Insurance Law Commons^™

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

Connecticut Insurance Law Journal

No abstract provided.

Improving State Regulation Of Homeowners Insurance: The Essential Protections For Policyholders Project, Jay M. Feinman

Connecticut Insurance Law Journal

No abstract provided.

Unlocking Exchanges, Brendan S. Maher

Connecticut Insurance Law Journal

No abstract provided.

Salvaging The Term "Suitor": How The Declaratory Judgment Act Has Commandeered Congressional Intent, Brett P. Hargaden

Roger Williams University Law Review

No abstract provided.

Rising To The Level Of Climate Science: Rhode Island, The National Flood Insurance Program, And Sea Level Rise Projections, Nicole E. Rohr

Roger Williams University Law Review

No abstract provided.

Benefits Of The U.S. Program For Terrorism Insurance From A Comparative Perspective, Jeffrey E. Thomas

Faculty Works

This article summarizes the U.S. program for terrorism insurance and outlines its advantages as compared to similar programs in other developed countries. The program, while similar to reinsurance, does not require participants to pay premiums but instead uses an ex post recoupment mechanism. Consequently, it is generally referred to as a Federal “backstop.” This approach requires less capital investment and makes “pricing” more accurate than a reinsurance approach. The program also requires insurers to maintain significant amounts of exposure through insurer deductibles and copayments, which creates market demand for the development of terrorism reinsurance in the private market. The current …

Introduction: Four Views On Healthism

Marquette Benefits and Social Welfare Law Review

None

Enterprise Without Entities, Andrew Verstein

Michigan Law Review

Scholars and practicing lawyers alike consider legal entities to be essential. Who can imagine running a large business without using a business organization, such as a corporation or partnership? This Article challenges conventional wisdom by showing that vast enterprises—with millions of customers paying trillions of dollars—often operate without any meaningful use of entities.

This Article introduces the reciprocal exchange, a type of insurance company that operates without any meaningful use of a legal entity. Instead of obtaining insurance from a common nexus of contract, customers directly insure one another through a dense web of bilateral agreements. While often overlooked or …

Computer Systems Fraud - Computer Systems Fraud In The Era Of Big Data And Ehrs, John Sepulveda

Touro Law Review

No abstract provided.

Why Arbitration Clauses May Make Sense In Cyber Insurance Policies, Andrew Nadolna, Adrienne Publicover, Daniel Garrie

Cardozo Journal of Conflict Resolution

In this Article, we will argue that policyholders should ask for an arbitration clause in their cyber policies and negotiate over the terms. We will also argue that insurers should offer more options in this space. In this regard, modular arbitration clauses can prove useful for both sides and lead to an effective dispute resolution mechanism for dealing with what may turn out to be a flood of cyber coverage disputes.

We will start with a discussion of the principal objections policyholders often have to mandatory arbitration clauses. Then we will discuss why some of these objections may cut differently …

Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French

Faculty Scholarship

In the December 6, 2016 Supreme Court decision, State Farm v. Rigsby, a homeowner’s house was damaged by Hurricane Katrina. The homeowner had homeowners insurance with State Farm and a flood insurance policy that was administered by State Farm on behalf of the federal government. The claims adjusters assigned by State Farm to handle the homeowner’s claim allegedly were instructed by State Farm to misclassify wind damage as flood damage in order to shift State Farm’s own liability for the loss to the federal government. The claims handlers filed a lawsuit against State Farm under the False Claims Act …

Insurance Policies: The Grandparents Of Contractual Black Holes, Chris French

Faculty Scholarship

In their recent article, The Black Hole Problem in Commercial Boilerplate, Professors Stephen Choi, Mitu Gulati, and Robert Scott identify a phenomenon found in standardized contracts they describe as “contractual black holes.” The concept of black holes comes from theoretical physics. Under the original hypothesis, the gravitational pull of a black hole is so strong that once light or information is pulled past an event horizon into a black hole, it cannot escape. In recent years, the theory has been reformulated and now the hypothesis is that some information can escape, but it is so degraded that it is virtually …

Despite Trump, Federal ‘Tort Reform’ Makes A Hasty Retreat, Joanne Doroshow

Other Publications

No abstract provided.

Dead Or Alive? The Law, Policy, And Market Effects Of Legislation On Unclaimed Life Insurance Benefits, James M. Carson, Robert E. Hoyt, Tim R. Samples

Notre Dame Journal of Law, Ethics & Public Policy

A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, …

Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic

Brooklyn Journal of Corporate, Financial & Commercial Law

The Dodd-Frank Wall Street Reform and Consumer Protection Act created, among other things, the Financial Stability Oversight Council (FSOC), an entity within the U.S. Department of the Treasury tasked with assessing and mitigating financial risk. Financial institutions with over $50 billion in assets are automatically deemed “systemically important.” However, under the Dodd-Frank Act, FSOC has the authority to designate non-bank companies engaged in financial activity as systemically important as well. Once designated as a systemically important financial institution (SIFI), these companies are subject to enhanced regulation and supervision by the Federal Reserve. Because the costs associated with such enhanced regulation …

Forced Arbitration’S Lethal Consequence, Joanne Doroshow

Other Publications

No abstract provided.

