Insurance Law Commons^™

Health Insurance And The Undocumented Immigrant, Anja Diercks

Honors Theses

The purpose of this thesis is to perform a comparative analysis on how seven different countries (USA, South Africa, Germany, England, Canada, France and Singapore) organize their healthcare system to cope with the issue of undocumented immigrants and whether or not these systems in place were “fair.” The thesis will also explore the possible ways the United States could change to be more inclusive and fairer in the world of healthcare and health insurance for the undocumented immigrant. A study on what fairness means both in ethical and economical terms is done to suggest a new basis of a fair …

Following The Money: The Aca’S Fiscal-Political Economy And Lessons For Future Health Care Reform, William M. Sage, Timothy M. Westmoreland

Faculty Scholarship

It is no exaggeration to say that American health policy is frequently subordinated to budgetary policies and procedures. The Affordable Care Act (ACA) was undeniably ambitious, reaching health care services and underlying health as well as health insurance. Yet fiscal politics determined the ACA’s design and guided its implementation, as well as sometimes assisting and sometimes constraining efforts to repeal or replace it. In particular, the ACA’s vulnerability to litigation has been the price its drafters paid in exchange for fiscal-political acceptability. Future health care reformers should consider whether the nation is well served by perpetuating such an artificial relationship …

Insurance, Maren R. Cave, Thomas D. Martin, Bradley S. Wolff

Mercer Law Review

During this Survey period, the courts in Georgia returned to the usual abundance of automobile and uninsured motorist (UM) cases, the summaries of which make up most of this annual update. The courts decided three cases involving UM coverage limits that were less than the policies’ liability limits and the claims of insureds that the carriers owed coverage equal to the liability limits. The insurers prevailed in all three cases. In a fourth case, the Georgia Court of Appeals determined that an insured could not sue a tortfeasor in the name of “John Doe,” where the person’s name was known …

Evidence Supporting The Value Of Surgical Procedures: Can We Do Better?, Jonathan J. Darrow, Christopher Robertson, Willard S. Kasoff

Faculty Scholarship

There is an acknowledged need for higher-quality evidence to quantify the benefit of surgical procedures, yet not enough has been done to improve the evidence base. This lack of evidence can prevent fully informed decision-making, lead to unnecessary or even harmful treatment, and contribute to wasteful expenditures of scare health care resources. Barriers to evidence generation include not only the long-recognized technical difficulties and ethical challenges of conducting randomized surgical trials, but also legal challenges that limit incentives to conduct surgical research as well as market-based challenges that make it difficult for those funding surgical research to recoup investment costs. …

“Waiving” Goodbye To Medicaid As We Know It: Modern State Attempts To Transform Medicaid Programs Through Section 1115 Waivers, Chandler Gray

Washington and Lee Law Review Online

This Note explores recent state efforts to reshape their respective Medicaid programs through Section 1115 waivers. Specifically, this Note looks at states that wish to convert their Medicaid program to a block grant through Section 1115 waivers. Examining the lawfulness of these waivers requires analyzing the language and application of both the Medicaid Act and the Administrative Procedure Act. This Note argues that any use of Section 1115 waivers to implement a block grant program would be a violation of the Medicaid Act and thus unlawful. Further, federal approval of such programs would be deemed arbitrary and capricious. To justify …

Managing The New Political Risks: Populism, Democratic Instability, And The Rise Of Political Risk Insurance In Developed Democracies, James R. Brakebill

Connecticut Insurance Law Journal

Developed democracies in the West are facing a surge of political

risk. Democratic institutions are showing their weaknesses as polarization,

populism, and trade conflicts sweep across the developed world. Firms and

investors with multinational interests have been turning to political risk

insurance to mitigate potential losses due to adverse government action.

Once limited to emerging markets to insure against risks such as civil war

or expropriation, political risk insurance is increasingly being purchased to

protect assets from emerging risks in developed economies. While private

insurers have been able to respond to the increase in demand for coverage,

they are not …

The American Law Institute's Restatement Of The Law, Liability Insurance: Scholarship And Controversy, Lorelie S. Masters, Geoffrey B. Fehling

Connecticut Insurance Law Journal

No abstract provided.

Homeowner's Insurance And Credit Score: A Critical Race Theory Perspective, Robert K. Yass

Connecticut Insurance Law Journal

No abstract provided.

