Understanding Insurance Law

, by Jerry, Robert H., II

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ISBN: 9780820524672 | 0820524670
Cover: Paperback
Copyright: 6/1/1996

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Supplemental Materials

Introduction

(1)

Why Study Insurance Law?

(2)

The Outline of This Book

(1)

Sources for Further Study

(7)

Multivolume Treatises: General

(1)

Multivolume Treatises: Specialized

(1)

One-Volume Treatises: General

(1)

One-Volume Treatises: Specialized

(1)

Casebooks

(1)

Case Reporting Services and Other Research Aids

(1)

Periodicals

(1)

One-Volume Works on the Insurance Industry and the Insurance Business

(1)

Other Written Materials

(1)

Electronic Data Resources

(4)

PART A WHAT IS INSURANCE LAW?

What Is Insurance?

Defining Insurance

(6)

The Nature of Risk

(1)

Coping with Risk

(2)

The Economics of Transferring and Distributing Risk

(1)

The Value of Transferring Risk

(1)

Economic Effects of the Transfer and Distribution of Risk

(2)

A Definition

(1)

A Brief Historical Overview

(3)

The ``Business of Insurance''

(5)

State Statutory Definitions

(4)

The McCarran-Ferguson Act Definition

(1)

Self-Insurance as the ``Business of Insurance''

(1)

Classification of Insurance

(1)

Classification by Nature of the Risk

(14)

Marine and Inland Marine

(1)

Life Insurance

(1)

Term versus Whole-Life

(4)

Other Categories of Life Insurance

(2)

Annuities

(2)

Life Insurance and Taxes

(1)

Fire and Casualty Insurance

(2)

Other Kinds of Insurance

(1)

First-Party versus Third-Party Insurance

(1)

A Trend Toward Reclassification?

(1)

Classification by Nature of the Insurer

(9)

Stock versus Mutual Companies

(1)

Lloyd's Syndicates

(4)

Fraternal Benefit Organizations

(1)

Other Private Insurance Entities

(1)

Government Insurance

(3)

Classification by Nature of Marketing

(2)

Sources of Insurance Law

The Rationale for Regulation: Generally

(3)

Legislative Regulation: State versus Federal Control

(30)

The Origins of the McCarran-Ferguson Act

(3)

The Substance of the McCarran-Ferguson Act

(1)

The Effects of the McCarran-Ferguson Act

(1)

Current Status of the State-Federal Accommodation

(1)

The ``Business of Insurance''

(6)

The ``Specifically Relates'' Exception

(1)

The Existence of a Conflict Between Federal and State Law

(2)

Federal Antitrust Law and State Regulation

(2)

The Boycott, Coercion, and Intimidation Exception

(3)

The Future of the State-Federal Accommodation

(1)

State-Federal Accommodation Issues Arising Under ERISA

(9)

The State Regulatory Framework: Statutory Controls

(14)

Objectives of State Regulation

(1)

Rate Regulation

(4)

Insurer Solvency

(2)

Unfair Practices and Insurer Overreaching

(2)

Coverage

(2)

Deregulation: A Realistic Alternative?

(3)

State Regulation: Administrative Controls

(4)

The Department of Insurance

(1)

National Association of Insurance Commissioners

(1)

How Effective Is State Regulation?

100

(2)

Case Studies in Regulation

102

(21)

The Controversy over Gender-Based Rating

102

(1)

Gender and Risk

102

(1)

The Supreme Court's Title VII Cases and Their Reach

103

(1)

The Proposed Federal Legislation

104

(1)

Is Gender-Based Rating Discriminating or Discriminatory?

104

(2)

State versus Federal Regulation

106

(1)

Unisex Insurance and Its Effect on the Marketplace

107

(2)

AIDS and Insurance Underwriting

109

(9)

Genetic Screening and Insurance Underwriting

118

(4)

A Concluding Thought on the Nature of Insurance

122

(1)

Judicial Regulation

123

(2)

Courts as Regulation

123

(1)

The Interplay Between Legislative and Judicial Regulation

123

(2)

Contract Interpretation

125

(13)

Kinds and Causes of Imprecision in Contracts

126

(3)

General Principles of Contract Interpretation

129

(5)

Interpretation of Insurance Contracts

134

(2)

The Role of Drafting History

136

(2)

Judicial Interpretation of Statutory Requirements

138

(1)

