Insurance Law Commons^™

Ensuring Insurance: Adequate And Appropriate Coverage For Brady Claims In Illinois, Joe Delich

Northwestern University Law Review

The increase in wrongful conviction litigation has engendered a number of new doctrinal problems. This Note examines the existing rules governing insurance coverage for wrongful-conviction-related torts, in particular, due process claims for Brady violations. It then explores the rationale for the continuous trigger doctrine in the asbestos context, and argues that wrongful conviction claims call for a similar approach due to comparable latency concerns. There is a particular focus on Illinois law due to the state’s prevalence of wrongful conviction litigation and recent shifts in the law governing insurance triggers for malicious prosecution.

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Spending Medicare’S Dollars Wisely: Taking Aim At Hospitals’ Cultures Of Overtreatment, Jessica Mantel

University of Michigan Journal of Law Reform

With Medicare’s rising costs threatening the country’s fiscal health, policymakers have focused their attention on a primary cause of Medicare’s high price tag—the overtreatment of patients. Guided by professional norms that demand they do “everything possible” for their patients, physicians frequently order additional diagnostic tests, perform more procedures, utilize costly technologies, and provide more inpatient care. Much of this care, however, does not improve Medicare patients’ health, but only increases Medicare spending. Reducing the overtreatment of patients requires aligning physicians’ interests with the government’s goal of spending Medicare’s dollars wisely. Toward that end, recent Medicare payment reforms establish a range …

Liability Insurer Data As A Window On Lawyers’ Professional Liability, Tom Baker, Rick Swedloff

UC Irvine Law Review

No abstract provided.

Sarls & Diversity Jurisdiction: Safeguarding 28 U.S.C. § 1332, Josh Ji

UC Irvine Law Review

No abstract provided.

The Regulation Of Insurance Claim Practices, Jay M. Feinman

UC Irvine Law Review

No abstract provided.

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue

UC Irvine Law Review

No abstract provided.

Systemic Risk Oversight And The Shifting Balance Of State And Federal Authority Over Insurance, Patricia A. Mccoy

UC Irvine Law Review

No abstract provided.

In Deep: Dilemmas Of Federal Flood Insurance Reform, Jennifer B. Wriggins

UC Irvine Law Review

No abstract provided.

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue

Articles

Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to discounting premium rates for insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law …

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, …

Rodney Dangerfield No More: The American Law Institute's Coming Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

Scholarly Works

In a casebook I co-author, "Principles of Insurance Law," with Peter Swisher and Erik Knutsen, we refer to insurance as "the Rodney Dangerfield of law." It just does not (to paraphrase the words of the late comedian), get enough respect. Lawyers are familiar with (and have been since perhaps the fourth week of law school), the American Law Institute's Restatements of the Law, particularly widely cited restatements, such as those governing torts and contracts (and, to a lesser extent, judgments, conflict of laws, restitution, suretyship and others). Despite the importance of insurance in the civil justice system, it has been …

Insurance, Bradley S. Wolff, Stephen Schatz, Maren R. Cave

Mercer Law Review

Courts continue to address the unique issues that arise with respect to uninsured motorist (UM) coverage, often finding that coverage exists. In a case of first impression, the Georgia Supreme Court held that an insured may recover UM benefits from a policy, despite the partial sovereign immunity of the tortfeasor. An insured may be entitled to UM benefits after settling with the tortfeasor's liability carrier for the full policy limits, even though a limited liability release allocates the majority of the settlement amount to punitive damages. Further, courts continue to strictly adhere to the "case or controversy" requirement in order …

Case Law Developments Addressing The Consequences Of A Liability Insurer’S Breach Of Its Duty To Defend, Michael A. Haskel

Pace Law Review

In pursuit of a greater understanding of this controversial subject, this article will: (1) explore the contract principles and public policy considerations that are implicated by an insurer’s breach of its defense duty; (2) consider recent case law addressing relevant issues; and (3) recommend a comprehensive approach that accommodates competing interests. Ultimately, the author concludes that in most circumstances an insurer that wrongfully disclaims its duty to defend should be precluded from raising defenses as to coverage in an action to indemnify the insured for monies paid out by the insured.

Panelist, Who Will Pay: The Public & Private Insurance Implications Of Climate Change's Drastic Challenges, Patricia Mccoy

Patricia A. McCoy

Death Of A Salesman: The Rise & Unfortunate Potential Demise Of The Full-Time Life Insurance Salesman, Robert M. Rosh

St. John's Law Review

(Excerpt)

This Article traces the economic and regulatory rise and potential future regulatory demise of the full-time life insurance salesman. It outlines why these salesmen and many of the products that they offer are beneficial to American society, and why public policies should promote both the profession and the products sold by full-time life insurance salesmen. Finally, it suggests some modest regulatory reforms that would promote life insurance sales and the salesmen who make them.

