Law Commons^™

Addressing Stigma And False Beliefs About Mental Health: A New Direction For Mental Health Parity Advocacy, Claire Sontheimer, Michael Ulrich

Faculty Scholarship

Despite laws designed to protect mental health and substance use parity in the United States, real parity remains an aspiration. Under the current system, insurance companies use multiple tactics to deny coverage for or delay the provision of mental health and substance use disorder (MH/SUD) treatment. The difficulty of enforcing parity creates a barrier to achieving the goal of accessible behavioral health services. Rather than a continued effort to legislate our way out of this conundrum, it may be useful to look further upstream. Critical impediments to achieving such parity include the basic attitudes and beliefs about mental and behavioral …

The Color Of Property And Auto Insurance: Time For Change, Jennifer Wriggins

Florida State University Law Review

Insurance company executives issued statements condemning racism and urging change throughout society and in the insurance industry after the huge Black Lives Matter demonstrations in summer 2020. The time therefore is ripe for examining insurance as it relates to race' and racism, including history and current regulation. Two of the most important types of personal insurance are property and automobile. Part I begins with history, focusing on property insurance, auto insurance, race, and racism in urban areas around the mid-twentieth century. Private insurers deemed large areas of cities where African Americans lived to be "blighted" and refused to insure all …

The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo

St. Mary's Law Journal

Texas House Bill 214 (H.B. 214) is subject to challenge under the Supreme Court precedent protecting a woman’s right to choose. Passed in 2017, H.B. 214 regulates Texas insurance markets by prohibiting coverage for an elective abortion unless a woman affirmatively opts into such coverage through a separate contract and pays a separate premium. Similar restrictions on insurance coverage for elective abortion in other states have been met with mixed results in the courts. What sets H.B. 214 apart from other regulations of insurance coverage for abortion is that it does not include any exceptions for abortions in cases of …

Insurance Appraisal In Texas And Its Place In Coverage Litigation, Brendan K. Mcbride, William J. Chriss, Matthew R. Pearson

St. Mary's Law Journal

Insurance appraisal is a contractually agreed process for resolving a disagreement between the insurance carrier and the policyholder about the amount of a loss under an insurance policy. Appraisal clauses have been a feature of insurance policies in Texas for well over a century. Old Texas cases were uniform to the effect that appraisal was a method to establish the “amount” of the loss under circumstances where coverage was not in dispute, but a recent line of cases has allowed insurers to escape liability for breach of contract, attorneys’ fees, statutory and common law “bad faith,” and even liability under …

Assessment Of Medicaid Beneficiaries Included In Community Engagement Requirements In Kentucky, Atheendar Venkataramani, Elizabeth F. Bair, Erica Dixon, Kristin A. Linn, Will Ferrell, Margrethe Montgomery, Michelle K. Strollo, Kevin G. Volpp, Kristen Underhill

Faculty Scholarship

States are pursuing Section 1115 Medicaid demonstration waiver authority to apply community engagement (CE) requirements (eg, participation in work, volunteer activities, or training) to beneficiaries deemed able-bodied as a condition of coverage. Understanding the size and characteristics of the populations included in these requirements can help inform policy initiatives and anticipate effects.

Fulfilling States’ Duty To Evaluate Medicaid Waivers, Kristen Underhill, Atheendar Venkataramani, Kevin G. Volpp

Faculty Scholarship

Nearly 75 million U.S. residents have health insurance coverage through Medicaid. Benefits and program designs vary from state to state. One source of state-based variation is Section 1115 projects, which are defined as “experimental, pilot, or demonstration” programs that are “likely to assist in promoting the objectives” of the Medicaid statute. States seeking to implement experimental policies in their Medicaid programs must apply to the Centers for Medicare and Medicaid Services (CMS) for a Section 1115 waiver, which lifts certain federal regulations for 5 years. Thirty-seven states had active Section 1115 waivers as of October 31, 2018, and more than …

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, …

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. …

Future Harm As A Current Disability: Insurance Coverage For A Risk Of Substance Abuse Relapse Under Erisa, Jonah Kind

Northwestern University Law Review

No abstract provided.