Insurance Policies as Adhesion Contracts

139

(2)

The Doctrine of Reasonable Expectations

141

(6)

Waiver and Estoppel

147

(3)

The Terminology

147

(1)

Common Uses of the Doctrines

148

(1)

Limitations on the Doctrines

149

(1)

Implied Warranty

150

(1)

Insurers' Liability for Bad Faith

151

(11)

The Early History of Bad Faith

152

(1)

Bad Faith in Third-Party Insurance

153

(3)

Bad Faith in First-Party Cases

156

(2)

Current Contours of Bad Faith

158

(1)

ERISA Preemption

158

(1)

Nature of Misbehavior Required to Constitute Bad Faith

159

(2)

Statutory Penalties and Related Remedies

161

(1)

Reverse Bad Faith

161

(1)

Reformation

162

(1)

The Policing Effect of the Absent Policy Defense

163

(6)

PART B ESTABLISHING THE CONTRACTUAL RELATIONSHIP

Contract Formation

The Process of Contract Formation: An Overview

169

(2)

The Legal Requirements for Forming a Contract

171

(7)

Offer and Acceptance

171

(3)

Consideration

174

(1)

Capacity

174

(1)

The Writing Requirement

175

(2)

Public Policy

177

(1)

Some Troublespots in the Process of Contract Formation

178

(14)

Insurer's Delay in Responding to the Application

178

(4)

The Insured's Duty to Read the Policy

182

(2)

The Insurer's Duty to Explain the Policy

184

(5)

The Role of Standardization and the Use of Forms

189

(1)

Vending Machine Marketing

189

(3)

The Binder

192

(8)

Nature and Purposes

192

(1)

Oral Binders

193

(1)

Types of Binders

194

(2)

Judicial Regulation of Binders

196

(4)

Delivery of the Policy

200

(3)

The Event and Its Purpose

200

(1)

Constructive Delivery

200

(1)

Good Health Clauses and Other Conditions on the Effectiveness of Delivery

201

(2)

The Intermediary's Role in Contract Formation

203

(26)

Overview

203

(1)

General Principles of Agency

204

(1)

General Agency Principles in the Context of Insurance

205

(1)

Types of Agents

206

(1)

Agents versus Brokers

207

(2)

Liability of Agents to Brokers

209

(1)

Liability of Agents to Insured

209

(1)

Liability of Agents or Broker to Insured or Applicant

210

(1)

The Professional's Duty of Care

211

(1)

Liability of Agents or Brokers to Insured for Failure to Provide Proper Advice

211

(4)

Liability of Agents or Brokers to Insured for Failure to Procure Insurance

215

(3)

Liability for Placing Insurance with Insolvent or Unauthorized Insurer

218

(2)

An Aside on the Duty to Procure: Obligations of Those Outside the Insurance Business to Procure Insurance

220

(2)

Liability of Agent or Broker to Third Party

222

(1)

Liability of Insurer to Agent or Broker for Damages Caused by Insurer's Nonpayment of Proceeds

223

(1)

Ability of Intermediary to Bind Insurer

224

(1)

Power of Intermediary to Contract on Insurer's Behalf

225

(1)

Ability of Intermediary to Modify or Alter Coverage

226

(1)

Effect of Misstatements on Application Prepared by Agent

226

(1)

Legal Effect of Liminations on Powers in Application or Policy

227

(2)

Effect of Giving Notice to Intermediary

229

(1)

Conflict of Laws

229

(4)

The Insurable Interest Requirement

Origins and Purposes of the Insurable Interest Requirement

233

(4)

Relationship of the Insurable Interest Requirement to the Principle of Indemnity

237

(1)

Property Insurance and the Insurable Interest Requirement

238

(12)

Legal Interest versus Factural Expectancy: The Early English Cases

238

(4)

The Legal Interest Test

242

(1)

Property Rights

243

(2)

Contract Rights

245

(1)

Legal Liability

246

(1)

The Factual Expectancy Test

247

(3)

Life Insurance and the Insurable Interest Requirement

250

(5)

Timing: When Must the Insurable Interest Exist?