Notpetya, Not Warfare: Rethinking The Insurance War Exclusion In The Context Of International Cyberattacks, Katherine S. Wan

Washington Law Review

When an insurer wants to avoid coverage of a specific type of loss, it must explicitly exclude the loss in its policy. The war exclusion is a typical exclusion found in insurance policies that excuses insurers from covering losses caused by war or warlike actions. Courts interpreting the exclusion have traditionally held that war must consist of hostilities between sovereign nations. Despite the rise of state-sponsored cyberattacks, the United States has been hesitant to officially declare war in response. Even still, insurers argue that their war exclusions should apply to these new cyber losses. Courts are now tasked with reanalyzing …

Underwriting Criteria, Practices, And Tools Of Pet Health Insurance Companies, Kimberly L. Wilson

Connecticut Insurance Law Journal

This article examines the underwriting criteria, practices, and tools of pet insurance companies. While companies that sell pet insurance policies are generally transparent about who their underwriting company is, underwriting rules are not as readily available and require consumers to navigate the System for Electronic Rates and Forms Filing (SERFF) online interface. Because pet "health" insurance is actually a form of property and casualty insurance, the underwriters are, as expected, typically property and casualty companies. This paper explores the current pet health insurance landscape and how pet insurance underwriters incorporate quasi-medical underwriting into their pet insurance policies.

What Is A Protection Gap? Homeowners Insurance As A Case Study, Jay M. Feinman

Connecticut Insurance Law Journal

No abstract provided.

Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel

Connecticut Insurance Law Journal

The COVID-19 pandemic created not only a public health crisis but also an

insurance coverage imbroglio, prompting near-immediate business interruption claims by policyholders impacted by government restrictions ordered in response to the pandemic. Insurers and their representatives "presponded" to the looming coverage claims by quickly moving to denigrate arguments for coverage, engaging in a pre-emptive strike that has largely worked to date, inducing too many courts to rush to judgment by declaring-as a matter of law-that policy terms such as "direct physical loss or damage" do not even arguably encompass the business shutdowns

resulting from COVID-19. Our closer examination of …

Racist Robots And The Lack Of Legal Remedies In The Use Of Artificial Intelligence In Healthcare, Tyler Dueno

Connecticut Insurance Law Journal

This article examines the rapidly accelerating use of powerful artificial intelligence to make healthcare decisions. Artificial intelligence promises many benefits: affordable and accessible healthcare; diagnostic accuracy; and efficiently streamlining tasks related to prior authorization procedures. However, the perils involve proxy discrimination-an insidious form of a disparate impact claim-involving biases inadvertently coded into an algorithm disproportionately harming members ofa protected class. As most Americans have employer-provided health insurance governed by the Employee Retirement Income Security Act of 1974 (ERISA), this paper argues there are no adequate legal remedies for consumers injured by proxy discrimination. The history of health insurance explains why …

Socialized Tenets In The United States: Thought Reflections On Healthcare As A Collective Good That U.S. Society Desires, Alina Veneziano

Cardozo Journal of Equal Rights & Social Justice

This study traces the history of the United States in socializing certain collective goods for society as a means of possibly satisfying deeper needs. To accomplish this, American psychologist Abraham Maslow's seminal theory on human motivation is analogized to societal needs. Society wants to be protected by government and, little by little, the United States has responded to the needs of its society by socializing certain goods. The United States has satisfied the following needs for society: the physiological needs, the safety needs, the love needs, and the esteem needs. It has yet to satisfy the highest level of societal …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Private Insurance Limits And Responses, Elizabeth Weeks

Scholarly Works

The COVID-19 pandemic exposed a number of existing flaws in the United States’ patchwork approach to paying for and providing access to medical care. Shelter-in-place orders, social distancing, and other public health strategies employed to address the pandemic spawned a global recession, causing rapid and high unemployment rates in many countries. The U.S. unemployment rate peaked in April 2020 at 14.7%, higher than in any previous period since World War II. The United States has long hewed an anachronistic policy of relying heavily on private employers to provide health insurance to a substantial portion of the population. Those who are …

Which Law Is Supreme? The Interplay Between The New York Convention And The Mccarran-Ferguson Act, Brian A. Briz, César Mejía-Dueñas

University of Miami Law Review

The McCarran-Ferguson Act was enacted in 1945 to safeguard the rights of the states to regulate the business of insurance. It provides that acts of Congress not specifically related to the business of insurance are superseded by state laws that regulate the business of insurance. In 1970, the United States ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Congress enacted Chapter 2 of the Federal Arbitration Act to implement the New York Convention. The New York Convention requires courts to recognize and enforce both private agreements to arbitrate and arbitration awards made …

Saving Small Business From The Big Impact Of Data Breach: A Tiered Federal Approach To Data Protection Law, Nadia Udeshi

