Insurance 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.

Employment Practices Liability Insurance: Are Epli Policies A License To Discriminate - Or Are They A Necessary Reality Check For Employers, Nancy H. Van Der Veer

Connecticut Insurance Law Journal

No abstract provided.

Resolving Medical Malpractice Claims In The Medicare Program: Can It Be Done, Eleanor D. Kinney, William M. Sage

Connecticut Insurance Law Journal

No abstract provided.

Are The Regulatory Frameworks In Asian Emerging Markets Equipped To Handle The Influx Of Foreign Insurers, Shanil R. Vitarana

Connecticut Insurance Law Journal

No abstract provided.

The Enterprise Model Of Managing Conflicts Of Interest In The Tripartite Insurance Defense Relationship, Aviva Abramovsky

Cardozo Law Review

No abstract provided.

Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker

Connecticut Insurance Law Journal

No abstract provided.

Marine Title Insurance: The Dernier Cri In Title Insurance, Matthew J. Bauer

Connecticut Insurance Law Journal

No abstract provided.

Employer By Name, Insurer By Trade: Society's Obesity Epidemic And Its Effects On Employers' Healthcare Costs, Karthryn Hinton

Connecticut Insurance Law Journal

No abstract provided.

Diminished Value In Automobile Insurance: The Controversy And Its Lessons, Thomas O. Farrish

Connecticut Insurance Law Journal

No abstract provided.

From The Journals: Insurance Law Abstracts, Emmanuelle Regine Francois

Connecticut Insurance Law Journal

No abstract provided.

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 …

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 …

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 …

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 …

Law, Politics, And The Political Safeguards Of Federalism: The Case Of Insurance Regulation And The Commerce Clause, 1938-1948, Katherine M. Jones

Connecticut Insurance Law Journal

No abstract provided.

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth A. Pendo

Connecticut Insurance Law Journal

No abstract provided.

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.

The Medicare Prescription Drug, Improvement, And Modernization Act Of 2003: The Wrong Prescription For Our Nation's Senior Citizens, Karen M. Wieghaus

Connecticut Insurance Law Journal

No abstract provided.

Mandatory Arbitration In Insurance Disputes: Inverse Preemption Of The Federal Arbitration Act, Susan Randall

Connecticut Insurance Law Journal

No abstract provided.

Keeping The Promise: Will The Bush Administration's Plan To Privatize The Social Security System Actually Work, James E. Hennessey

Connecticut Insurance Law Journal

No abstract provided.

Insuring Against The Snail-Darter: Insurance For Land Use And The Endangered Species Act, Jonathan F. Tross

Connecticut Insurance Law Journal

No abstract provided.

From The Journals: Insurance Law Abstracts, Matthew Fitzsimmons

Connecticut Insurance Law Journal

No abstract provided.

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 …

Reasonableness For Free: Why Buy Employment Practices Liability Insurance When Eeoc.Gov Gives Protection Away?, Glenn Kramer

Cardozo Public Law, Policy & Ethics Journal

The note argues that employers can effectively mitigate employment litigation risks by adhering to EEOC guidance and implementing anti-discrimination policies, reducing the need for Employment Practices Liability Insurance (EPLI). It emphasizes that the EEOC's free resources, including its Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, provide clear standards and protections for employers, particularly smaller businesses, to avoid liability in harassment and discrimination cases. By following these guidelines, employers can demonstrate "reasonable care" and create a "safe harbor" against litigation, as supported by landmark Supreme Court rulings such as Faragher v. City of Boca Raton and …

Expert Testimony On Sexually Abused Child Syndrome In A Child Protective Proceeding: More Hurtful Than Helpful, Mary Ellen Reilly

Cardozo Public Law, Policy & Ethics Journal

The note argues that Sexually Abused Child Syndrome (SACS) testimony is unreliable and should not be admitted as corroborating evidence in child protective proceedings. It contends that SACS lacks scientific validity, is not recognized as a medical diagnosis, and fails to meet evidentiary standards for reliability. The author asserts that allowing SACS testimony violates due process rights and risks wrongful outcomes, advocating for stricter standards for expert testimony and alternative methods of substantiating abuse allegations.