255

(3)

Property Insurance

255

(1)

Life Insurance

256

(1)

Liability Insurance

257

(1)

Waiver and Estoppel: Preventing and Insurer from Denying the Existence of an Insurable Interest

258

(2)

Property Insurance and the Insurable Interest Requirement: Some Troublespots

260

(4)

Stolen Property

260

(2)

Property with a ``Negative'' Value

262

(2)

Life Insurance and the Insurable Interest Requirement: Some Troublespots

264

(9)

Assigning a Life Insurance Policy to One Lacking an Insurable Interest

264

(1)

Standing to Question Insurable Interest

265

(2)

Incontestability Clauses

267

(1)

Tort Liability for Inssuing Policy to One Lacking an Interest in the Insured's Life and the Role of Consent

268

(3)

Insurable Interest in Industrial Life Insurance

271

(2)

Scope of Obligations: Persons and Interests Protected

The Meaning of ``Insured''

273

(1)

Identifying the Insured (or Payee)

273

(9)

Specific Designations

273

(1)

The Omnibus Clause and Omnibus Coverage

274

(8)

The ``Loss Payable'' Clause

282

(1)

The Interests in a Life Insurance Policy

282

(1)

Beneficiaries Under Life Insurance Policies

283

(20)

When the Beneficiary's Rights Vest

283

(1)

Naming and Designating the Beneficiary

284

(3)

Changing the Beneficiary

287

(4)

Claims to Proceeds

291

(1)

Creditor versus Beneficiary

291

(2)

Creditor as Beneficiary

293

(1)

Trustee in Bankruptcy versus Beneficiary

293

(1)

Assignee versus Beneficiary

293

(3)

Disqualification of the Beneficiary

296

(3)

Community Property Laws

299

(2)

The Common Disaster Problem

301

(2)

Payment to Wrong Beneficiary

303

(1)

Assigness

303

(4)

Overview: The Nature of an Assignment

303

(1)

Assignment of Right to Proceeds versus Assignment of Entire Policy

304

(1)

Assignment in Property and Liability Insurance

304

(2)

Assignment in Life Insurance

306

(1)

Special Problems in Property Insurance

307

(1)

Mortgages and Conditional Sales

307

(13)

The Standard Mortgage Clause

307

(4)

The Open Mortgage Clause

311

(1)

Speical Problems in Applying the Standard Mortgage Clause

312

(1)

Mortgagee's Right to Satisfaction of Debt

312

(4)

Right of Mortgagee to Assign Interest in Policy to Successor Mortgagee

316

(1)

Effect of Mortgagee's Foreclosure on Insured Property

316

(3)

Reimbursing a Partial Loss When the Mortgagor is Disqualified from Coverage

319

(1)

The Unnamed Mortgage

320

(1)

Vendor-Purchaser Transactions

320

(6)

Mortgages and Real Estate Sales: An Observation

326

(2)

Life Tenant-Remainderman

328

(1)

Lessor-Lessee

329

(2)

Transactions in Goods

331

(3)

Bailments

334

(3)

Scope of Obligations: The Risks Covered

The Scope of Coverage

337

(1)

All-Risk versus Specified-Risk Coverage

337

(3)

The Nature of Coverage Provisions

340

(4)

The Personal Nature of Insurance

340

(1)

An Overview of the Various Kinds of Common Coverages

341

(3)

Expanding Coverage Beyond the Policy's Literal Language

344

(8)

Creating Coverage Through Estoppel

344

(5)

Other Doctrines

349

(1)

The Parol Evidence Rule

349

(3)

Limitations on Coverage: Generally

352

(1)

Explicit Limitation: Duration of Coverage

352

(18)

Commencement of Coverage

352

(2)

Termination of Coverage

354

(1)

Cancellation of Coverage

355

(1)

General Principles

355

(1)

Unilateral Cancellation

356

(2)

Statutory Canellation Procedures

358

(3)

Public Policy Restrictions on Cancellation by the Insurer

361

(2)

Reinstatement

363

(1)

Defining the Time During Which Loss Must Be Suffered

364

(6)

Conditions as Explicit Limitations on Coverage

370

(12)

An Overview

370

(1)

Evidentiary Conditions

371

(4)

Some Common Conditions and Their Legal Effects

375

(1)

Increase of Hazard Clauses

375

(3)

Reporting Conditions

378

(1)

Vacancy and Occupancy Clauses

379

(3)

Intentional Conduct: An Overview

382

(2)

Intentional Conduct and Property Insurance

384

(4)

Intentional Conduct and Personal Insurance: Life and Accidental Death

388

(12)