Compulsory Corporate Cyber-Liability Insurance: Outsourcing Data Privacy Regulation To Prevent And Mitigate Data Breaches, Minhquang N. Trang

Minnesota Journal of Law, Science & Technology

No abstract provided.

E/Insuring The Marijuana Industry, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Charting The Middle Course: An Argument For Robust But Well-Tailored Health Care Discrimination Protection For The Transgender Community, John E. Farmer

Georgia Law Review

Section 1557 of the Patient Protection and Affordable
Care Act offers sweeping discriminationprotections for
patients, applicable to both health insurers and health
care providers who receive federal funding or are
subject to federal administration. Placing itself in the
canon of federal antidiscriminationlaws, Section 1557
incorporates Title IX of the Education Amendments of
1972 to prohibit discrimination on the basis of sex.
Just how sweeping this aspect of Section 1557s
prohibitions is has been the subject of controversy
exemplified in litigation in the federal courts, as well as
in the starkly contrasting views of two presidential
administrations. The Department of Health …

Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel

Scholarly Works

Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would …

An Analytic "Gap": The Perils Of Relentless Enforcement Of Payment-By-Underlying-Insurer-Only Language In Excess Insurance Policies, Jeffrey W. Stempel

Scholarly Works

Excess liability insurance, as the phrase implies, sits atop primary insurance or a lower layer of excess insurance and is required to cover only claims that are above the policy's "underlying limit" and reach the "attachment point" of the excess policy in question. Historically, the law was largely indifferent to whether the underlying limit was exhausted by full payment from the underlying insurer or by other means such as payment by the policyholder due to an underlying insurer's insolvency or because the policyholder and underlying insurer had compromised a coverage dispute for less than 100 percent coverage by the underlying …

The American Health Care Act Would Toss The States A Hot Potato, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay explains how the American Health Care Act (AHCA) – the House Republicans’ proposed replacement for Obamacare – would toss a hot potato to state governments. Were the AHCA to be enacted into law, state governments would need to act promptly if they are to save individual insurance markets within their states. This essay explains measures that state governments might take to respond to this threat.

The Other "Personal Injury": Coverage B Of The Cgl Policy, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Role Of Prejudice In Resolving Insurance Condition Clause Disputes: The Good; The Bad; The Ugly, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

This Article examines the legal consequences that flow out of an insurance company’s denial of coverage based on an insured’s failure to comply with policy conditions. Specifically, this Article examines the various methods used by courts to strike a balance between the principle of freedom of contract and policy norms associated with resolving condition clause disputes. The pros and cons of the historical condition precedent vs. condition subsequent analysis and the modern day functional approach to contractual interpretation are dissected and discussed in the insurance contract context. The prejudice rule, which is associated with the functional approach to contract interpretation, …

Redefining Medical Care, Lauren R. Roth

Scholarly Works

President Donald J. Trump has said he will replace the Affordable Care Act (ACA) with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of “medical care” that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. …

Insuring Takings Claims, Christopher Serkin

Northwestern University Law Review

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

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

Mercer Law Review

A number of matters of first impression in Georgia were addressed during this survey period, including who bears the burden of establishing whether a vehicle is "uninsured," whether the use of a formula in establishing diminished value is bad faith, and what the trigger date is for coverage for claims of malicious prosecution and negligent repair. Additionally, the Georgia Supreme Court squarely and definitely addressed whether lead-based paint is a "pollutant" for purposes of a pollution exclusion in a Commercial General Liability (CGL) Policy.

Like A Bad Neighbor, Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information, the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches, based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp., is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation, causing the FTC to step in and fill the void in regulation. In the absence of congressional action, this self-proclaimed …

A Battlefield Map For Nfl V. Insurance Industry Re: Concussion Liabilities, Christopher C. French

San Diego Law Review

When the superstar athlete—“Iron Mike” Webster—a nine-time NationalFootball League (NFL) Pro Bowler, four-time Super Bowl Champion, Hall of Fame center for the Pittsburgh Steelers—died at age fifty with severe brain dysfunction after becoming homeless and living in a truck, it was discovered he had a previously nameless disease, Chronic Traumatic Encephalopathy (CTE). The discovery of CTE opened the floodgates on interest in delayed manifestation brain diseases caused by repeated blows to the head. As part of that flood, many retired NFL players brought numerous class actions against the NFL for their alleged brain diseases caused by the repeated blows to …