Insurance Law Commons^™

Patient Decision Aids Improve Patient Safety And Reduce Medical Liability Risk, Thaddeus Pope

Faculty Scholarship

Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions …

Federal Courts’ Recalcitrance In Refusing To Certify State Law Covid-19 Business Interruption Insurance Issues, Christopher French

Faculty Scholarship

Over 2,000 COVID-19 business interruption insurance cases have been filed in state and federal courts the past two years with most of the cases filed in or removed to federal courts. The cases are governed by state law. Rather than certify the novel state law issues presented in the cases to the respective state supreme courts that ultimately will determine the law applicable in the cases, each of the eight federal circuit courts to issue decisions on the merits in such cases to date has done so by making an Erie guess regarding how the controlling state supreme courts would …

Debunking The Standardized Nature Of Insurance Policies, Elizabeth Sousa

Fordham Journal of Corporate & Financial Law

This article discredits the conventional view of insurance policies as standardized contracts that do not vary across insurance companies and policyholders. Contrary to this view, there are wide variations in policy language in both the admitted and non-admitted insurance markets. These deviations reduce the perceived benefit of insurance policies as standardized contracts intended to promote predictability and lower transaction costs for policyholders by focusing only on the most salient terms. Nowhere is this deviation more apparent than with Commercial General Liability (CGL) policies defendants are turning to in the current opioid litigation.

The opioid epidemic has been plaguing the United …

The Enforceability Of Step-Down Provisions In Automobile Insurance Policies, Constance A. Anastopoulo, Thomas P. Gressette Jr.

Mitchell Hamline Law Review

No abstract provided.

The Promise And Peril Of Paternalistic Approaches To Flood Risk, Alexander B. Lemann

University of Colorado Law Review

Our country's ever-growing exposure to flood risk has been the target of policy reform for decades. To many experts, it is clear that we must stop subsidizing flood-prone development and begin the process of moving people away from flood-prone areas. And yet, despite the seemingly obvious benefits of abandoning areas that will be permanently underwater in a generation, flood-prone living has been a difficult habit to kick.

Examining the problem against the background of the philosophical literature on paternalism helps show why. Paternalism- government intervention in people's choices for the good of those same people-has long been controversial. The insistence …

Insuring Fortuity—And Intent: A Comment On Professor French's Insuring Intentional Torts, Erik S. Knutsen, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The 2022 New Jersey Insurance Fair Conduct Act And The Incomplete Evolution Of Policyholder Protection, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Litigation Landscape Of Fraternity And Sorority Hazing: Defenses, Evidence, And Damages, Gregory S. Parks, Elizabeth Grindell

Washington and Lee Law Review

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

2021 Rhode Island Public Laws, Madison C. Picard

Roger Williams University Law Review

No abstract provided.

Don't Bet The Farm In Litigation Before Considering Mediation: The Case For Agriculture Mediation Program Implementation, John Schmitz

Cardozo Journal of Conflict Resolution

The American farmer wears several hats throughout each day. Each is a farmer, mechanic, businessperson, chemist, accountant, and economist. An ill-timed dispute resulting in litigation can cause farmers to miss planting or harvesting, lose property, or be denied credit. Agriculture mediation provides a unique opportunity for disputes-both big and small, and centered around agriculture-to be resolved in a timely manner.

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Articles

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement …

Insuring Intentional Torts, Christopher French

Faculty Scholarship

This Article analyzes the competing public policies and arguments in favor of and against allowing insurance to cover intentional torts. In doing so, it discusses numerous lines of liability insurance that expressly cover various types of intentional torts. It then explores whether the theoretical foundation underlying the public policy against allowing liability insurance to cover intentional torts—that intentional misconduct is effectively deterred and punished by disallowing coverage—is supported by empirical evidence.

Why Insurance Needs A Restatement: The Case Of Settlement Decision Law, Chaim Saiman

Faculty Publications

Even before its publication, the Restatement of the Law, Liability Insurance had been subjected to withering wholesale criticism that it creates aspirational and pro-policyholder insurance law. This view continues to be forcefully promoted by insurers and their advocates in the legal literature and by governors and state legislatures in the political areas.

This Article finds these wholesale criticisms unwarranted. Liability insurance law is not a field where law is simply found and restated. In fact, settlement law offers the most vivid examples of why the Restatement of the Law, Liability Insurance is possible, useful, and justified. It is possible because …

A Deeper Dive Into Nautilus: Differentiating Insurer Efforts To Recover Defense Costs And Assessing Recoupment In The Wake Of The Ali Restatement, Jeffrey W. Stempel

Scholarly Works

Insurers and Policyholder have for decades contested whether the typical general liability policy requires policyholders to reimburse insurers for defense costs where a claim is ultimately held not to be one for which a defense is required. Although a slight majority of decisions favors insurers, the recent trend has favored policyholders, as reflected in §21 of the American Law Institute Restatement of the Law, Liability Insurance (“RLLI”), one of several contested portions of the RLLI. In Nautilus Insurance v. Access Medical, the Nevada Supreme Court provided the most extensive post-RLLI analysis of the dispute, ruling in favor of the …