Suicide

388

(2)

Death While Intentionally Involved in Unlawful Conduct

390

(4)

Execution of Insured

394

(1)

Accidental Death Benefit: Distinguishing Intentional Acts and Accidents

395

(5)

Intentional Conduct and Liability Insurance

400

(13)

``Intended'' and ``Expected''

401

(2)

``Intended'' Construed

403

(6)

Self-Defense

409

(1)

Diminished Mental Capacity

410

(3)

Particular Coverage Issues in Personal Insurance

413

(27)

Life Insurance

413

(1)

Accidental Death: Defining ``Accident''

413

(6)

Accidental Death: Limits on the Time Between the Accident and the Death

419

(2)

Disability Insurance

421

(3)

Health Insurance

424

(1)

Health Insurance and Health Care Reform

425

(4)

Pre-Existing Conditions

429

(2)

Experimental Treatments

431

(2)

Medically Necessary Services

433

(4)

Mandated Coverages

437

(3)

Special Coverage Problems in Liability Insurance

440

(37)

The Scope of the CGL

440

(3)

The Meaning of Occurrence

443

(1)

Problems With the Word ``Accident''

443

(4)

Problems of Multiple Losses From a Single Cause

447

(4)

Problems of What Triggers Coverage

451

(8)

Problems of Environmental Liability

459

(1)

The Regulatory Context

459

(1)

The ``As Damages'' Issue

460

(1)

The Voluntary Cleanup Issue

461

(1)

PRP Letters and the Duty to Defend

462

(1)

The Existence of an Occurrence

462

(1)

The Pollution Exclusions

463

(7)

The Owned-Property Exclusion

470

(1)

Coverage of Punitive Damages Assessed Against the Insured

471

(6)

Particular Coverage Issues in Property Insurance: The Friendly Fire Rule

477

(5)

Coverage of Remote or Distant Causes of Loss

482

(25)

The Basic Problem

482

(2)

The Doctrine of Efficient or Predominant Cause

484

(5)

The Liberal View of Causation

489

(2)

The Conservative View of Causation

491

(3)

Other Causation Frameworks

494

(1)

The Patterson Framework

494

(3)

The Brewer Framework

497

(1)

A Dual-Filter Approach to Causation

498

(3)

Problems With the Term ``Proximate''

501

(2)

Summary

503

(4)

PART C PERFORMING THE CONTRACTUAL OBLIGATIONS

The Insured's Duty to Pay Premiums

Nature of the Obligation to Pay Premiums

507

(2)

The Nature of a ``Premium''

507

(1)

The ``Duty'' to Pay Premiums

508

(1)

Installment Premium Financing

508

(1)

The Necessity of Paying the Premium

509

(8)

Generally

509

(1)

Conclusiveness of Representation in Policy that First Premium Has Been Paid

509

(1)

Necessity of Paying Premium Before Loss

510

(2)

Mode of Paying Premiums

512

(1)

Time for Payment

513

(3)

Timeliness of Payment

516

(1)

Grace Periods

517

(2)

Automatic Premium Payments Through Financial Institutions: Special Problems

519

(4)

The Mechanics of Claim Presentation

Overview

523

(1)

Notice of Loss Provisions

523

(11)

Purpose of the Notice of Loss Provision

523

(1)

Manner of Giving Notice

524

(2)

When Notice Is Due

526

(2)

Excuses for Noncompliance

528

(1)

Effect of Noncompliance

529

(5)

Proof of Loss

534

(7)

Overview

534

(1)

Substantive Requirements

534

(2)

Effect of Noncompliance

536

(1)

False Swearing

537

(4)

Disposition of Claims: Alternatives to Litigation

541

(2)

Appraisal (Property Insurance)

541

(1)

Arbitration

541

(2)

Disposition of Claims: Litigation

543

(8)

Timeliness of the Suit Against the Insurer

543

(5)

No-Action Clauses and Direct Action Statutes

548

(3)

The Insured's Duty to Cooperate With the Insurer

551

(8)

Duties, Conditions, Express and Implied Terms

551

(1)

Generally

551

(1)

As Applied to Insurance

552

(1)

What Constitutes Noncooperation

553

(1)

When Noncooperation Gives the Insurer a Valid Defense

554

(5)

The Insurer's Duty to Pay Proceeds

Source of the Duty

559

(1)

