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ISBN 10: 1531001292
ISBN 13: 9781531001292
Author: Robert Jerry, Douglas Richmond
This comprehensive Understanding treatise can be used as the primary course text or as a supplement to any insurance law casebook. Understanding Insurance Law is designed to make the substance of insurance law accessible to students and general practitioners who are unfamiliar with the subject. Prior editions of the book have been widely cited as authoritative by federal and state courts.The premise of this book’s organization is that insurance law is best understood if its legal principles are arranged according to the various stages in the life of a contract. Part A considers the question, “What is insurance law?” Part B considers issues germane to the establishment of the contractual relationship between insurer and insured. Part C considers issues relevant to the performance of contractual obligations. In particular, this Part treats issues related to claim presentation in all lines of coverage and liability insurers’ duties in a comprehensive fashion unmatched in any other single-volume treatise. Finally, Part D examines topics that defy easy categorization, including special problems in group insurance, special issues in automobile insurance, issues in reinsurance, and a chapter on excess and umbrella coverage.
Understanding Insurance Law 6th Table of contents:
Introduction
§ 1 Why Study Insurance Law?
§ 2 The Outline of This Book
PART A
WHAT IS INSURANCE LAW?
Chapter 1 · What Is Insurance?
§ 10 Defining Insurance
[a] The Nature of Risk [b] Coping with Risk [c] The Economics of Transferring and Distributing Risk [d] A Definition§ 11 A Brief Historical Overview
§ 12 The “Business of Insurance”
[a] State Definitions [b] The McCarran-Ferguson Act Definition [c] Self-Insurance as the “Business of Insurance”§ 13 Classification of Insurance
§ 13A Classification by Nature of the Risk
[a] Marine and Inland Marine [b] Life Insurance [c] Fire and Casualty Insurance [d] Other Kinds of Insurance [e] First-Party versus Third-Party Insurance [f] A Trend Toward Reclassification?§ 13B Classification by Nature of the Insurer
[a] Stock versus Mutual Companies [b] Lloyd’s Associations [c] Fraternal Benefit Organizations [d] Reciprocal Exchanges [e] Government Insurance§ 13C Classification by Nature of Marketing
[a] Group versus Individual Insurance [b] Classification by Distribution ChannelChapter 2 · Sources of Insurance Law
§ 20 The Rationale for Regulation: Generally
§ 21 Legislative Regulation: State Versus Federal Control
[a] The Origins of the McCarran-Ferguson Act [b] The Substance of the McCarran-Ferguson Act [c] The Effects of the McCarran-Ferguson Act [d] Current Status of the State-Federal Accommodation [e] The Future of McCarran-Ferguson [f] State-Federal Accommodation Issues Arising Under ERISA§ 22 The State Regulatory Framework: Statutory Controls
[a] Objectives of State Regulation [b] Rate Regulation [c] Insurer Solvency [d] Unfair Practices and Insurer Overreaching [e] Coverage§ 23 State Regulation: Administrative Controls
[a] State Departments and Commissions [b] National Association of Insurance Commissioners [c] National Conference of Insurance Legislators§ 23A The Future of State Regulation
[a] State Regulation: Pros and Cons [b] Implications of Federal Financial Services Regulation for State Insurance Regulation§ 24 Issues in Insurance Regulation and Public Policy
[a] Gender-Based Rating [b] Genetic Screening and Insurance Underwriting [c] Difficult Risks [d] Big Data, Credit Scores, Pricing, and Underwriting [e] A Concluding Thought on the Nature of Insurance§ 25 Judicial Regulation