Reframing Federalism — The Affordable Care Act (And Broccoli) In The Supreme Court, Wendy K. Mariner, George J. Annas, Leonard H. Glantz

Faculty Scholarship

The U.S. Supreme Court decision to uphold most of the Affordable Care Act (ACA), including the insurance-coverage requirement, allows historic reforms in the health care system to move forward. Because the justices were split four to four on whether the ACA was constitutional, Chief Justice John Roberts was able to write the lead opinion that commanded five votes for whatever outcome he determined was constitutional. The chief justice's leadership in upholding almost all of the ACA was unanticipated, as was much of his legal reasoning. It was widely assumed that the interpretation of the Commerce Clause by the Court would …

A New Precedent: Health Insurance Coverage For Surrogate Mothers In The State Of Missouri, Anna L. Molitor

Anna L. Molitor

Part I of this Note discusses the current state of traditional and gestational surrogacy in the United States, as well as the Missouri legislature’s silence on the issue. Part II analyzes the MercyCare Insurance Co. v. Wisconsin Commissioner of Insurance decision and the underlying policy considerations that led to the Wisconsin Supreme Court’s ruling. Part III addresses the important precedent MercyCare could set for other states, including Missouri. This Note concludes with the recommendation that Missouri follow Wisconsin’s lead and mandate insurance coverage for infertility treatments, including the use of gestational surrogacy.

Women And Children Last — The Predictable Effects Of Proposed Federal Funding Cuts, Wendy K. Mariner, George J. Annas

Faculty Scholarship

"Women and children last” might as well be the refrain of the current U.S. Congress's new health care budget cutters. We have seen similar efforts before. In the mid-1990s, managed care organizations tried to save money by limiting hospitalization benefits for new mothers and their infants to 24 hours after a vaginal delivery and 48 hours after a cesarean section. As with current Congressional proposals, financial savings were seen as more important than the health of women and children. Because only women get pregnant and give birth, restricting access to reproductive health care is discriminatory on its face and undermines …

A Concurrent Mess And A Call For Clarity In First-Party Property Insurance Coverage Analysis, Mark M. Bell

Mark M Bell

The attached article is the first article to clearly and plainly describe the history and genesis of concurrent causation as well as the development of anti-concurrent policy exclusions. After describing this unique history, the article argues that it is time to re-analyze concurrent causation questions and advocates for a categorical analysis for addressing “concurrent causation” questions.

Crisis On Campus: Student Access To Health Care, Bryan A. Liang

University of Michigan Journal of Law Reform

College-aged adults are an overrepresented group in the uninsured population of the United States, and traditionally underserved minorities are disproportionately affected. Students with private health insurance are often functionally uninsured as well, since most schools refuse to accept this traditionally elite calling card on campus. Consequently, the large uninsured and functionally uninsured populations often rely on school-sponsored health insurance plans for access to care. These plans have uneven coverage, limited benefits, exclusions and high co-pays and deductibles, and provide little health care security for their beneficiaries. Further, schools and insurance companies have profited substantially from these student plans, raising the …

An Analysis Of Horse Racing Jockeys Riding Under Kentucky's Workers' Compensation Laws, Ian C. B. Davis

Kentucky Law Journal

No abstract provided.

The Illinois Supreme Court Gives Policyholders A Break From The Two Front War, John S. Vishneski Iii

Northern Illinois University Law Review

For many years, Illinois policyholders faced the prospect of a two-front war whenever they submitted a liability insurance claim. Insurers who did not believe they owed coverage could "honor" their duty to defend by filing a lawsuit against their insureds seeking a declaration of non-coverage, thereby forcing their policyholders to defend against the underlying claim and against their own insurer. The Illinois Supreme Court, in the Midwest Sporting Goods case, has brought the two-front war era to an end. As explained in this article, insurers in doubt over coverage must now at least pay their policyholders' defense costs in the …

The Political Economy Of Unfairness In U.S. Health Policy, Jonathan Oberlander

Law and Contemporary Problems

Oberlander discusses the political economy of unfairness in US health policy by first highlighting the moral issues raised by the US's system of financing medical care and then by analyzing the political dynamics that sustain that system.

