Policies and Perceptions of Insurance Law in the Twenty-First Century

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ISBN: 9780199273300 | 0199273308
Cover: Hardcover
Copyright: 9/1/2005

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In this book, Professor Malcolm Clarke provides a stimulating, critical introduction to the English law of insurance contracts, presenting the rules in both their legal and socio-economic contexts. He sets out the principles behind the law in a clear manner, moving on to explore the implications of certain rules in order to examine the importance of effective insurance and effective insurance law in modern society.

Bibliographical and Other Abbreviations

xix

Table of Cases

xxi

Table of Legislation

xxxii

1. Policyholders

(38)

Risk

(2)

Risk Aversion

(1)

Stress Aversion and the Purchase of Peace of Mind

(1)

Litigation

(7)

Aversion to Litigation

(1)

Conditional Fee Agreements

(1)

A Compensation Culture?

(1)

The Claims Crisis: Cloud or Mirage?

(1)

The Response of the Courts

(2)

Clouds on the Horizon

(1)

Premiums

(1)

Insurers: Spreading Risk

(1)

People: Assessing Risk

(8)

Homo Oeconomicus

(2)

Knowledge of Risk

(1)

Experience of Risk: Media Impact

(3)

Headlines

(2)

The Quality of Reporting

(1)

Freedom from Distraction

(1)

The Context of Society: Time and Place

(2)

Compulsory Insurance

(1)

The Demand for Insurance

(1)

The Insurance Marketplace

(4)

Traditional Products

(2)

Meeting Current Needs

(1)

The Choice of Insurer

(1)

Insurable Interest

(10)

Insurable Interest in Life

(4)

Ties of Affection

(1)

Dependence

(1)

The Problem of Finding a Rational Basis

(2)

Insurable Interest in Property

(5)

Buyers

(1)

Bailees

(1)

Builders

(2)

Insurable Interest: Why?

(3)

Gambling

(1)

Temptation and Moral Hazard

(1)

Removing both the Temptation and the Rule of Law

(2)

2. Insurers

(18)

The Emergence of Insurers

(3)

A Brief History

(1)

Lloyd's

(2)

Niche Insurers

(1)

Meeting or Making the Need

(4)

Publicity

(1)

Trains and Boats and Planes

(1)

Mutuality

(2)

Inspiring Confidence

(2)

An Image of Trustworthiness

(1)

An Image of Security

(1)

Risk Prediction

(5)

Risk on the Ground

(2)

Après Moi la Déluge: Clouds on the Horizon

(2)

Asbestosis

(1)

Climate Change

(1)

Risk at Law

(1)

Closing the Door: Risk Control and Risk Management

(4)

Measures of Prevention

(1)

Sharing Information: Collective Action

(1)

Loss Limitation and Cure

(2)

3. Insurance Intermediaries

(26)

Agents and Independents

(2)

Regulation

(5)

Authorization in the United Kingdom

(1)

Codes of Conduct

(1)

The Insurance Mediation Directive

(1)

Rules and Principles: ICOB

(5)

Scope

(1)

Core Principles

(1)

Information Duties

(1)

Contracting Insurance

(1)

Integrity: Commission

(1)

The Nature of Independents' Duties to Customers

(1)

Payment: Fee or Commission

(3)

The Problem of Consideration

(1)

The Problem of Consent

(1)

Conflicts of Interest: Spitzer

(1)

The Quality of Advice

(2)

Objectivity: Due Skill, Care, and Diligence

(2)

Subjectivity: Suitability of Advice

(1)

The Content of Advice

(1)

Rating Insurers

(1)

Policy Terms

(1)

Contracting Insurance

(2)

Disclosure

(1)

Renewal

(1)

Claims

(2)

The Liability of Independents

(5)

Contract and Tort

(1)

Third Party Beneficiaries

(5)

Remedies

(1)

Causation: Must Clients Check Their Policy?

(1)

Loose Ends: Limitation

(1)

Problems

(2)

Performance

(1)

Profitability

(2)

4. Contracting

(53)

Contract Formation

(8)

Documentation

(1)

Expectations of Cover

(2)

Expectations of Speed and Courtesy

(2)

Terms Offered

(1)

Unconditional Acceptance

(1)

Renewal and Variation

(2)

Flawed Consent

(1)

Mistake

(1)

Misrepresentation

(3)

Fact

(1)

The Value and Importance of Belief: Good Faith

(1)

Belief in Value and Importance: Underinsurance

(1)

Non-disclosure

(18)

The Duty of Insurers

(2)

Cover

(2)

Performance

101

(1)

The Duty of Applicants

101

(9)

Proof of Disclosure and Non-disclosure

102

(1)

Disclosure to Whom

102

(1)

The Prudent Insurer

103

(2)

Information Known to the Applicant

105

(1)

Information Known to the Insurer

106

(1)

The Problem of Information Retrieval

107

(2)

Marine and Non-marine Insurance

109

(1)

Facts that Diminish Risk

110

(1)

Waiver

110

(3)

Waiver of All Information

111

(1)

Waiver of Certain Information by Implication

112

(1)

Waiver of Certain Available Information

113

(1)

The Time of Disclosure

113

(1)

Disclosure or Investigation: Whose Line is it Anyway?

