Insurance Law Commons^™

Insurance And Cultural Perspectives On Katrina, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Consequences Of An Insurer's Breach Of The Duty To Defend: Columbia Casualty Co. V. Hiar Holdings, Llc In The Context Of The Ali Restatement Of The Law Of Liability Insurance, Jeffrey E. Thomas

Faculty Works

An insurer's duty to defend in connection with liability insurance policies is well-established and reasonably well understood. The consequences for the breach of that duty, however, are much less clear. On one hand, one might argue that this duty is a contractual duty giving rise to contractual remedies. The insured provides its own defense and, if the insurer wrongfully failed to provide a defense, the insured is entitled to reimbursement of its defense costs. On the other hand, this remedy seems insufficient; the value on an insurer's participation in the defense of a case goes beyond well merely paying the …

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …

Some Thoughts On Health Care Exchanges: Choice, Defaults, And The Unconnected, Brendan Maher

Faculty Articles and Papers

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance “exchanges.” Among other things, exchanges are intended to aid consumers in making simple and transparent choices regarding the purchase of health insurance. This Article considers how exchanges might benefit from the use of “default” options — both online and off. Given the significant number of Americans that have limited or no Internet access, offline defaults may be an attractive way to promote coverage of the “unconnected.”

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Faculty Scholarship

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Faculty Scholarship

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Using Principles And Policies Of Maritime Arbitration To Guide Responsible Parties In Oil Spill Claims Resolution, Lucy Martucci

Cardozo Journal of Conflict Resolution

This Note will: 1) provide an introduction to maritime arbitration, 2) discuss an example of a challenged arbitration award in the maritime context, 3) provide a background on OPA 90 and the National Pollution Funds Center ("NPFC"), 4) discuss the claims procedure under OPA 90, 5) discuss an example of a challenged NPFC decision, 6) discuss the problems with the GCCF, and 7) propose amendments to OPA 90. This Note will argue that in order to avoid the complex litigation that ultimately dissolved the GCCF, with the goals of cost efficiency, speed and fairness in mind, amendments to OPA 90 …

Confronting Financial Crisis: Dodd-Frank's Dangers And The Case For A Systemic Emergency Insurance Fund, Jeffrey N. Gordon, Christopher Muller

Faculty Scholarship

Inherent tensions in the financial sector mean that episodes of extreme stress are inevitable, if unpredictable. This is true even when financial regulatory and supervisory regimes are effective in many respects. The government's capacity to intervene may determine whether distress is confined to the financial sector or breaks out into the real economy Although adequate resolution authority to address a failing financial firm is a necessary objective of the current regulatory reforms, a firm-by-firm approach cannot address a major systemic failure. Major blows to the financial system, such as the financial crisis of 2007-2009, may require capital support of the …

Health Care And The Illegal Immigrant, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be …

Hidden Costs? Malpractice Allegations And Defensive Medicine Among Cardiac Surgeons, Barak D. Richman, Marco Huesch

Faculty Scholarship

This article evaluates the impact of private allegations of malpractice against cardiac surgeons on their patients’ outcomes and characteristics. While tort law may impact observable physician costs, malpractice allegations also impose hidden costs that could also affect physician behavior. We employ a large and multi-year panel dataset and patient-level analysis to ascertain whether malpractice allegations influence a surgeon’s practicing behavior. Using a generalized difference-in-difference model that controls for unobserved patient heterogeneity, clustering of patients within surgeon offices, contemporaneous expected risk, and other patient variables, we measure whether an allegation of malpractices affects a physician’s service intensity and use of healthcare …

Overbilling And Informed Financial Consent — A Contractual Solution, Barak D. Richman, Mark A. Hall, Kevin A. Schulman

Faculty Scholarship

U.S. hospitals and physicians regularly charge uninsured patients and patients receiving care outside their health-plan networks far more what most health insurers pay and far more than their actual costs. Such practices have triggered over 100 lawsuits and prompted calls for pricing transparency in Congress and price regulation in several states. This Perspective argues that the theory of implied contracts, a foundation in most first-year courses in contract law, offers a useful legal and ethical mechanism for handling these troubling problems in health care billing.

Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims Facility, Myriam E. Gilles

Articles

No abstract provided.

Establishing A New Protection And Indemnity (P&I) Insurance Institution In Turkey, Muhammet Alper Keceli

World Maritime University Dissertations

Insurance draws attention as a sector that is understood much better in terms of its importance especially in recent years globally and in Turkey as well and this sector is developing each day. In direct proportion to the development of insurance, the importance of marine insurance forming a special part of insurance has also come to the surface. Marine insurance, as a field has unique characteristics that can dominant from general insurance principles from certain angles, and stands before us as a dynamic field necessary to be reviewed and handled over and over again with the developments in the world. …

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

What constitutes an "occurrence," as defined by a commercial general liability policy, was again a significant focus of the appellate courts during the survey year. The Georgia Supreme Court finally resolved opposite positions taken by federal courts and state courts in Georgia, deciding that negligent faulty workmanship by a contractor resulting in damage to other property constitutes an occurrence. However, when an insured acts negligently, but with foresight, expectation, or design, such conduct will not be a covered occurrence. The Georgia Court of Appeals also reinforced the correct legal standard to consider when deciding whether an insured is justified in …

State Mandated Disability Insurance As Salve To The Consumer Bankruptcy Imbroglio, Alena Allen

BYU Law Review

From Main Street to Wall Street, Americans are hurting. In 2009, over 1.4 million families filed for bankruptcy. Researchers examining the causes of bankruptcy discovered that as many as sixty-two percent of all bankruptcies were precipitated by a medical crisis. Because many Americans are living paycheck to paycheck and lack disability insurance, when a medical crisis strikes, bank accounts are quickly depleted by the amalgam of high medical bills and lost wages. Disability insurance provides needed wage replacement when a worker is unable to work due to an illness or injury. This Article presents the case for statemandated disability insurance …

Litigating Bp's Contribution Claims In Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, Bruce L. Hay, Christopher Rendall-Jackson, David Rosenberg

Vanderbilt Law Review

In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident risk. Participants in such ventures generally have the option to determine by contract beforehand whether to subject themselves to contribution claims and, if so, whether such claims will be resolved by a publicly funded court or by a privately funded process, such as arbitration. Because …

Catastrophic Oil Spills And The Problem Of Insurance, Kenneth S. Abraham

Vanderbilt Law Review

The BP oil spill of 2010 focused considerable attention on the operating conduct of BP, on the potential liability of BP and other entities associated with the spill, and on the fund that BP established to provide compensation to victims of the spill. Much less attention has been paid, however, to the nature and scope of insurance covering losses caused by catastrophic environmental disasters such as oil spills. BP's establishment of the Gulf Coast Claims Facility, and the compensation that will be paid by that facility, will likely dampen awareness of the mismatches between the resulting losses and the insurance …

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Improving The Population’S Health: The Affordable Care Act And The Importance Of Integration, Lorian E. Hardcastle, Katherine L. Record, Peter D. Jacobson, Lawrence O. Gostin

O'Neill Institute Papers

Heath care and public health are typically conceptualized as separate, albeit overlapping, systems. Health care’s goal is the improvement of individual patient outcomes through the provision of medical services. In contrast, public health is devoted to improving health outcomes in the population as a whole through health promotion and disease prevention. Health care services receive the bulk of funding and political support, while public health is chronically starved of resources. In order to reduce morbidity and mortality, policymakers must shift their attention to public health services and to the improved integration of health care and public health. In other words, …

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

Faculty Works

Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …