel
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
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 primacy …
The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel
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 "Other" Intermediaries: The Increasingly Anachronistic Immunity Of Managing General Agents And Independent Claims Adjusters, Jeffrey W. Stempel
The "Other" Intermediaries: The Increasingly Anachronistic Immunity Of Managing General Agents And Independent Claims Adjusters, Jeffrey W. Stempel
Scholarly Works
This article addresses the "other" intermediaries involved in the administration of insurance policies, specifically "downstream" intermediaries, who are engaged in the administration of insurance claims. The focus is on managing general agents, third-party administrators and independent contractor claims adjusters, who perform the nuts-and-bolts tasks of the insurance industry, and are generally less well compensated than commercial insurance brokers. Since these "other" intermediaries are immune from judicial claims by policyholders, they are also less incentivized to perform their duties well. The article argues that, in order to improve the claims process, the "other" intermediaries should be held accountable for their misconduct, …
Domtar Baby: Misplaced Notions Of Equitable Apportionment Create A Thicket Of Potential Unfairness For Insurance Policyholders, Jeffrey W. Stempel
Domtar Baby: Misplaced Notions Of Equitable Apportionment Create A Thicket Of Potential Unfairness For Insurance Policyholders, Jeffrey W. Stempel
Scholarly Works
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 …
Unmet Expectations: Undue Restriction Of The Reasonable Expectations Approach And The Misleading Mythology Of Judicial Role, Jeffrey W. Stempel
Unmet Expectations: Undue Restriction Of The Reasonable Expectations Approach And The Misleading Mythology Of Judicial Role, Jeffrey W. Stempel
Scholarly Works
A complete and open embrace of the pure version of the doctrine as enunciated in Judge Keeton's famous article--which expressly provides for finding coverage consistent with the objectively reasonable expectations of the policyholder even where those expectations are contradicted by apparently clear policy language --is viewed by much of the legal and political mainstream as too inconsistent with the prevailing American paradigm of judicial restraint, strict construction of disputed texts, and minimal government involvement in market activity. Some of this resistance to reasonable expectations is the product of an unrealistic reification of the prevailing American politico-legal philosophy of judicial restraint. …