Failure of the Insured to Mitigate the Amount the Loss

559

(5)

Measuring the Amount of the Loss: Marine Insurance

564

(6)

Total Loss, Partial Loss, and ``Average''

565

(1)

General Average

566

(1)

A General Formula

567

(2)

Particular Average

569

(1)

The ``Memorandum''

569

(1)

Measuring the Amount of the Loss: Property Insurance

570

(22)

The Principle of Indemnity

570

(4)

Coinsurance Requirements

574

(5)

Valued Policies

579

(2)

``Actual Cash Value''

581

(1)

Replacement Cost Less Depreciation

582

(1)

Market Value

582

(2)

Replacement Cost

584

(1)

Broad Evidence Rule

585

(1)

Choosing a Measure: Some Problems

586

(1)

Used Goods

586

(1)

Appreciated Property

587

(1)

Obsolescent Property

588

(1)

Coinsurance Calculations

589

(1)

Interest

590

(2)

Measuring the Amount of Loss: Personal Insurance

592

(4)

Generally

592

(1)

Accelerated Benefits in Life Insurance

593

(3)

Measuring the Amount of Loss: Liability Insurance

596

(4)

Generally

596

(1)

Interest, Expenses, and Costs

596

(1)

Insolvency Clauses and Statutes

597

(1)

Immunity of Insureds

597

(3)

The Insurer's Right of Subrogation

600

(27)

Overview

600

(2)

Equitable versus Conventional Subrogation

602

(2)

Existence or Nonexistence of Subrogation by Line of Insurance

604

(1)

The Requirement that the Insurer Must Have Paid the Debt

605

(6)

The Requirement that the Insurer Must Not Be a Volunteer

611

(1)

Subrogation Against Insured Not Allowed

612

(1)

Defenses to Subrogation and the Effect of Releases on Coverage

613

(1)

The General Rule Regarding Defenses

613

(1)

Release of Tortfeasor Prior to Loss

614

(3)

Release of Tortfeasor After Loss

617

(2)

Summary

619

(1)

Parties in Interest

620

(2)

Loan Receipts

622

(5)

Other Insurance Clauses

627

(24)

Overview

627

(1)

Other Insurance Clauses in Personal Insurance

628

(1)

Types of Other Insurance Clauses

629

(3)

Conflicts Among Other Insurance Clauses and Other Problems of Enforcement

632

(2)

Pro Rata Clause versus Excess (or Escape) Clause

634

(2)

Excess versus Excess (and Escape versus Escape)

636

(2)

Excess versus Escape

638

(1)

The Problem of Secondary or ``True Excess'' Coverage

639

(2)

Impact of Insolvency of Primary Insurer

641

(1)

Toward a Solution

642

(1)

Proration Formulas

643

(2)

Some Additional Troublespots

645

(1)

Sharing Defense Costs

645

(1)

Invalidity of Otherwise Collectible ``Other Insurance'' Due to Act or Neglect of Insured

646

(1)

Self-Insurance as ``Other Insurance''

647

(1)

Deductibles and Coinsurance Requirements

647

(4)

Resolving Disputes on Who Gets the Proceeds: The Interpleader Remedy

651

(3)

Remedies for the Insurer's Breach of the Duty to Pay Proceeds

654

(9)

General Contract Remedies

654

(1)

Loss of the Bargain

654

(1)

Other Loss

655

(1)

Attorney's Fees and Penalties

656

(1)

Punitive Damages

657

(1)

Tort Remedies

657

(1)

Effect of Mistaken Payment by the Insurer

658

(5)

Excuses for the Insurer's Nonperformance

Generally

663

(1)

Insured's Breach of Warranty

663

(19)

Definition

663

(1)

Creation of a Warranty

664

(1)

Effect of Noncompliance with a Warranty

665

(2)

Warranties versus Representations

667

(2)

Mitigating Doctrines

669

(1)

Affirmative versus Promissory Warranties

669

(1)

Judicial Interpretation

670

(3)

Statutory Mitigation

673

(4)

Is Mitigation Appropriate?