Brooklyn Journal of Corporate, Financial & Commercial Law

Small businesses provide a significant positive impact on the American economy. However, the current fragmented federal and state data protection and breach notification legal scheme puts the viability of small businesses at risk. While the probability of data breaches occurring continues to increase, small businesses lack the financial and technological resources to contend with the various state and federal laws that impose different monetary penalties and remedial requirements in the event of such breaches. To preserve the viability of small businesses, Congress should enact a centralized, multi-tiered federal data protection and breach notification framework that preempts state laws, imposes minimum …

Reflections On Covid-19, Insurance, Business Interruption, Systemic Risk, And The Future, Robert H. Jerry Ii

Faculty Publications

The COVID-19 pandemic is a major loss event for the insurance industry. This chapter begins with an overview of the pandemic’s most significant insurance implications. Because business interruption has been the most prominently discussed of these impacts, the second part of this chapter takes a closer look at business interruption insurance. This part describes how markets for this coverage are structured in the U.S., and then undertakes a detailed analysis of one of the most common business interruption policy forms, demonstrating that some aspects of this form, insofar as pandemic-caused business interruption is concerned, were not drafted with utmost precision. …

Discrimination And Privacy Concerns At The Intersection Of Healthcare And Big Data, James Koenderman

Cardozo Law Review

No abstract provided.

Investigating Healthcare Fraud: Its Scope, Applicable Laws, And Regulations, Nicole Forbes Stowell, Carl Pacini, Nathan Wadlinger, Jaqueline M. Crain, Martina Schmidt

William & Mary Business Law Review

Healthcare costs are not only an enormous strain on the U.S. economy but are expected to increase in the foreseeable future. Not surprisingly, clever fraudsters view the healthcare industry as a lucrative and attractive hotspot for illegal activity. Although federal and state governments have increased their funding and prosecution efforts relating to healthcare fraud, this fraud continues to be a major threat to the U.S. economy and every patient and consumer. The impact of healthcare fraud is substantial and far-reaching. Healthcare fraud in the U.S. affects not only the government, but also insurance companies, patients, healthcare providers, and consumers. This …

States Should Quickly Reform Unemployment Insurance, Brian Galle, David Gamage, Erin Scharff, Darien Shanske

Articles by Maurer Faculty

COVID-19 is causing mass layoffs and related economic hardship, as well as budget crises for state and local governments. This article is part of Project SAFE (State Action in Fiscal Emergencies), an academic effort to help states weather the fiscal crisis by providing policy recommendations backed by research. This article will focus on how state governments should reform unemployment insurance (UI) eligibility and benefits and the taxes funding these programs.

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman

William & Mary Law Review

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district …

Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin

Maine Law Review

In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …

Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin

Maine Law Review

In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

Telemedicine And Malpractice: Creating Uniformity At The National Level, Tyler D. Wolf

William & Mary Law Review

Picture this: an elderly gentleman living alone, isolated in a rural, midwestern locale. One day, this elderly gentleman awakes to find a distinct rash forming on his chest. The nearest doctor capable of performing an examination is located over a hundred miles away, and this man has not driven more than ten miles in twenty years. Shambling into his living room, the elderly man logs onto his computer and begins typing. Within twenty minutes he is videoconferencing with a doctor who examines the rash remotely and makes a diagnosis.

Through advances in telemedicine, the scenario described above is becoming an …

Reducing Medical Malpractice Loss Reserve Volatility Through Tort Reform, W. Kip Viscusi, Patricia H. Born, Evan M. Eastman

Vanderbilt Law School Faculty Publications

This study examines how tort reform affects uncertainty in insurance markets by testing whether noneconomic damage caps influence reserving volatility for medical malpractice insurers. Using a panel of insurers from 1986 to 2009, we estimate the determinants of loss reserve error volatility and focus on how this volatility is influenced by the percent of premiums an insurer writes that are subject to noneconomic damage caps. We find empirical evidence that tort reform reduces reserve volatility over the subsequent 3- and 5-year periods, consistent with tort reform improving insurers’ loss forecasting ability. Our findings address outcomes of tort reform that are …

Ensuring An Underclass: Stigma In Insurance, Valerie K. Blake

Cardozo Law Review

In our country, access to insurance can be a matter of life and death, as well as financial security. Despite these great stakes, the cost and quality of insurance are often influenced by social factors like sexual orientation, age, gender, and race. Such discrimination, forbidden in other settings like employment, is forgiven in insurance, even seen as fairer, on the grounds of actuarial fairness. That is, insurance classifications are lawful so long as they are based on evidence that some groups are costlier to insure, with the understanding that others shouldn't have to offset those expenses. This Article challenges this …