Adjusting The Benefits And Burdens Of Economic Life For The Public Good: The Aca's Medical Loss Ratio As A Constitutional Regulation Of Health Insurance Companies, Susanne Cordner

William & Mary Bill of Rights Journal

No abstract provided.

Case Comment: Smyth V. Szep Unsettling Settlements: Of Unconscionability And Other Things, David Vaver

David Vaver

The recent decision of the British Columbia Court of Appeal in Smyth v. Szep once again canvasses the validity of releases signed by injured victims in favour of insurance companies and once again plunges into the murky waters of contractual unconscionability. Both issues have become more or less permanent squatters on judicial calendars throughout North America, and it seems worthwhile to consider why this is so and whether something can be done to reduce their tenure at least in Canada.

Three Words And The Future Of The Affordable Care Act, Nicholas Bagley

Articles

As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort …

The Unintended Effects Of Government-Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue

Articles

Catastrophes from severe weather are perhaps the costliest accidents humanity faces. While we are still a long way from technologies that would abate the destructive force of storms, there is much we can do to reduce their effect. True, we cannot regulate the weather, but through smart governance and correct incentives we can influence human exposure to the risk of bad weather. We may not be able to control wind or storm surge, but we can prompt people to build sturdier homes with stronger roofs far from floodplains. We call these catastrophes "natural disasters," but they are the result of …

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

Timothy S. Jost

The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …

State Farm Mut. Auto. Ins. Co. V. Hansen, 131 Nev. Adv. Op. 74 (Sept. 24, 2015), Kristen Matteoni

Nevada Supreme Court Summaries

Under Nevada law, an insurer is required to provide independent counsel of the insured choosing when a conflict of interest arises between the insured and the insurer. A reservation of rights fails to create a per se conflict of interest. Instead, the courts must analyze on a case-by-case basis whether an actual conflict exists. Only if an actual conflict exists, must an insurer be obligated to provide the insured with independent counsel.

The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan Michael Purcell

The Journal of Business, Entrepreneurship & the Law

This Article introduces the taxpayer to the basic background principles needed to understand the inner workings of the investment, then provides a guide to drafting considerations for the family's attorney, and concludes with a general plan to maintain business legitimacy and take advantage of tax-favored status, while retaining the flexibility essential to combating the unexpected. Part II addresses the historically favored tax treatment of life insurance products, as well as relatively recent restrictive reforms. Part III addresses the background foundation of the LLC entity and surveys its skeletal structure. Part IV introduces a practical example of how to create an …

Catastrophic Risk And Governance After Hurricane Katrina: A Postscript To Terrorism Risk In A Post-9/11 Economy, Robert J. Rhee

Robert Rhee

This essay inquires into the political economy and system of governance that have made catastrophes more frequent and severe. The system of governance that is designed to mitigate risk and respond to catastrophes can be ineffective, or worse, increase the risk of harm through unintended consequences. Human influence must be considered a source of collateral risk, the kind that leads to a systemic crisis or exacerbates one. This essay concludes with some brief proposals, discussion topics more than completed ideas, which may facilitate further academic and political dialogue on effective governance and public risk management. They include a catastrophe tax, …

The Aca, Provider Mergers And Hospital Pricing: Experimenting With Smart, Lower-Cost Health Insurance Options, Susan A. Channick

Susan A. Channick

This paper addresses the issue of whether the recent significant uptick in provider mergers and the implementation of the Affordable Care Act have a particularly adverse effect on provider pricing in the commercial insurance market. Uncompetitive provider markets exacerbate already existing high cost issues such as lack of transparency in provider pricing, patient behavior that conflates reputation and quality, and payers’ inability, or at least reluctance, to exclude high-price providers from their networks. The ACA’s incentives for providers to coordinate patient care and hospitals’ revenue losses from reductions in Medicare reimbursement create further rationales for consolidation. The burden of finding …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher C. French

Villanova Law Review

No abstract provided.

The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen

West Virginia Law Review

No abstract provided.

Counteracting Fraud, Waste And Abuse In Drug Test Billing, Allison Walton

Economic Crime Forensics Capstones

Medicaid, Medicare, and major insurance companies are being faced with increased costs for drug test screening. These costs are not caused by a spike in the use of narcotics by subscribers, but from unnecessary testing and overbilling by doctors and drug screening companies. Recovering drug addicts are required to have random drug tests during their treatment program, but instead of being random, the drug tests have become prescriptive. Testing is performed at specific times weekly on a single patient, for substances that return results that are unimportant to the doctors. Doctors are given drug testing kits by large drug testing …

Legal Regime Of Marine Insurance In Arctic Shipping: Safety & Environmental Implications, Proshanto K. Mukherjee, Huiru Liu

ShipArc 2015 Conference

No abstract provided.

Arctic Shipping & Liability For Harm To Natural Resources, Dominik Walkowski

ShipArc 2015 Conference

No abstract provided.