Insurance Law Commons^™

Assessing The Insurance Role Of Tort Liability After Calabresi, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

What Do We Talk About When We Talk About Control, Anthony J. Sebok

Articles

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains. This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

The New Flat Tax: A Modest Proposal For A Constitutionally Apportioned Wealth Tax, John Plecnik

Law Faculty Articles and Essays

This Article is the first to propose a solution that complies with the Apportionment Clause without imposing different rates in different states. This Article discusses the practical and administrative issues with implementing a wealth tax in the United States as well as the substantive fairness of such a tax relative to the income and consumption tax regimes. This article describes the Apportionment Clause, so-called direct taxes, and the constitutional issues with implementing a wealth tax. It also describes prior proposals to circumvent the Apportionment Clause for the sake of a wealth tax. It also outlines a modest proposal to pass …

Summary Of Wingco V. Gov’T Emps. Ins. Co., 130 Nev. Adv. Op. 20, Michael Paretti, Craig Friedel

Nevada Supreme Court Summaries

The Court determined whether NRS 687B.145(3), which provides that a motor vehicle insurer must offer its insured the option of purchasing medical payment coverage, requires written rejection of medical coverage by the insured to be valid.

Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper

Seattle University Law Review

This Article considers the historical basis for the shift from defined benefit plans to defined contribution plans, the structural and practical shortcomings of defined contribution plans, alternate pension models, and adjustments to existing retirement plan models that may offer a degree of protection to plan contributors. Like the United States, Australia is now realizing the limitations of a defined contribution retirement system insofar as it relates the provision of reliable retirement income for a population with increasing life expectancy. Unlike defined contribution plans, defined benefit plans provide a benefit based typically on time served and a predetermined proportion of either …

The Analysis Of The Hcs Department's Injury And Illness Prevention Program, Matthew Evers

BioResource and Agricultural Engineering

The Horticulture and Crop Science department had created their own Injury and Illness Prevention Program (IIPP) which was placed online using Cal Poly’s “PolyLearn” module. The program had just been created and generally covered some of the basic IIPP elements required by CalOSHA law, however it had various points of improvement to fulfill all IIPP regulations. It was found that the program content was not in compliance with CalOSHA laws regarding hazard inspection, training, and record keeping, but through meetings with the various department staff, these areas were brought into compliance with CalOSHA requirements, or are expected to be …

Insurance At The Energy-Water Nexus, Donald T. Hornstein

University of Richmond Law Review

No abstract provided.

Litigation Investment And Legal Ethics: What Are The Real Issues?, Anthony J. Sebok

Articles

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer's exercise of independent professional judgment on behalf of the client. The strongest objections to litigation investment by third parties is that it may compromise a lawyer's independence. This article examines this objection in the context of a recent report from the Ethics Committee of the Commercial and Federal Litigation Section of the New York State Bar Association and argues that it misses the real legal …

The Affordable Care Act, Remedy, And Litigation Reform, Brendan S. Maher

Faculty Scholarship

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Comparative Effectiveness Research As Choice Architecture: The Behavioral Law And Economics Solution To The Health Care Cost Crisis, Russell Korobkin

Michigan Law Review

With the Patient Protection and Affordable Care Act (“ACA”) set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. “Consumer directed health care” proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed. This Article proposes a government-facilitated …

Chapter 389: Closing The App Gap With Insurance Requirements For Transportation Network Companies, Amanda Kelly

McGeorge Law Review

No abstract provided.

Cyber-Security Insurance: Navigating The Landscape Of A Growing Field, 31 J. Marshall J. Info. Tech. & Privacy L. 379 (2014), Daniel Garrie, Michael Mann

UIC John Marshall Journal of Information Technology & Privacy Law

In today‟s marketplace where businesses are constantly being threatened by data breaches and cyber-attacks, it is imperative that a global company obtain cyber-security insurance. The cyber-security insurance market is now the fastest growing segment of the insurance industry as cyber-threats are on the rise and business trade partners and consumers are insisting on safeguards for their confidential and sensitive information. Given how great the potential liability and damages resulting from a data breach can be companies cannot afford to be without cyber-security insurance. As this new form of insurance continues to emerge and develop, it is important for companies to …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Connecticut Insurance Law Journal

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

Minding The Gap: Seeking Autism Coverage In Class Actions When State And Federal Laws Fail, Danielle M. Jaffee

Connecticut Insurance Law Journal

This Note examines the recent trend towards class actions to challenge insurers’ denial of autism treatment coverage. The author examines how state and federal laws regarding insurance coverage of autism treatment creates a gap allowing insurers to deny coverage, even in spite of the overwhelming proof of the beneficial nature of autism treatment for autistic individuals. Past individual challenges of insurers’ actions gave little guidance to consumers about the legal obligations of insurers for autism treatment and recent collective action has done little to provide more. The author examines the decisions of three courts determining the certification of class challenges …

Overlooked And Underused: Clinical Practice Guidelines And Malpractice Liability For Independent Physicians, Ronen Avraham

Connecticut Insurance Law Journal

This paper discusses how the use of Clinical Practice Guidelines (CPGs) can improve the quality and delivery of healthcare in America. The author states that with the passage of the Patient Protection and Affordable Care Act of 2010 the American healthcare system is in need of re-alignment, specifically challenging the established norms for promulgating CPGs. The article explores the legal evolution of CPGs and new legal avenues for their promulgation by examining their history and purpose. The author concludes by identifying three accountability models and arguing in favor of a private competitive regime for CPGs.

