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Articles 1 - 17 of 17
Full-Text Articles in Law
On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.
On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.
Faculty Publications
Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.
How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.
The industry’s financial statistics today …
A Light At The End Of The Tunnell?: The Parameters Of Uninsured Motorist Coverage Coverage In Wrongful Death Cases, Edward Wittrig
A Light At The End Of The Tunnell?: The Parameters Of Uninsured Motorist Coverage Coverage In Wrongful Death Cases, Edward Wittrig
Missouri Law Review
As a result, the implementation, application, and interpretation of this important piece of legislation has been left largely to the providence of the Missouri judicial system. When faced with litigation surrounding the UM statute, Missouri courts have often broadly interpreted the statute, extending its coverage to a large class of insureds as well as increasing the maximum amount of recovery possible. Additionally, insurers have often struggled to obtain favorable decisions in Missouri courts, especially in cases appealed to the Supreme Court of Missouri, and have failed to establish a concrete boundary that limits the scope and extent of UM coverage. …
Property Insurance Appraisal: Is Determining Causation Essential To Evaluating The Amount Of Loss , Ashley Smith
Property Insurance Appraisal: Is Determining Causation Essential To Evaluating The Amount Of Loss , Ashley Smith
Journal of Dispute Resolution
While the appraisal procedure is commonly used in property insurance claims, the scope of an appraisal is contested. Courts are divided on whether to allow the determination of causation within an appraisal process. Whether or not to allow the determination of causation in appraisal and the reasoning behind each position can be influential for the majority of state and federal courts who have yet to confront this issue. Outlined below is an overview of the appraisal process within the property insurance context, a distinction of causation from coverage, and courts’ reasoning for allowing or forbidding the determination of causation in …
Too Much Risk: The Impact Of Class Action Lawsuits On Claims Made Insurance Policies, Sean A. Smith
Too Much Risk: The Impact Of Class Action Lawsuits On Claims Made Insurance Policies, Sean A. Smith
Missouri Law Review
The dispute between H & R Block and its excess policy insurers presented the United States Court of Appeals for the Eighth Circuit with an issue of national first impression: does the existence of a series of class action lawsuits prior to the enactment of a claims made insurance policy make it reasonably foreseeable that similar future claims will be filed? 14 The Eighth Circuit's ultimate decision in H & R Block, Inc. v. American International Specialty Lines Insurance Co. will impact insurance coverage of major corporations nationally, in both the narrow context of the upcoming wave of lawsuits against …
Made Whole Doctrine: Unraveling The Enigma Wrapped In The Mystery Of Insurance Subrogation, The, Johnny C. Parker
Made Whole Doctrine: Unraveling The Enigma Wrapped In The Mystery Of Insurance Subrogation, The, Johnny C. Parker
Missouri Law Review
Application of the doctrine of subrogation often occurs at the expense of the insured. As a result, the common law developed the made whole doctrine, which limits the use of subrogation prior to an insured party receiving full compensation for damages. The primary purpose of this article is to explore the made whole doctrine as the principal weapon used by contemporary courts to curb the harsh effect of contractual subrogation on the rights of the insured. Section I of this article provides an overview of the expansion and use of subrogation in various types of insurance contracts. Section II examines …
Insurance Aspects Of Damages, The, Douglas R. Richmond, Robert H. Jerry Ii
Insurance Aspects Of Damages, The, Douglas R. Richmond, Robert H. Jerry Ii
Journal of Dispute Resolution
"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way."' So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …
Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.
Empirical Evidence And Malpractice Litigation, Philip G. Peters Jr.
Faculty Publications
Critics of medical malpractice litigation believe that expert testimony is often anecdotal and biased. To remedy this problem, several have recently suggested that attorneys should provide and courts should seek reliable empirical evidence of actual clinical norms. Their suggestion should be welcomed. If our expectations are realistic and the design pitfalls are avoided, greater use of use of empirical research will improve the fairness of malpractice adjudication. At least in theory, it could be useful in both the "easy" cases (where it reveals that a consensus standard of care exists) and also some of the harder cases (where clinical practices …
The Role Of Jury In Modern Malpractice Law, Philip G. Peters Jr.
The Role Of Jury In Modern Malpractice Law, Philip G. Peters Jr.
