Insurance Law Commons^™

Failure To Allocate? Nobody Pays: Using Miller Shugart Settlements In Cases Of Questionable Insurance Coverage, Jerome Abrams

Journal of Law and Practice

No abstract provided.

The Effects Of Tort Reform On Medical Malpractice Insurers’ Ultimate Losses, W. Kip Viscusi, Patricia Born, Tom Baker

Vanderbilt Law School Faculty Publications

Whereas the literature evaluating the effect of tort reforms has focused on the impact of reforms on insurers' reported incurred losses, this article examines the ultimate effects of reforms using the developed losses from a comprehensive sample of insurers writing medical malpractice insurance from 1984 to 2003. Noneconomic damages caps are particularly influential in reducing medical malpractice losses and increasing insurer profitability. The long-run effects of these reforms are greater than insurers' expected effects; for example, 5- and 7-year developed loss ratios are below the initially reported incurred loss ratios for those years following the enactment of noneconomic damages caps. …

The Court Of Appeals For The Fifth Circuit: A Review Of 2007-2008 Insurance Decisions, Willy E. Rice

Faculty Articles

The Fifth Circuit Court of Appeals decided a considerable number of insurance-related controversies between June 2007 and May 2008. Arguably, the most important, comprehensive decisions are discussed-nineteen insurance cases that originate in just five federal district courts. Generally, the Fifth Circuit decided familiar questions of law and fact. More specifically, the following types of procedural and substantive conflicts appear in the nineteen insurance decisions: (1) one case involving the constitutionality of a Texas insurance statute; (2) two federal preemption and removal controversies involving the Employee Retirement Income Security Act (“ERISA”); (3) two disagreements requiring the court of appeals to make …

A Single-License Approach To Regulating Insurance, Henry N. Butler, Larry E. Ribstein

Faculty Working Papers

State regulation of insurance companies has been criticized for many years because of the burden imposed on insurers by having to comply with the laws of many jurisdictions. These higher costs are passed on to consumers. The problems with the current regulatory structure are prompting calls for increased federal regulation of insurance. However, all proposals to federalize insurance regulation create opportunities for abuse at the hands of the federal government and fail to utilize the benefits of a federal system. This article shows how many of the problems of the current system can be addressed without resorting to a large …

A Gift Worth Dying For?: Debating The Volitional Nature Of Suicide In The Law Of Personal Property, Adam J. Macleod

Faculty Articles

Suicide poses difficult and foundational problems for the law. Those who most highly value personal autonomy, those who believe in the inviolability of human life, and those who remain uncommitted on end-of-life issues, all must settle challenging questions about suicide before advancing upon the more complex terrain of physician-assisted suicide, euthanasia, and infanticide. And the way in which a society fashions legal responses to suicidal choices reveals much about the society's cultural commitments and legal assumptions.

The bodies of insurance law, tort, and health care law are also among those areas of the law in which lawmakers reserve special exceptions …

Law Triangle: Arbitrating International Reinsurance Disputes, J. L. Murphy

Vanderbilt Journal of Transnational Law

The McCarran-Ferguson Act was enacted to preserve the longstanding prerogative of the States to regulate the insurance industry. States have acted in accordance with this statute to declare arbitration agreements in insurance contracts invalid. However, the Senate has since ratified the New York Convention and appended implementing legislation to the Federal Arbitration Act that obligates domestic courts to recognize arbitration agreements in all international contracts. In an odd convergence of authority, a functional conflict arises between these three bodies of law: the federal law says that state law controls in this area, even over other federal law that might incidentally …

Taxing Risk: An Approach To Variable Insurance Reform, Charlene Luke

UF Law Faculty Publications

Variable life insurance and annuity contracts are susceptible to being marketed and sold to taxpayers for whom such contracts are unsuitable and to being used in wraparound insurance shelters. As a method of addressing these problems, I propose current taxation for the risky returns on these contracts but continued deferral for a deemed, risk-free return amount. The increased transparency resulting from the forced separate tax accounting of contract components should improve consumers' ability to receive adequate suitability evaluations and may also lead to lower fees. Current taxation of risk-related returns removes an apparently key shelter incentive and should make it …

A Domestic Right Of Return?: Race, Rights, And Residency In New Orleans In The Aftermath Of Hurricane Katrina, Lolita Buckner Inniss

Publications

This article begins with a critical account of what occurred in the aftermath of Hurricane Katrina. This critique serves as the backdrop for a discussion of whether there are international laws or norms that give poor, black Katrina victims the right to return to and resettle in New Orleans. In framing this discussion, this article first briefly explores some of the housing deprivations suffered by Katrina survivors that have led to widespread displacement and dispossession. The article then discusses two of the chief barriers to the return of poor blacks to New Orleans: the broad perception of a race-crime nexus …

Causation Requirements In Tort And Insurance Law Practice: Demystifying Some Legal Causation Riddles, Peter N. Swisher

Law Faculty Publications

Legal causation requirements, in both tort and insurance law, rank among the most pervasive yet most elusive and most misunderstood of all legal concepts in Anglo-American law for legal practitioners, the courts,' and academic scholars alike. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than proximate cause issues, "despite the manifold attempts which have been made to clarify the subject."