At The Intersection Of Insurance And Tax: Equitable Remedies Under The Affordable Care Act, 47 J. Marshall L. Rev. 973 (2014), Julie Lewis

UIC Law Review

No abstract provided.

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

Faculty Articles

Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

Liability Insurance And Gun Violence, Peter Kochenburger

Faculty Articles and Papers

No abstract provided.

Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher

Faculty Articles and Papers

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Risk Classification’S Big Data (R)Evolution, Rick Swedloff

Connecticut Insurance Law Journal

Insurers can no longer ignore the promise that the algorithms driving big data will offer greater predictive accuracy than traditional statistical analysis alone. Big data represents a natural evolutionary advancement of insurers trying to price their products to increase their profits, mitigate additional moral hazard, and better combat adverse selection. But these big data promises are not free. Using big data could lead to inefficient social and private investments, undermine important risk-spreading goals of insurance, and invade policyholder privacy. These dangers are present in any change to risk classification. Using algorithms to classify risk by parsing new and complex data …

An Affordable Care Act For Retirement Plans?, Amy B. Monahan

Connecticut Insurance Law Journal

In the United States, the availability of tax subsidies for retirement savings is largely based on an individual’s employment status and whether such individual’s employer has voluntarily chosen to offer a tax-favored savings vehicle. Even where an individual has access to an employer-sponsored retirement plan, such plans are too often suboptimally designed. This article proposes an incremental reform that ensures universal access to tax-favored retirement savings irrespective of employment status or employer decisions. Borrowing from the model of the Affordable Care Act, the article calls for the creation of an optional, universally available retirement plan, which would be designed according …

California Dreaming: The California Secure Choice Retirement Savings Trust Act, Edward A. Zelinsky

Connecticut Insurance Law Journal

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual …

Big Data And Insurance Symposium, George Jepsen

Connecticut Insurance Law Journal

This Article reproduces the keynote address delivered by Connecticut Attorney General George Jepsen at the University of Connecticut School of Law’s Spring 2014 Big Data and Insurance Symposium. In his address, Attorney General Jepsen describes the opportunities and challenges associated with the use of big data technologies. He stresses the need to consider personal privacy concerns at every step of the data collection and analysis processes. Moreover, he argues that self-policing is not enough and that it is vital for the government to play a role in defining and enforcing individual privacy protections. Attorney General Jepsen concludes by calling for …

Payment Protection Insurance (Ppi) Misselling: Some Lessons From The Uk, Andromachi Georgosouli

Connecticut Insurance Law Journal

The misselling of Payment Protection Insurance (“PPI”) is a longstanding problem in the UK. The Treating Customers Fairly (“TCF”) initiative was introduced to tackle this problem but, despite its sophisticated inception, its effectiveness has been limited. This Article canvasses the main features of TCF as a management-based approach to regulation and highlights its initial appeal. Against this backdrop, it draws on the recent UK experience with recurring instances of PPI misselling to offer an account of the principal causes of its shortcomings in the retail financial sector. It argues that the perceived failure of this regulatory approach may be attributed …

Information & Equilibrium In Insurance Markets With Big Data, Peter Siegelman

Connecticut Insurance Law Journal

Asymmetric information makes the behavior of insurance markets very difficult to predict. But this Article argues that the increasing use of Big Data by insurers will not result in forecasts of loss that are so accurate that they eliminate uncertainty, and with it, the possibility of insurance. Big Data techniques might lead to a “flip” in informational asymmetry, resulting in a situation in which insurers know more about their customers than the latter know about themselves. But the effects of such a development could actually be benign. Finally, the Article considers the potential for Big (or at least, More) Data …

Understanding Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

Health Law As Social Justice, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and …

Regulating Systemic Risk In Insurance, Daniel Schwarcz, Steven L. Schwarcz

Faculty Scholarship

As exemplified by the dramatic failure of AIG, insurance companies and their affiliates played a central role in the 2008 global financial crisis. It is therefore not surprising that the Dodd-Frank Act—the United States’ primary legislative re-sponse to the crisis—contained an entire title dedicated to insurance regulation, which has traditionally been the responsibility of individual states. The most important insurance-focused reforms in Dodd-Frank empower the Federal Reserve Bank to impose an additional layer of regulatory scrutiny on top of state insurance regulation for a small number of “systemically important” nonbank financial companies, such as AIG. This Article argues, however, that …

The Social Costs Of Choice, Free Market Ideology And The Empirical Consequences Of The 401(K) Plan Large Menu Defense, Mercer Bullard

Connecticut Insurance Law Journal

This article explores the recent “hidden-fee” litigation trend that has consumed the 401(k) world and how recent decisions by these courts will likely result in reduced wealth for workers. The author challenges the “large menu defense” espoused by the Third, Seventh and Eight Circuit Courts of Appeals as not fitting within the intent of ERISA’s “safe harbor.” In addition, the author questions the logic of these decisions by suggesting that courts are evaluating the employers’ legal responsibilities using free-market ideology rather than the fiduciary duties prescribed by ERISA and questions the belief that “large menu” pension benefit plans are wealth-maximizing.