Law Commons^™

Rethinking Principals Of Comparative Fault In Light Of California's Proposition 51, James A. Gash

Pepperdine Law Review

No abstract provided.

Big Business Beware: Punitive Damages Do Not Violate Fourteenth Amendment According To Pacific Mutual Life Insurance Co. V. Haslip, Christopher V. Carlyle

Pepperdine Law Review

No abstract provided.

Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch

Pepperdine Law Review

No abstract provided.

Reimbursing Hazardous Waste Cleanup Costs Under Cercla: A Move Toward Re-Establishing A Faithful Application Of State Insurance Law, Gary M. Miller

Pepperdine Law Review

No abstract provided.

Exposure, Manifestation Of Loss, Injury-In-Fact, Continuous Trigger: The Insurance Coverage Quagmire , Nicolas R. Andrea

Pepperdine Law Review

No abstract provided.

The Nature Of Risk Preferences: Evidence From Insurance Choices, Levon Barseghyan, Francesca Molinari, Joshua C. Teitelbaum, Ted O'Donoghue

Georgetown Law Faculty Publications and Other Works

The authors use data on insurance deductible choices to estimate a structural model of risky choice that incorporates "standard" risk aversion (diminishing marginal utility for wealth) and probability distortions. They find that probability distortions--characterized by substantial overweighting of small probabilities and only mild insensitivity to probability changes--play an important role in explaining the aversion to risk manifested in deductible choices. This finding is robust to allowing for observed and unobserved heterogeneity in preferences. They demonstrate that neither Kőszegi-Rabin loss aversion alone nor Gul disappointment aversion alone can explain our estimated probability distortions, signifying a key role for probability weighting.

Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar, Kyle D. Logue

Michigan Law Review

This Article explores the potential value of insurance as a substitute for government regulation of safety. Successful regulation of behavior requires information in setting standards, licensing conduct, verifying outcomes, and assessing remedies. In various areas, the private insurance sector has technological advantages in collecting and administering the information relevant to setting standards and could outperform the government in creating incentives for optimal behavior. We explore several areas that are regulated more by private insurance than by government. In those areas, the role of the law diminishes to the administration of simple rules of absolute liability or no liability, and affected …

Selling Structured Settlements: The Uncertain Effect Of Anti-Assignment Clauses , Gregory Scott Crespi

Pepperdine Law Review

No abstract provided.

Assuring Quality Long-Term Care In America, Thomas D. Begley Jr., Jo-Anne Herina Jeffreys

Marquette Elder's Advisor

Ninety percent of the 76 million baby boomers will be retired by the year 2030, and many will eventually need a continuum of care. The authors suggest that financing such care is primarily a middle-class problem, and suggest that making long-term care coverage both mandatory and universal, such as through a government program, may be the best way to spread the risk.

Does The Individual Mandate Coerce?, Sergio Campos, Raphael Boleslavsky

Sergio J. Campos

The Patient Protection and Affordable Care Act includes an individual mandate which penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This Essay questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …

Internet Resources For Long-Term Care Insurance, Robin C. Schard

Marquette Elder's Advisor

This article looks at long-term care insurance on the Web. The various perspectives represented and information provided by insurance governance, organizations, consumer advocacy groups, and insurance companies create a solid basis for beginning the decision making process with regard to LTC insurance.

The Secondary Market For Life Insurance Policies: Uncovering Life Insurance's "Hidden" Value, Neil A. Doherty, Brian A. O'Dea, Hal J. Singer

Marquette Elder's Advisor

Increasingly common usage of the secondary market for life insurance policies is discussed in this article which explains the secondary market and describes the benefits of viatical and life settlement firms as well as accelerated death benefits. Changing regulations of the secondary market and suggested ways for counselors to assist clients in specific circumstances are included.

Medicare Advantage Private Fee-For-Service Plans: What Privatization Means For Today's Beneficiaries, Melissa M. Ostrowski

Marquette Elder's Advisor

Originally solely a government-administered program, Medicare is now offering options involving private insurers. Private fee-for-service plans may offer additional benefits and lower out-of-pocket costs. These plans are expected to have lower administrative costs, but currently require a government subsidy. Advantages and disadvantages of such plans are discussed, and examples showing detailed cost comparisons of two plans, SmartValue Classic and Humana Gold Choice, are given.