Although some commentators have looked upon legal causation's …

The Insurable Interest Requirement For Life Insurance: A Critical Reassessment, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to critically reassess the insurable interest requirement in life insurance coverage disputes in light of the present needs of contemporary American society, including analysis of: (1) legal interpretations and underlying public policy rationales supporting such an insurable interest; (2) who is legally entitled to an insurable interest in the life of another; (3) when an insurable interest must exist; (4) when an insurable interest is-or should be-extinguished; (5) who may challenge the lack of an insurable interest; (6) whether an insurable interest in life insurance is subject to waiver or estoppel defenses; and (7) …

The Insurance Aspects Of Damages, Robert H. Jerry Ii, Douglas R. Richmond

UF Law Faculty Publications

"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way." So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …

State Farm Mutual Automobile Insurance Co. V. Campbell: Refining Bmw Of North America, Inc. V. Gore And Further Restricting Punitive Damages, Bridget E. Leonard

University of Richmond Law Review

No abstract provided.

The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

People seriously misjudge accident risks because they routinely neglect relevant information about exposure. Such risk judgments affect both personal and public policy decisions, e.g., choice of a transport mode, but also play a vital role in legal determinations, such as assessments of recklessness. Experimental evidence for a sample of 422 jury-eligible adults indicates that people incorporate information on the number of accidents, which is the numerator of the risk frequency calculation. However, they appear blind to information on exposure, such as the scale of a firm's operations, which is the risk frequency denominator. Hence, the actual observed accident frequency of …

Which Chance Was Lost?, Jonathan Koehler

Faculty Working Papers

The loss of chance doctrine in medical malpractice cases holds that when a doctor is responsible for reducing a patient's chance of survival by some percentage, the patient (or the patient's estate) should be compensated by the doctor for that percentage loss. Compensation is often determined by multiplying the value of a patient's life by the lost chance. This paper investigates psychological factors that my affect a legal decision maker's evaluation of damage awards in loss of chance cases. A paper and pencil experiment and a large-scale mock jury study (the latter using videotaped trials) are conducted to investigate the …

The Insurability Of Punitive Damages In Washington: Should Insureds Who Engage In Intentional Misconduct Reap The Benefit Of Their "Bargains?", Stephanie L. Grassia

Seattle University Law Review

This Note examines the issue of the insurability of punitive damages, concluding that insurance coverage should not be allowed for punitive damages arising from intentional misconduct because such coverage contravenes public policy in the state of Washington. Part I defines and provides background for punitive damages and malicious prosecution. Part II outlines and synthesizes the treatment of the insurability of punitive damages in various states. The facts of the Fluke case, including the Court of Appeals's rationale that insurance coverage for punitive damages is not against public policy in Washington, are detailed in Part III. The next section reveals the …

The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii

UF Law Faculty Publications

Whenever two or more market participants collaborate to restrain trade, the potential applicability of federal and state antitrust laws must be considered. When the collaborating parties are insurance companies, a further layer of analysis may be necessary to determine whether the activity is exempt from federal antitrust regulation. Even if the activity enjoys an exemption, state antitrust law may have different things to say about the activity. Embedded in each of these levels of analysis are many difficult and complex subsidiary questions. In short, the law of insurance antitrust is not a subject for the faint of heart.

Antitrust law …

May Harvey Rest In Peace: Lakin V. Postal Life And Casualty Company, Robert H. Jerry Ii

UF Law Faculty Publications

There is a case that has piqued my interest in recent years. Lakin v. Postal Life & Casualty Co., is a relatively simple story of two men whose paths crossed in Kansas City, Missouri, more than forty years ago. One was a down-in-the-luck drifter, and the other a con-artist who made his living by taking advantage of others. These two men would be long forgotten but for the fact that their final interactions during a hunting trip near Pleasant Hill, Missouri, raised some insurance law issues that ultimately made their way to the Missouri Supreme Court. Lakin stands for the …

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Scholarly Works

Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter N. Swisher

Law Faculty Publications

In all of Anglo-American law, there is no concept that has been as been so pervasive - and yet so elusive - as the causation requirement; and even today this causation requirement in American law has resisted all efforts to reduce it to a useful, understandable, and comprehensive formula regarding its underlying nature, content, scope, and significance. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of the law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than legal …

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 …

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

UF Law Faculty Publications

Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. The authors examine how the study of torts is enriched when insurance concepts play a role in students' analysis. The discussion is divided into two parts. Part I offers a "macro" perspective on the connections between tort and insurance, summarizing the principal issues in play when the purposes of tort law are analyzed against the backdrop of first-party and third-party insurance compensation mechanisms. Part II provides a "micro" perspective on tort-insurance connections, taking a sample of discrete tort law principles, representative of those discussed in a …

The Insurer's Right To Reimbursement Of Defense Costs, Robert H. Jerry Ii

UF Law Faculty Publications

This article examines the theoretical justification for the insurer's asserted right to reimbursement of defense costs incurred in defending noncovered claims. It sketches some details about the duty to defend which are necessary prerequisites to exploring any claim to a right of reimbursement. It discusses the rationale offered by most courts and commentators for recognizing the right to reimbursement: under the law of restitution, the insurer who defends a noncovered claim bestows a benefit on the policyholder which, in justice, ought to be returned. The article offers an alternative justification; it explains that the insurer's right should be analyzed in …

A Realistic Consensus Approach To The Insurance Law Doctrine Of Reasonable Expectations, Peter N. Swisher

Law Faculty Publications

This article's fundamental premise is that, over the past three decades, despite all the debate and confusion surrounding the underlying theory and practice of the insurance law doctrine of reasonable expectations, a modem consensus approach has finally emerged within the academic community and the courts and among insurance law practitioners involving a realistic and viable application of the doctrine to the needs of contemporaryground" synthesis of traditional, objective, and contractually based reasonable expectations principles grafted onto elements of the more modem Keeton formulation of the doctrine. Moreover, this realistic consensus approach to the doctrine of reasonable expectations is both theoretically …

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, …

Insurance, Contract, And The Doctrine Of Reasonable Expectations, Robert H. Jerry Ii

Faculty Publications

This article examines the connections between the doctrine of reasonable expectations and the law of contract. Judge Keeton urged in his 1970 article that protecting the insured's reasonable expectations is a better justification for results in many reported cases than the rationales offered by judges! Without disagreeing with that point, it can be claimed, as this article does, that insurance law's efforts to explain outcomes that contradict the plain language of contractual text are appropriately viewed as a subset of a larger effort to rationalize contract law with the challenges presented by the widespread use of standardized forms in consumer …

Holt V. Grange Mut. Cas. Co. Children Not "Insureds" Under Policy Are Entitled To Death, Barbara Tyler, Thomas S. Tyler

Law Faculty Articles and Essays

The recent Ohio Supreme Court decision of Holt v. Grange Mutual Casualty Co., is a consumer friendly decision and represents both an equitable and sound interpretation and application of Ohio law to consumer insurance contracts.The decision in Holt favors insurance consumers but has alarmed the insurance industry. The industry perceives the decision as bringing into question what language of an insurance policy will be upheld under the freedom of contract and what will be stricken as against public policy. First, the industry would argue that Holt seems to denigrate and abrogate the rights of an uninsurance/underinsurance provider to craft its …

Symposium Introduction, Peter N. Swisher

Law Faculty Publications

This Symposium addresses a number of the serious questions and issues involving the insurance law doctrine of reasonable expectations after three decades. We are fortunate to have ten excellent symposium articles analyzing the doctrine of reasonable expectations from various perspectives, written by seven academic lawyers, two prominent insurance law practitioners, and an eminent jurist.

Unreason In Action: A Case Study In The Wrong Approach To Construing The Liability Insurance Pollution Exclusion, Jeffrey W. Stempel

Scholarly Works

For more than twenty-five years, a significant component of the scholarly commentary on insurance law has focused on the so-called “reasonable expectations doctrine” enunciated by then-Professor (now Judge) Robert Keeton in his justly celebrated 1970 article. The reasonable expectations principle made a seemingly sudden emergence with the appearance of Keeton's article and has held particular attraction to academics while simultaneously prompting resistance from elements of the bench and bar, and particularly from the insurance industry. The doctrine's life to date can be described as one of early growth followed by subsequent retreat and dilution, with continuing controversy.

However, despite the …

Lovewell V. Physicians Insurance Co.: Personal Liability For Prejudgment Interest , Karin Mika

Cleveland State Law Review

This article discusses the Ohio Supreme Court's decision in Lovewell by walking through the case from trial court to the final Supreme Court decision. The case raises many issues regarding the future of litigation involving parties who refuse to settle pursuant to a contractual right. Although, on the surface, it would appear that the court clarified what entity would ultimately be responsible for paying a prejudgment interest award, its failure to address other issues left open the potential for future litigation concerning the traditional relationship between the insurer and the insured. While Lovewell does not necessarily mean the death knell …