114

(2)

Remedies

116

(3)

Damages

116

(1)

Rescission

116

(3)

Effect in Law

116

(1)

Limits on the Right to Rescind

117

(2)

The Financial Ombudsman Service to the Rescue

119

(1)

Reform

119

(9)

The Australian Rule: The Reasonable Insured

120

(1)

The Swiss Rule: A Reasonable Response to Questions

120

(2)

The ELC's Reasonable Insured of that Kind

122

(1)

The French Rule: Proportionality

123

(1)

The American Rule

124

(2)

Conclusion: More Questions

126

(2)

Contracting Through Agents

128

(4)

The Problem of Persona

128

(3)

Authority

128

(1)

Split Personality

129

(2)

The Problem of Advice

131

(1)

Premium

132

(4)

Payment

132

(1)

Late Payment

133

(4)

Days of Grace

133

(1)

Mode of Payment: Direct Debits

134

(2)

5. Cover

136

(45)

Policies of Insurance

137

(2)

A Large Role for Small Print

137

(1)

Standard Forms

138

(1)

Words: The Rules of Interpretation

139

(16)

The Importance of Context

142

(3)

Words: The Problem of Comprehension

145

(1)

Comprehension by Courts

145

(1)

Comprehension by Policyholders

145

(2)

The Myth of Ordinary Meaning and Plain English

147

(4)

The Limits of Dictionaries

148

(1)

The Language of Precedent

149

(1)

Planes of Precision

150

(1)

Unexpected Effects

151

(2)

The Reasonable Expectations of Policyholders

153

(2)

The Use of Words: Terms of the Contract

155

(6)

Exceptions

157

(1)

Warranties

157

(2)

Exceptions, Warranties, and Causes

159

(1)

Problem: Distinguishing between Exceptions and Warranties

160

(1)

The Problem of Aggravation of Risk

161

(5)

Knowing Where You Are

161

(3)

Future Shocks

164

(2)

Continuing Warranties

164

(1)

Law Reform

165

(1)

The Prudent Uninsured: Unreasonable Care

166

(3)

The Response of Reasonable Policyholders

166

(1)

The Response of Reasonable Judges

167

(2)

Premium Incentive

169

(1)

Risk Management

170

(2)

Liability for Careless Advice

171

(1)

The Insurance Relationship

172

(3)

Nature

172

(1)

Duration

173

(1)

Flexible Friends Measures for the Unexpected

174

(1)

Rights of Renewal

175

(4)

Reality Check

175

(1)

Duress

176

(1)

Good Faith

177

(1)

Automatic Continuation

178

(1)

Where Next?

179

(2)

6. Claims: Taking the Drama out of the Crisis

181

(70)

The Claim

182

(1)

Loss

183

(1)

Causation

184

(4)

Rules of Construction

184

(1)

Or Common Sense?

185

(3)

Common Perils

188

(9)

Fire

188

(1)

Personal Accidents

189

(1)

All Risks

190

(2)

Liability

192

(10)

Loss

192

(1)

The Event

193

(1)

Occurrence

194

(2)

Loss Arising out of One Event: Highjacked Aircraft

196

(1)

Claims

197

(1)

Proving the Claim

197

(2)

Loss Adjusters

199

(1)

The Reality of Fraud

200

(1)

The Importance of Fraud

201

(1)

The Meaning of Fraud

202

(4)

Material Falsehood

203

(1)

Wishful Thinking

204

(1)

Exaggeration

205

(1)

Proof of Fraud

206

(1)

The Effect of Fraud

206

(3)

The Effect on the Claim

206

(1)

The Effect on the Contract

207

(1)

The Effect of Rescission

208

(1)

The Case of Joint Insurance

208

(1)

Countering Fraud

209

(6)

Image Problems

209

(1)

Better Information at the Underwriting Stage

210

(1)

Better Information at the Claims Stage

211

(3)

Surveillance and Human Rights

213

(1)

Reinstatement

214

(1)

Technical Defences

215

(4)

Non-disclosure

215

(1)

Late Notice

216

(5)

Reasonable Notice

216

(1)

Seven Days' Notice

216

(1)

Breach: Prejudice

217

(2)

Recoverable Loss

219

(1)

Measure of Loss

220

(1)

Cutting Losses: Policyholders

221

(5)

Duties

221

(1)

Assumption of Responsibility and Risk

222

(1)

Cost in the Absence of a Duty to Mitigate

223

(1)

Cost in Performance of a Duty to Mitigate

224

(2)

Cutting Losses: Insurers

226

(2)

Salvage

226

(1)

Advice to Mitigate Loss

227

(1)

Disincentives and Discounts: The Insurer as Supplier

227

(1)

Compromise and Settlement of Claims

228

(6)

Undue Influence

229

(3)

The Nature of Undue Influence

229

(1)

Direct Influence and Indirect Influence

230

(1)

Notice

231

(1)

Independent Advice

231

(1)

Effect in Law: Rescission

232

(1)

Abuse of Bargaining Power: Victimization

232

(1)

Duress

233

(1)

The Power of Information: Information Imbalance

234

(2)

Enforcement of Claims in the Courts

236

(1)

Claims Arbitration

237

(1)

Ombudsmen

238

(9)

The Financial Ombudsman Service (FOS)

239

(4)

Perceptions from Within and Without

239

(2)

Jurisdiction

241

(1)

Claims Procedure

242

(1)

Law and Market Practice: Justice Certain and Justice Seen

243

(4)

Compensation for Late Payment

244

(3)

Distress

247

(1)

Insolvency

247

(4)

Watchdogs that Bark too Late?