Insurance Binders Revisited, Peter N. Swisher

Law Faculty Publications

Temporary contracts of insurance-binders-protect the insured during the time between completion of the application and issuance of the policy. They are an accepted and necessary part of the insurance business, used in connection with a wide variety of insurance P7:oducts. But when alleged coverage under a binder is the subject of litigation, the results are often inconsistent and, sometimes, indefensible. This article provides a comprehensive discussion of binders, including the differences between standard form and manuscript binders, binding receipts in property and casualty insurance and conditional receipts in life insurance policies, the various kinds of conditional receipts, and otherwise. The …

Using Managed Care Tools In Traditional Medicare — Should We? Could We?, Robert A. Berenson, Dean M. Harris

Law and Contemporary Problems

Berenson and Harris consider whether the most controversial tools of managed care, including selective contracting, gatekeeping, and prior authorization, should be adopted in the Medicare program. On policy and practical political grounds, they do not recommend selective contracting or gatekeeping. Nevertheless, Medicare should be granted the authority to have preferred providers and case management programs that could treat providers differently and could permit certain beneficiaries to receive additional, off-policy benefits.

Timeless And Ahead Of Its Time: Lach's V. Fidelity & Casualty Of New York, Jeffrey W. Stempel

Scholarly Works

The publication of Judge Keeton's important article “inventing” the reasonable expectations doctrine in 1971 is notable for infusing a good deal of intellectual energy into the study of insurance law, particularly judicial decisions about insurance coverage. Keeton's article, which deduced from cases the principle that courts tended to interpret policies to vindicate the objectively reasonable expectations of the insured, has rightly been viewed as a milestone. It clarified an area of law long seen as inconsistent or result-oriented. It spurred additional important scholarship in the area and elevated insurance caselaw from something of a backwater to at least a respectable …

Insurance Kinds Of Insurance; Limits Of Risks; Reinsurance: Regulate Motor Vehicle Insurance, Coverage, And Proof Thereof, Change Certain Provisions Relating To Uninsured Motorist Coverage; Provide For Applicability And Exceptions; Change Certain Provisions Relating To Proof Of Insurance, Michael P. Johnson

Georgia State University Law Review

The Act requires that vehicle insurance policies be issued with a default amount of uninsured motorist coverage in amounts either equal to their personal coverage or with a minimum of $25,000 for injury or death of one person, $50,000 for injury or death of two or more persons, and $25,000 for property loss. The Act gives insured individuals the option of reducing their uninsured motorist coverage below the default minimum and omits language that allowed the insurer to reject non-written requests to increase coverage above the former statutory minimum. The Act also allows for the coverage agreed to when the …

Nova Law Review Full Issue Volume 24, Issue 1

Nova Law Review

No abstract provided.

A Mixed Bag For Chicken Little: Analyzing Year 2000 Claims And Insurance Coverage, Jeffrey W. Stempel

Scholarly Works

A visitor from another planet reading the popular and insurance trade press would probably conclude that the world stands on the abyss of a business, tort, and insurance crisis of unprecedented proportion. Media coverage of an impending Year 2000 “crisis” has reached a fevered pitch, with predictions of both a gigantic volume of Year 2000 claims and a correspondingly large amount of insurance coverage litigation. Many predict that the Year 2000 problem (also known as the “Y2K” or “Millennium Bug” problem) will create coverage controversies and costs dwarfing major insurance battles of the late twentieth century such as those concerning …

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

Scholarly Works

In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

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 …

Reason And Pollution: Construing The "Absolute" Pollution Exclusion In Context And In Light Of Its Purpose And Party Expectations, Jeffrey W. Stempel

Scholarly Works

Responding to the flurry of environmental coverage litigation over the application of the “sudden and accidental” pollution exclusion, the insurance industry during the mid-1980s largely adopted new standard pollution exclusion language for commercial general liability (CGL) policies. Since the mid-1980s, the standard form CGL has included the so-called absolute pollution exclusion, which provides that the insurance does not apply to bodily injury or property damage “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.” A “pollutant” is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, …

The Case For Expanded Illinois Insurance Producer Duties, Michael Schag

Northern Illinois University Law Review

In his article, the author argues that current industry practices and consumer expectations justify the expansion of the duties owed by insurance producers to their clients. Specifically, he proposes that courts should become more vigilant in holding producers accountable for failing to inquire broadly into the consumer's insurance needs and for failing to properly advise the consumer regarding pertinent coverage areas.

Interpreting Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

Scholarly Works

Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …

The Special Nature Of The Insurance Contract: A Few Suggestions For Further Study, Franklin M. Schultz

Articles by Maurer Faculty

No abstract provided.