Faculty Publications
This article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike …
Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii
Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii
Faculty Publications
Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. Indeed, the assertion that tort law and insurance law are intertwined is utterly unremarkable; many commentators have observed that tort law cannot be understood if the business of insurance and the law regulating it is ignored, and that insurance law cannot be understood if tort law is ignored. Several generations of law students have read casebooks, which in varying degrees pay homage to the connections between torts and insurance. Many law review articles and noteworthy books (or portions thereof) have plumbed the tort-insurance relationship. Although one …
Cybercoverage For Cyber-Risks: An Overview Of Insurers' Responses To The Perils Of E-Commerce, Robert H. Jerry Ii, Michele L. Mekel
Cybercoverage For Cyber-Risks: An Overview Of Insurers' Responses To The Perils Of E-Commerce, Robert H. Jerry Ii, Michele L. Mekel
Faculty Publications
With nearly seven percent of the world's population currently online and e-commerce forecast to hit $6.8 trillion by 2004, one need not be Nostradamus to predict that the Internet means great change for all industries - including the insurance industry. Presently, however, the proverbial cart is leading the horse as the insurance industry struggles to develop strategies to quantify, cover, and contain "cyber-risks." Policyholders also face new challenges as they confront the possibility that their traditional insurance coverages are woefully inadequate either to secure their electronic and intellectual property assets or to guard against their potential e-commerce liabilities to third …
Life Insurance As Security For A Debt And The Applicability Of The Rule Against Wager Contracts, John M. Limbaugh
Life Insurance As Security For A Debt And The Applicability Of The Rule Against Wager Contracts, John M. Limbaugh
Missouri Law Review
Every jurisdiction has a rule against wager contracts, developed to discourage speculation in human life and attendant moral hazard.2 In the life insurance context, the rule in Missouri prohibiting wager contracts applies only "where a policy is taken out by, and premiums paid by, a person who has no insurable interest in the life of the insured, or when a policy has been assigned for speculative purposes."3 The Missouri Supreme Court, in Estate of Bean v. Hazel, correctly limited the creditor's recovery on the debtor's life insurance policy to the amount of the debt, plus interest. However, in doing so, …
Bifurcations Of Consciousness: The Elimination Of The Self-Induced Intoxication Excuse, Derrick Augustus Carter
Bifurcations Of Consciousness: The Elimination Of The Self-Induced Intoxication Excuse, Derrick Augustus Carter
Missouri Law Review
In early American and English common law, intoxication evidence did not excuse or mitigate criminal behavior.! Any person who destroyed his or her volition through intoxication was equally as culpable as a sober person for the legal consequences of a self-induced vice.2 Voluntary drunkenness aggravated, rather than reduced, criminal liability
Consent, Contract, And The Responsibilities Of Insurance Defense Counsel, Robert H. Jerry Ii
Consent, Contract, And The Responsibilities Of Insurance Defense Counsel, Robert H. Jerry Ii
Faculty Publications
This paper examines some of the assumptions on which many contemporary assessments of defense counsel's relationship with the insurer and the policyholder rest, contends that some of the current turmoil in this area is traceable to shaky assumptions, and argues that the drafting of clearer liability insurance contracts would add stability to the relationships. Part I briefly describes the current uncertainty confronting policyholders and defense counsel. Part II explores what the most widely-used liability insurance contracts say about the responsibilities of insurance defense counsel, examining both the context in which these policies are sold and the texts themselves. It contends …
Liability Insurers Get A Fair Deal, James E. Berger
Liability Insurers Get A Fair Deal, James E. Berger
Missouri Law Review
Public policy does not allow insurance against the results of intentional acts. Thus, most liability insurance contracts contain a clause that excludes coverage for bodily injury or property damage intended or expected as a result of an insured's actions These clauses are generally referred to as "intentional acts exclusion clauses" or "intentional injury exclusion clauses." The real question in all cases is what the insurer must show to invoke the exclusion. There are two basic requirements: (1) The act done was intended; and (2) there was some intent for the act to cause injury. Most courts agree that the act …
Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard
Arbitration - Sure, But Only On Our Terms: Escape Clauses In Uninsured Motorist Policies - Schaefer V. Allstate Ins. Co., Steven R. Leppard
Journal of Dispute Resolution
Historically, the insurance industry has widely used arbitration to resolve disputes.2 Insurance companies have increasingly included "escape clauses" in their policies.' These clauses allow an insurance company to ignore an arbitrator's award and have a claim directly heard in a trial court if the award exceeds a pre-determined amount.' The Ohio Supreme Court in Schaefer v. Allstate Insurance Co. addressed this issue and decided that the escape clause was unenforceable due to public policy.'
Knocking Out Motor Vehicle Insurance Household Exclusions: Does The Financial Responsibility Law Cover All Bases, David A. Dick
Knocking Out Motor Vehicle Insurance Household Exclusions: Does The Financial Responsibility Law Cover All Bases, David A. Dick
Missouri Law Review
This Note discusses the issues presented by the conflicts between Missouri's Motor Vehicle Financial Responsibility Law, a legislative act intended to provide compensation for persons injured in vehicular accidents, and contractual exclusion clauses contained in motor vehicle liability insurance policies. A "household" or "family" exclusion clause, the type of liability insurance contract exclusion at issue in Halpin, typically states that no coverage exists for any obligation an insured may have to a member of the insured's family who is residing in the same household as the insured.' The household exclusion is designed to eliminate coverage when one family member's negligence …
Arbitration Awards In Uninsured And Underinsured Motorist Insurance Provisions: Which Public Policy To Apply - Mendes V. Automobile Insurance Co. Of Hartford, L. Dean Wilson
Journal of Dispute Resolution
This Note examines how the Connecticut Supreme Court handled a case involving an automobile insurance policy that called for arbitration of disputes concerning uninsured and underinsured motorist coverage, but allowed either party to demand a trial de novo if unsatisfied With the arbitration award.