248

(1)

The Financial Services Compensation Scheme

249

(2)

7. Insurance and Society

251

(51)

The Role of Insurance

251

(1)

Moral Hazard

252

(1)

Carelessness

253

(2)

Uninsurable Loss: Intentional Injury

255

(9)

Deliberate Damage

255

(1)

Deliberate Injury

255

(1)

Expected Loss

256

(5)

Public Policy

257

(1)

Liability Cover

257

(2)

Compulsory Liability Cover

259

(1)

Personal Accident Cover

260

(1)

Certainties

261

(2)

Wilful Misconduct

263

(1)

Regulating Contract Terms

264

(11)

Validation

265

(1)

Interpretation by the Courts

266

(2)

Relative Truth

266

(1)

Safety Practice

266

(1)

The Effectiveness of Reliance on the Courts

267

(1)

The EC Directive 1993

268

(6)

The Scope of the Regime

268

(1)

Plain and Intelligible

268

(1)

Core Terms

269

(1)

Unfairness: Good Faith in English Courts

269

(2)

The Grey List

271

(1)

Good Faith in English Legal Literature

272

(1)

Enforcement of the Regulations

273

(1)

Self-regulation: Codes

274

(1)

Parliament and the FSA

274

(1)

The Role of the Courts

275

(12)

Social Engineering

276

(1)

The Problem of Information

277

(8)

Riding Unruly Horses

278

(2)

The Role of Counsel

280

(3)

The Role of Judges

283

(2)

The Response of the Courts

285

(2)

Insurance Law and Society

287

(15)

Economic Efficiency and Subrogation

287

(3)

Fairness

290

(8)

Classification of Risk

290

(2)

Discrimination

292

(1)

Insurance Discrimination

293

(1)

Unfair Discrimination

293

(1)

Unfair Sex Discrimination

294

(1)

Unfair Disease Discrimination

295

(1)

Genetic Tests

296

(2)

Insurers as Licensing Authority

298

(5)

The Public 'Right' to Cover

299

(1)

The Insurers' Right to Select Risks

299

(3)

8. Insurance and Law

302

(32)

The Insurer as God?

302

(1)

The Effect of Insurance on Rules of Law

303

(5)

Insurers and the Conduct of Litigation

303

(1)

Discovering Whether Insurance Exists

304

(1)

The Effect of Existing Insurance: in Theory

305

(1)

The Effect of Existing Insurance: in Practice

306

(2)

Invisible Effects: Development in the Courts

308

(8)

Vicarious Liability

309

(1)

Nuisance and Pollution

310

(1)

Res Ipsa Loquitur

311

(1)

The Duty of Care

311

(2)

Dirty Work

312

(1)

Dirty Play

313

(1)

The Standard of Care

313

(2)

Damages

315

(1)

Visible Effects: in Parliament

316

(3)

The Insurers' Voice

316

(1)

The Insurers' Limits

317

(1)

The Insurers' Fears and the Power of Persuasion

318

(1)

The Lessons of Insurance

318

(1)

Visible Effects: in the Courts

319

(14)

Available Insurance

319

(3)

Efficient Insurance

322

(3)

Tort: Loss or Liability Insurance—in General

325

(5)

Tort: Loss or Liability Insurance—Commercial Practice

330

(1)

Contract: Terms

331

(1)

Contract: Damages

332

(1)

Conclusion

333

(1)

9. The Sequel: Perceptions of the Past and of the Future

334

(25)

Certainty and Security

334

(2)

Certainty of Law

336

(1)

Certainty of Insurance Law

337

(4)

The Nature of People

341

(4)

Expectations of Speed and Convenience

341

(1)

Distrust

342

(1)

Trust: Image

343

(1)

Trust: Information

343

(1)

The Law of Cooperation

344

(1)

The Nature of Law and Language

345

(2)

Language

345

(1)

Lawyers

346

(1)

The Nature of Insurance Contracts

347

(5)

Definition or Description?

347

(1)

Statutory Definitions

348

(2)

The Financial Services and Markets Act 2000

348

(1)

The View of the FSA

349

(1)

Features Required by the Courts and Common Law

350

(1)

Rough Edges

351

(1)

Distinguishing the Payment of Contract Damages

351

(1)

Conflicting Purposes

352

(1)

The Nature of Insurance Contract Law

352

(5)

Common Law: Similarities

353

(1)

Common Law: Differences

354

(2)

Statute

356

(1)

Contract or Contracts?

357

(2)

Index

359

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Policies and Perceptions of Insurance Law in the Twenty-First Century

Summary

Author Biography

Table of Contents

Supplemental Materials