[a] Courts as Regulators [b] The Interplay Between Legislative and Judicial Regulation§ 25A Contract Interpretation
[a] Kinds and Causes of Imprecision in Contracts [b] Principles of Interpretation§ 25B Judicial Interpretation of Statutory Requirements
§ 25C Reasonable Expectations
§ 25D Waiver, Estoppel, and Election
[a] Elements & Terminology [b] Examples of Uses of the Doctrines [c] Estoppel and the Expansion of Coverage [d] Limitations on the Doctrines [e] Implications of the Parol Evidence Rule§ 25E Implied Warranty
§ 25F Insurers’ Liability for Bad Faith
[a] The Early History of Bad Faith [b] Bad Faith in Third-Party Insurance [c] Bad Faith in First-Party Cases [d] Insurer Misconduct Required to Constitute Bad Faith [e] Statutory Penalties and Related Remedies [f] Reverse Bad Faith [g] Bad Faith in the Absence of Coverage§ 25G Reformation
PART B
ESTABLISHING THE CONTRACTUAL RELATIONSHIP
Chapter 3 · Contract Formation
§ 30 The Process of Contract Formation: An Overview
§ 31 The Legal Requirements for Forming a Contract
[a] Offer and Acceptance [b] Consideration [c] Capacity [d] The Writing Requirement [e] Public Policy§ 32 Some Trouble Spots in the Process of Contract Formation
[a] Insurer’s Delay in Responding to the Application [b] The Insured’s Duty to Read the Policy [c] The Insurer’s Duty to Explain the Policy [d] The Role of Standardization and the Use of Forms [e] Renewals: New Contracts or Extensions of the Old?§ 33 The Binder
[a] Nature and Purposes [b] Oral Binders [c] Types of Binders [d] Judicial Regulation of Binders [e] Defenses to the Binder§ 34 Delivery of the Policy
[a] The Event and Its Purpose [b] Constructive Delivery [c] Good Health Clauses and Other Conditions on the Effectiveness of Delivery§ 35 The Intermediary’s Role in Contract Formation
[a] Overview [b] General Principles of Agency [c] General Agency Principles in the Context of Insurance [d] Types of Agents [e] Agents versus Brokers [f] Liability of Agents or Brokers [g] The Intermediary’s Ability to Bind the Insurer§ 36 Conflict of Laws
Chapter 4 · The Insurable Interest Requirement
§ 40 Origins and Purposes of the Insurable Interest Requirement
§ 41 Relationship of the Insurable Interest Requirement to the Principle of Indemnity
§ 42 Property Insurance and the Insurable Interest Requirement
[a] Legal Interest versus Factual Expectancy: The Early English Cases [b] The Legal Interest Test [c] The Factual Expectancy Test [d] Statutory Requirements§ 43 Life Insurance and the Insurable Interest Requirement
[a] “Love and Affection” Test versus Pecuniary Interest Test [b] Statutory Requirements§ 44 Timing: When Must the Insurable Interest Exist?
[a] Property Insurance [b] Life Insurance [c] Liability Insurance§ 45 Waiver and Estoppel: Preventing an Insurer from Denying the Existence of an Insurable Interest
§ 46 Property Insurance and the Insurable Interest Requirement: Some Recurring Issues
[a] Stolen Property [b] Property with a “Negative” Value§ 47 Life Insurance and the Insurable Interest Requirement: Some Recurring Issues
[a] Assigning a Life Insurance Policy to One Lacking an Insurable Interest [b] Standing to Question Insurable Interest [c] Incontestability Clauses [d] Tort Liability for Issuing Policy to One Lacking an Interest in the Insured’s Life and the Role of ConsentChapter 5 · Scope of Obligations: Persons and Interests Protected
§ 50 The Meaning of “Insured”
§ 51 Identifying the Insured (or Payee)
[a] Specific Designations [b] Omnibus Coverage [c] The “Loss Payable” Clause§ 52 The Interests in a Life Insurance Policy
§ 52A Beneficiaries Under Life Insurance Policies