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 …

Is The Middle East Moving Toward Islamism After The Arab Spring? The Case Study Of The Egyptian Commercial And Financial Laws, Radwa S. Elsaman Ms., Ahmed Eldakak Mr.

Radwa S Elsaman

The parliamentary elections that followed the Egyptian Revolution witnessed an unprecedented success for Islamists as they secured an overwhelming majority of seats, suggesting that they may intend to amend many laws to bring it in compliance with the Islamic Shari’a. This article addresses legal challenges that will face the new majority if they decide to Islamize laws and regulations related to business and finance. Particularly, the article discusses Islamic money theory, trade, banking systems, consumer protection, insurance, competition, and tax systems. The article analyzes the Egyptian business and finance laws to examine whether they comply with Islamic law. It then …

Gender Factor In The Insurance Law: Recent Development Of The Ecj In Context With The U.S. Approach, Vadim Mantrov

Vadim Mantrov

This essay discusses recent development of the Court of Justice of the European Union (ECJ) on lawfulness of the use of the gender factor in calculation of insurance premiums and benefits. After summarizing effective regulation of the United States and the European Union, the essay provides not only relevant facts and reasoning of the ECJ but also critical review of this reasoning and reveals differences of approaches between the U.S. Supreme court and the ECJ. Still, it concludes that the ECJ left door open for possible adaptations for lawfulness of the use of gender factor in future.

Some Thoughts On Health Care Exchanges: Choice, Defaults, And The Unconnected, Brendan S. Maher

Faculty Scholarship

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance “exchanges.” Among other things, exchanges are intended to aid consumers in making simple and transparent choices regarding the purchase of health insurance. This Article considers how exchanges might benefit from the use of “default” options — both online and off. Given the significant number of Americans that have limited or no Internet access, offline defaults may be an attractive way to promote coverage of the “unconnected.”

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

Deconstructing International Distributive Justice: Fairness As Insurance, Ilan Benshalom

Ilan Benshalom

A common perception among international relations policymakers and theorists is that states’ primarily self-serving motivations inhibit their participation in promoting international distributive-fairness considerations. This Article asserts that this notion is significantly incomplete and misleading; it results in deficient theories and, more importantly, in sub-optimal international arrangements. The deficiency of current approaches is that they view distributive fairness as only performing a normative wealth redistribution function and fail to recognize its practical insurance function. In a very crude way, “distributive fairness” means that countries should pay for the provision of international public goods (e.g., controlling global warming by reducing emissions) according …

Insurance Hb 47, Georgia State University Law Review

Georgia State University Law Review

No abstract provided.

Imdeminification And Insurance: Who Is To Blame?—Engineering & Construction Innovations, Inc. V. L.H. Bolduc Co., 803 N.W.2d 916 (Minn. Ct. App. 2011), Eric M. Carpenter

Journal of Law and Practice

No abstract provided.

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Journal Articles

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Journal Articles

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel, Sarig Armenian, David Mcclure

Scholarly Works

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Fire Losses And Conflicting Judicial Rulings Over Whether Property Insurers Must Indemnify Insureds And Pay Third-Party Claims - Some Implications For Wildfire Litigation In Texas's Courts, Willy E. Rice

Faculty Articles

Wildfires in Texas have generated two interrelated questions: (1) whether insurers have a duty to indemnify residential and commercial property owners if a wild forest, brush, grass, or prairie fire destroys homeowners' property in Texas, and (2) whether insurers have a duty to pay or settle third-party claims in Texas if a property owner starts a fire on her property, which evolves into a wildfire and destroys a third party's residential or commercial property.

Effect Of Financial Relationships On The Behaviors Of Health Care Professionals: A Review Of The Evidence, Christopher Robertson, Susannah Rose, Aaron Kesselheim

Faculty Scholarship

This symposium paper explores the empirical evidence regarding the impact of financial relationships on the behavior of health care providers, specifically, physicians. We identify and synthesize peer-reviewed data addressing whether financial incentives are causally related to patient outcomes and health care costs. We cover three main areas where financial conflicts of interest arise and may have an observable relationship to health care practices: physicians’ roles as self-referrers, insurance reimbursement schemes that create incentives for certain clinical choices over others, and financial relationships between physicians and the drug and device industries. We found a well-developed scientific literature consisting of dozens of …

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Christopher C. French

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Christopher C. French

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Christopher C. French