677

(1)

The Distinction between Warranties and Coverage Provisions

678

(4)

Insured's Misrepresentation

682

(15)

A General Rule

682

(1)

Representation versus Warranty

683

(1)

The Requirement That the Representation Be Untrue or Misleading

684

(2)

Materiality

686

(4)

Reliance

690

(1)

Intent and Its Relation to Materiality and Reliance

691

(1)

Misrepresentation of Age in Life Insurance

692

(1)

Statutory Regulation

693

(1)

The Obligation to Correct Misrepresentations

694

(2)

How Much Regulation of the Defense is Appropriate?

696

(1)

Insured's Concealment

697

(5)

Overview: Distinguishing Misrepresentation from Concealment

697

(1)

The General Rule

698

(2)

Materiality

700

(1)

Intent

700

(1)

A Continuing Obligation

701

(1)

Justifications for Not Disclosing Material Information

701

(1)

Limitations on the Insurer's Defenses

702

(1)

Waiver and Estoppel

702

(1)

Incontestability

703

(11)

Overview

703

(1)

Scope of Incontestability Clauses

704

(1)

Temporal Scope

704

(1)

Coverage versus Validity

705

(1)

Void Ab Initio Versus Voidable

706

(1)

Exceptions versus Conditions

707

(1)

Incontestability and the Defense of Fraud

707

(2)

Troublespots

709

(1)

Reinstatement and Renewal

709

(1)

Group Insurance

710

(4)

Divisibility or Severability

714

(5)

The Additional Duties in Third-Party Insurance

The Insured's Duty to Cooperate and Assist in the Defense

719

(10)

Overview

719

(1)

The Reciprocal Nature of the Insurer's Duties and the Insured's Duty to Cooperate

720

(4)

Materiality and Prejudice

724

(2)

Burden of Proof

726

(1)

Common Instances of Noncooperation

726

(1)

Insured's Absence from Trial or Other Proceeding

726

(1)

Making False Statements to the Insurer

727

(1)

Collusion

728

(1)

Noncooperation and Compulsory Insurance

728

(1)

The Insurer's Duty to Defend

729

(34)

Source of the Duty

729

(3)

To Whom Is the Duty Owed?

732

(1)

The Tests for Whether the Insurer Must Defend a Particular Claim

733

(1)

The General Rule

734

(1)

Evidence Extrinsic to the Complaint

734

(2)

Ambiguous Claims

736

(1)

Complaint Containing Claims Within Coverage and Claims Outside Coverage

737

(3)

Narrowing the Duty When a Fact Issue Dispositive of Coverage Will Not Be Resolved in the Underlying Action

740

(4)

Triggering the Duty to Defend: When Does the Duty Exist?

744

(1)

Premature Termination of the Duty to Defend

745

(1)

Discovery of Facts That Negate Coverage

745

(1)

Terminating the Duty to Defend by Paying the Policy Limits

746

(4)

Disclaiming Coverage

750

(1)

Standard of Conduct: The Duty of Care

751

(1)

Remedies for Breach of the Duty to Defend

752

(1)

Attorney's Fees and Other Costs Incurred in Defending the Underlying Action

752

(1)

Excess Judgment

752

(2)

Attorney's Fees in the Insured's Action Against the Insurer's Declaratory Judgment Action

754

(1)

Tort Damages

755

(1)

Liability for the Insured's Settlement of the Underlying Action

756

(2)

Breach of the Duty to Defend as an Estoppel to the Insurer's Denial of Coverage

758

(2)

Other Consequences of Breaching the Duty to Defend

760

(1)

The Insured's Duty to Mitigate Damages When the Insurer Breaches the Duty to Defend

760

(2)

``Defense Within Limits'' Politices

762

(1)

Settlement Obligations

763

(13)

Insured's Settlement Without Insurer's Consent

764

(1)

The Standard for Determining the Nature of the Insurer's Duty to Settle

765

(1)

The Reasonable-Offer Test

765

(2)

The Strict Liability Alternative

767

(2)

Source of the Insurer's Obligation: Tort or Contract?

769

(2)

Insurer Conduct Constituting Breach of the Duty to Settle

771

(1)

The Mechanics of Handling Settlement Offers

772

(1)

Remedies for Breach of the Duty to Settle

773

(1)

Effect of Breaching the Duty to Defend on the Duty to Settle

774

(2)

A Duty to Mitigate?

776

(1)

The Insurer's Duty With Regard to Appeals

776

(3)

Conflicts of Interest

779

(40)

Overview

779

(3)

The Basic Alternatives: To Whom Is Loyalty Owed?