[a] When the Beneficiary’s Rights Vest [b] Naming and Designating the Beneficiary [c] Changing the Beneficiary [d] Competing Claims to Proceeds: Creditors and Beneficiaries [e] Competing Claims to Proceeds: Assignees and Beneficiaries [f] Disqualification of the Beneficiary [g] Community Property Laws [h] The Common Disaster Problem [i] Payment to Wrong Beneficiary§ 52B Assignees
[a] Overview: The Nature of an Assignment [b] Assignment of Right to Receive Benefits or Proceeds [c] Assignment in Property and Liability Insurance [d] Assignment in Life Insurance§ 53 Partial Interests and Property Insurance
§ 53A Mortgages and Conditional Sales
[a] The Standard Mortgage Clause [b] The “Open Mortgage” Clause§ 53B Vendor-Purchaser Transactions
§ 53C Contrasting Mortgages and Real Estate Sales
§ 53D Other Partial Interest Problems
[a] Life Tenant-Remainderman [b] Lessor-Lessee [c] Transactions in Goods [d] BailmentsChapter 6 · Scope of Obligations: The Risks Covered
§ 60 An Overview of Common Coverages
§ 61 All-Risk Versus Specified-Risk Coverage
§ 62 Limitations on Coverage: Generally
§ 62A Explicit Limitation: Duration of Coverage
[a] Commencement of Coverage [b] Termination of Coverage [c] Cancellation of Coverage [d] Reinstatement§ 62B Conditions as Explicit Limitations on Coverage
[a] An Overview [b] Evidentiary Conditions [c] Some Common Conditions and Their Legal Effects§ 63 Intentional Conduct and the Requirement of Fortuity
[a] Overview [b] The Meaning of “Fortuitous Loss” [c] The Nonfortuity Defenses§ 63A Intentional Conduct and Property Insurance
§ 63B Intentional Conduct and Personal Insurance: Life and Accidental Death
[a] Suicide [b] Death While Intentionally Involved in Unlawful Conduct [c] Execution of Insured [d] Accidental Death Benefit: Distinguishing Intentional Acts and Accidents§ 63C Intentional Conduct and Liability Insurance
[a] “Intended” and “Expected” [b] “Intended” Construed [c] Self-Defense [d] Diminished Mental Capacity§ 64 Particular Coverage Issues in Personal Insurance
§ 64A Accidental Death Insurance
[a] Defining “Accident” [b] Limits on the Time Between the Accident and the Death§ 64B Disability Insurance
§ 64C Health Insurance
§ 65 Particular Coverage Issues in Liability Insurance
§ 65A “Occurrence” Versus “Claims-Made” Coverage
§ 65B Liability Coverage Under the Homeowners Form
§ 65C Liability Coverage Under the CGL
[a] Overview [b] The Insuring Agreement [c] The Meaning of Occurrence [d] Triggering Coverage [e] Environmental Liability Coverage§ 65D Number of Occurrences
§ 65E Coverage of Punitive Damages
§ 66 Particular Coverage Issues in Property Insurance: The Friendly Fire Rule
§ 67 Concurrent Causation
PART C
PERFORMING THE CONTRACTUAL OBLIGATIONS
Chapter 7 · The Insured’s Duty to Pay Premiums
§ 70 Nature of the Obligation to Pay Premiums
[a] The Nature of a “Premium” [b] The “Duty” to Pay Premiums [c] Installment Premium Financing§ 71 The Necessity of Paying the Premium
[a] Generally [b] Conclusiveness of Representation in Policy that First Premium Has Been Paid [c] Necessity of Paying Premium Before Loss [d] Mode of Paying Premiums [e] Time for Payment [f] Timeliness of Payment [g] Special Problems Involving Automatic Premium Payment Procedures Through Financial Institutions§ 72 Grace Periods
Chapter 8 · The Mechanics of Claim Presentation
§ 80 Overview
§ 81 Notice of Loss Provisions
[a] Purpose of the Notice of Loss Provision [b] Manner of Giving Notice [c] When Notice is Due [d] Excuses for Noncompliance [e] Effect of Noncompliance§ 82 Proof of Loss
[a] Substantive Requirements in Property Insurance [b] Proving Loss in Life Insurance [c] Effect of Noncompliance§ 83 False Swearing and Examinations Under Oath
§ 84 Disposition of Claims: Alternatives to Litigation
[a] Appraisal in Property Insurance [b] Arbitration§ 85 Limitation of Actions: Timeliness of the Suit Against the Insurer
[a] Statutory versus Contractual Limitations Periods [b] Regulation of Contractual Limitations Periods [c] Measuring the Limitations Period§ 86 No-Action Clauses and Direct Action Statutes
§ 87 The Insured’s Duty to Cooperate with the Insurer
[a] Duties, Conditions, Express and Implied Terms [b] What Constitutes Non-Cooperation [c] When Non-Cooperation Gives the Insurer a Valid DefenseChapter 9 · The Insurer’s Duty to Pay Proceeds
§ 90 Source of the Duty
§ 91 Failure of the Insured to Mitigate the Amount of Loss
§ 92 Measuring the Amount of Loss: Marine Insurance
[a] Total Loss, Partial Loss, and “Average” [b] General Average [c] A General Formula [d] Particular Average [e] The “Memorandum”§ 93 Measuring the Amount of Loss: Property Insurance
[a] The Principle of Indemnity [b] Coinsurance Requirements [c] Valued Policies [d] Replacement Cost Policies [e] “Actual Cash Value” [f] Interest§ 94 Measuring the Amount of Loss: Personal Insurance
§ 95 Measuring the Amount of Loss: Liability Insurance
[a] Generally [b] Interest, Expenses, and Costs [c] Insolvency Clauses and Statutes [d] Immunity of Insureds§ 96 The Insurer’s Right of Subrogation
[a] Overview [b] Equitable, Conventional, and Statutory Subrogation [c] Existence or Nonexistence of Subrogation by Line of Insurance [d] The Requirement that the Insurer Must Have Paid the Debt [e] The Requirement that the Insurer not be a Volunteer [f] Subrogation Against Insured Not Allowed [g] Defenses to Subrogation and the Effect of Releases on Coverage [h] Parties in Interest [i] Loan Receipts§ 97 Other Insurance Clauses
[a] Overview [b] Other Insurance Clauses in Personal Insurance [c] Types of Other Insurance Clauses [d] Conflicts Among Other Insurance Clauses and Other Problems of Enforcement [e] Proration Formulas [f] Some Additional Trouble Spots§ 98 Resolving Disputes on Who Gets the Proceeds: The Interpleader Remedy
§ 99 Remedies for the Insurer’s Breach of the Duty to Pay Proceeds
[a] General Contract Remedies [b] Attorney’s Fees and Penalties [c] Punitive Damages [d] Tort and Extracontractual Remedies [e] Effect of Mistaken Payment by the InsurerChapter 10 · Excuses for the Insurer’s Nonperformance
§ 100 Basic Principles
§ 101 Insured’s Breach of Warranty
[a] Definition [b] Creation of a Warranty [c] Effect of Noncompliance with a Warranty [d] Warranties versus Representations [e] Mitigating Doctrines [f] The Distinction Between Warranties and Coverage Provisions§ 102 Insured’s Misrepresentation
[a] A General Rule [b] Representation versus Warranty [c] The Requirement that the Representation be Untrue or Misleading [d] Materiality [e] Reliance [f] Intent and Its Relation to Materiality and Reliance [g] Agent’s or Broker’s Role in Misrepresentation [h] Misrepresentation of Age in Life Insurance [i] Statutory Regulation [j] The Obligation to Correct Misrepresentations§ 103 Insured’s Concealment
[a] Overview: Distinguishing Misrepresentation from Concealment [b] The General Rule [c] Materiality [d] Intent [e] A Continuing Obligation [f] Justifications for not Disclosing Material Information§ 104 Limitations on the Insurer’s Defenses
§ 104A Waiver and Estoppel
§ 104B Incontestability
[a] Overview [b] Scope of Incontestability Clauses [c] Incontestability and the Defense of Fraud [d] Trouble Spots§ 104C Divisibility or Severability
Chapter 11 · The Additional Duties in Third-Party Insurance
§ 110 The Insured’s Duty to Cooperate and Assist in the Defense
[a] Overview [b] Materiality and Prejudice [c] Burden of Proof [d] Common Instances of Noncooperation [e] Noncooperation and Compulsory Insurance§ 111 The Insurer’s Duty to Defend