782

(1)

The Dual Representation Model

782

(3)

What Happens When Dual Representation Is No Longer Possible?

785

(1)

Assessing the Dual Representation and One-Client Models

786

(5)

A Concluding Thought

791

(2)

Managing Conflicting Interests

793

(1)

The ``Do Nothing'' Alternative

793

(1)

The ``Abandon the Insured'' Alternative

794

(1)

The Nonwaiver Agreement and Reservation of Rights Notice

795

(3)

Declaratory Judgment

798

(2)

Joint Lawsuit to Determine Coverage and the Validity of the Plaintiff's Claim

800

(1)

Separate or Independent Counsel for Insured

801

(1)

The Separate Counsel Approach

801

(1)

Independent Counsel for Insured

801

(6)

Particular Conflicts and Their Resolution

807

(1)

Claims Exceeding the Policy Limits

807

(2)

Insured's Noncooperation

809

(5)

Disclosure of Information by Insured Inconsistent with Insurer's Obligation

814

(2)

Common Issue Cases

816

(1)

Multiple Insureds with Conflicting Interests

817

(2)

Insured's Counterclaims

819

(1)

Problems of Primary versus Excess Coverage

819

(8)

Some ``Guiding Principles''

820

(1)

The Primary Insurer's Duty and Its Source

821

(1)

Allocating Defense Costs Between Primary and Excess Carrier

822

(5)

PART D SOME REMAINING MATTERS

Group Insurance

Overview: The Nature of Group Insurance

827

(1)

The Tripartite Contract: Problems of Agency

828

(3)

Special Problems of Contract Interpretation

831

(4)

The Problem of Multiple Documents

831

(2)

The ``Actively at Work'' Problem

833

(2)

Special Problems of Risk Control

835

(1)

Termination and Modification

836

(2)

Assignments; Changing the Beneficiary; Standing to Sue

838

(1)

Legislation Affecting Group Insurance

839

(4)

Automobile Insurance

Overview

843

(1)

The History of Automobile Accident Compensation

843

(6)

The Current Landscape for Compensating Automobile Accident Injuries

849

(12)

The Traditional System

849

(1)

Overview

849

(1)

The Liability Insurance Component

849

(1)

Financial Responsibility Requirements

849

(2)

Observations

851

(1)

Add-on-No-Fault

852

(1)

True-No-Fault

852

(2)

Choice Systems

854

(1)

Possible Future Developments

855

(1)

Preceptions of the Current System

855

(1)

Second-Generation No-Fault Proposals

856

(3)

Applying No-Fault Beyond the Motor Vehicle Setting: Neo-No-Fault Proposals

859

(2)

Compulsory Liability Insurance and Financial Responsibility Insurance: Some Additional Issues

861

(5)

The Problem of Intenational Conduct

861

(2)

The Effect of the Insured's Bankruptcy on Victim Compensation

863

(2)

Insurer's Defense Against Insured

865

(1)

Uninsured and Underinsured Motorist Insurance

866

(10)

Purpose

866

(1)

Nature of Uninsured Motorist Coverage

866

(1)

Four Elements of Coverage

866

(1)

The ``Legally Entitled'' Requirement and Immunity

867

(1)

Exclusions

868

(2)

Hit-and-Run Acciddents

870

(5)

The Nature of Underinsured Coverage

875

(1)

Property Coverage in Automobile Insurance

876

(2)

Other Issues in Automobile Insurance

878

(1)

What Constitutes ``Use'' of an Automobile

878

(9)

What Constitutes ``Ownership''

887

(2)

The Family (or Household) Exclusion

889

(3)

Stacking of Automobile Insurance Benefits

892

(5)

Overview

892

(1)

Liability Insurance

893

(1)

Uninsured Motorist Insurance

893

(2)

No-Fault Coverages

895

(2)

Reinsurance

Overview

897

(3)

Definition

897

(1)

Types of Reinsurance Arrangements and Coverage

898

(2)

Purposes

900

(1)

Legal Issues Involving Reinsurance

901

Insurable Interest

901

Insolvency of the Primary Insurer

902

Reinsurer's Defenses and the Duty of Utmost Good Faith

903

Rights of Original Insured Against Reinsurer

903

``Following the Fortunes''

904

Table of Cases

TC-1

Index

I-1

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Table of Contents

Supplemental Materials

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