[a] Source of the Duty [b] To Whom Is the Duty Owed? [c] The Tests for Whether the Insurer Must Defend a Particular Claim [d] Triggering the Duty to Defend: When Does the Duty Exist? [e] Premature Termination of the Duty to Defend [f] Disclaiming Coverage [g] Standard of Conduct: The Duty of Care [h] Remedies for Breach of the Duty to Defend [i] The Insured’s Duty to Mitigate Damages When the Insurer Breaches the Duty to Defend [j] An Insurer’s “Right” to Reimbursement of Defense Costs [k] “Defense within Limits” Policies§ 112 Settlement Obligations
[a] Insured’s Settlement Without the Insurer’s Consent [b] The Standard for Determining the Nature of the Insurer’s Duty to Settle [c] Source of the Insurer’s Obligation: Tort or Contract? [d] Insurer Conduct Constituting Breach of the Duty to Settle [e] The Mechanics of Handling Settlement Offers [f] Remedies for Breach of the Duty to Settle [g] Effect of Breaching the Duty to Defend on the Duty to Settle [h] A Duty to Mitigate? [i] An Insurer’s “Right” to Reimbursement of Settlement Payments§ 113 The Insurer’s Duty Regarding Appeals
§ 114 Conflicts of Interest
[a] Overview [b] The Basic Alternatives: To Whom Is Loyalty Owed? [c] Managing Conflicting Interests [d] Particular Conflicts and Their ResolutionPART D
SOME REMAINING MATTERS
Chapter 12 · Group Insurance
§ 120 Overview: The Nature of Group Insurance
§ 121 The Tripartite Contract and the Question of Agency
§ 122 Other Group Insurance Issues
[a] The Implications of Multiple Contract Documents [b] The “Actively at Work” Requirement [c] Risk Management Considerations in Group Insurance [d] Termination and Modification of Group Plans [e] Assignments, Changing the Beneficiary, and Standing to Sue§ 123 Legislation Affecting Group Insurance
Chapter 13 · Automobile Insurance
§ 130 Overview
§ 131 The History of Automobile Accident Compensation
§ 132 The Current Landscape for Compensating Automobile Accident Injuries
[a] The Traditional System: Liability Insurance with Supplemental Coverages [b] No-Fault Coverage [c] Possible Future Developments§ 133 The Nature of the Risk Covered
[a] What Constitutes “Use” of a Vehicle [b] “Ownership,” “Maintenance,” and Other Terminology [c] Territorial Restrictions§ 134 Compulsory Liability Insurance and Financial Responsibility Insurance: Some Additional Issues
[a] The Problem of Intentional Conduct [b] Insurer’s Defense against Insured [c] Nonowned Automobile Coverage [d] The Family (or Household) Exclusion§ 135 Uninsured and Underinsured Motorist Insurance
[a] Purpose [b] Nature of Uninsured Motorist Coverage [c] Nature of Underinsured Coverage§ 136 Property Coverage in Automobile Insurance
§ 137 Stacking of Automobile Insurance Benefits
Chapter 14 · Excess Insurance
§ 140 Overview
§ 141 Characterizing Insurance Policies
[a] Primary Insurance [b] Excess Insurance [c] Umbrella Coverage [d] Differentiating Excess and Umbrella Policies§ 142 Primary and Excess Insurance: Some Fundamentals and Differences
[a] Notice of Loss [b] Excess Insurers’ Defense Obligations§ 143 Settlement Obligations and the Duty of Good Faith in Excess Insurance
[a] Overview [b] Excess Insurers’ Implied Duty to Settle Owed to Insureds [c] Excess Insurers’ Bad Faith Claims Against Primary InsurersChapter 15 · Reinsurance
§ 150 Overview
[a] Definition [b] Types of Reinsurance Arrangements and Coverage§ 151 Purposes
§ 152 Legal Issues Involving Reinsurance
[a] Insurable Interest [b] Contract Interpretation [c] Insolvency of the Primary Insurer [d] Reinsurer’s Defenses and the Duty of Utmost Good Faith [e] Rights of Original Insured against Reinsurer [f] “Following the Fortunes”§ 153 Reinsurance Intermediaries
Table of Cases
Index
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