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Principles of Insurance Law Jeffrey W. Stempel Digital
Instant Download
Author(s): Jeffrey W. Stempel; Peter N. Swisher; Erik S. Knutsen
ISBN(s): 9781422476864, 1422476863
Edition: Hardcover
File Details: PDF, 19.04 MB
Year: 2012
Language: english
PRINCIPLES OF
INSURANCE LAW
2
LexisNexis Law School Publishing
Advisory Board
William Araiza
Professor of Law
Brooklyn Law School
Lenni B. Benson
Professor of Law & Associate Dean for Professional Development
New York Law School
Raj Bhala
Rice Distinguished Professor
University of Kansas, School of Law
Ruth Colker
Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional
Law
Ohio State University, Moritz College of Law
David Gamage
Assistant Professor of Law
UC Berkeley School of Law
Joan Heminway
College of Law Distinguished Professor of Law
University of Tennessee College of Law
Edward Imwinkelried
Edward L. Barrett, Jr. Professor of Law
UC Davis School of Law
David I. C. Thomson
LP Professor & Director, Lawyering Process Program
University of Denver, Sturm College of Law
Melissa Weresh
Director of Legal Writing and Professor of Law
Drake University Law School
3
[i/ii]
4
PRINCIPLES OF
INSURANCE LAW
FOURTH EDITION
JEFFREY W. STEMPEL
Doris S. & Theodore B. Lee Professor of Law
William S. Boyd School of Law
University of Nevada, Las Vegas
PETER N. SWISHER
Professor of Law
T.C. Williams School of Law
University of Richmond
ERIK S. KNUTSEN
Associate Professor
Queen’s University Faculty of Law
Kingston, Ontario, Canada
5
[ii/iii]
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7
[iii/iv]
Dedications
For Wenjue
8
[v/vi]
Preface
At the same time, we have retained the progressive and cumulative sequence of the
previous editions:
• Introductory material;
• applying, questioning, and testing these principles in relevant Notes, Questions, and
Problems.
The “Notes and Questions” sections have been expanded and updated, usually
containing one or more Problems, allowing insurance law students to apply their
cumulative knowledge of insurance law topics to “real life” situations and legal disputes,
and to make the type of difficult decisions with which a practicing attorney or judge would
be faced.
Like the Third Edition, the Fourth Edition contains comprehensive introductory and
orientation material. In particular, basic axioms of contract construction and insurance
policy interpretation are discussed in greater detail (Chapter 2) to assist in orienting
students to the case material (no matter how much the student may have daydreamed
during first-year Contracts). In addition, history of insurance is examined in detail, as are
9
the underlying concepts and theory of insurance (Chapter 1). As compared to earlier
editions, considerably more attention is given to the definition of insurance and concepts of
risk shifting, risk distribution, and risk management.
Materials concerning state and federal regulation of insurance are moved to an earlier
section of the casebook (Chapter 3). Instructors may, of course, present casebook material
in whatever order best fits the pedagogy of their own respective classes. We also realize that
many instructors, particularly in a two-credit insurance course, will minimize coverage of
insurance regulation.
The Fourth Edition of Principles of Insurance Law retains broad coverage of life and
[vi/vii]health insurance, property insurance, and liability insurance issues. In order to make
the casebook both more comprehensive and more accessible, the division of Chapters is
organized more according to types of insurance products: property insurance (Chapter 10),
liability insurance (Chapter 11), life and health insurance (Chapter 12), and automobile
insurance (Chapter 13), as well as reinsurance and excess insurance (Chapter 15).
The casebook also provides a separate chapter on insurance bad faith (Chapter 14), with
extensive treatment of the issue. Chapter 9, which discusses the duties of insurer and
policyholder after loss, also gives considerable attention to problems that can arise for
policyholder, insurer, and counsel in their “tripartite relationship” during litigation or
claims adjustment.
The new edition further includes new and expanded treatment of important insurance
law developments that have taken place since the prior edition:
• New caselaw about property insurance and recent mass disasters (i.e. Hurricane
Katrina, valued policy laws);
• new cases highlight the problems of the innocent co-insured in property insurance
contexts;
• new material about business interruption insurance (as played out in the aftermath
of the 9/11 World Trade Center disaster);
10
• a re-organization of Chapter 8 (causation and accident) with updated cases;
The casebook also provides more extensive treatment than most coursebooks regarding:
• the continuing debate between “legal formalists” and “legal functionalists” for “the
heart and soul of insurance contract law”;
• the Court’s State Farm v. Campbell decision, which struck down a $145 million
punitive damages award in an insurance bad faith claim as well as setting more restrictive
parameters for the recovery of punitive damages generally;
• new issues over the dividing line between “tangible” property typically covered under
a property insurance policy and “intangible” property, which is typically excluded — an
issue of increasing importance in the digital and cyber age;
[vii/viii]
• the difficult-to-harmonize decisions concerning when a loss arises out of the “use” of
11
an automobile;
• insurer bad faith and the availability, if any, of actions against a policyholder for
“reverse bad faith”; and
• the degree to which excess insurance and reinsurance may be subject to modified
approaches to insurance policy construction.
The Fourth Edition includes a new co-author, Professor Erik S. Knutsen, of Queen’s
University Faculty of Law in Kingston, Ontario, Canada.
The authors gratefully appreciate and acknowledge the research assistance of the students
who helped make Principles of Insurance Law a reality. Hilary Barrett Muckelroy (UNLV
— Class of 2005) deserves special thanks for her excellent work as primary research
assistant for the Third Edition. Thanks also to Mary Langsner (UNLV — Class of 2013),
(Michael Newby, CPCU (Richmond — 2004), Kathleen Wilde (UNLV — Class of 2011),
Shannon Gallo (UNLV — Class of 2010), Angela Morrison (UNLV — Class of 2005),
Tabitha Fiddyment (UNLV — Class of 2003), Erin Spicer (Queen’s — Class of 2012),
and Jonathan Chen (Queen’s – Class of 2012).
Thanks also to our long-suffering families and to our respective colleagues at Richmond,
UNLV, and Queen’s, all of whom are probably more than a bit puzzled at our constant
fascination with insurance — an interest we hope students will grow to appreciate as they
read the materials in this casebook. Special thanks to UNLV Wiener-Rogers Law Library
Director Jeanne Price and Assistant Director David McClure.
Insurance is often regarded as a topic that induces a feeling of “stirring cement with my
eyelids” (to use Oliver Wendell Holmes’s memorable description of first-year law school),
even as compared to other parts of the law school curriculum. We beg to differ. Insurance
involves many of the most intellectually interesting issues in modern law as well as topics
central to modern human existence: life; death; greed; money; property; business; cars;
homes; family; lawsuits; deals made and broken; steadfastness; and sharp dealing. It’s all
there in insurance law. We hope we have captured some significant part of this rich picture
in Principles of Insurance Law.
Jeffrey W. Stempel
Peter N. Swisher
Erik S. Knutsen
12
June 2011
13
[ix/x]
Table of Contents
§ 1.01. INTRODUCTION
Note: “Megarisks”
14
[3] Loss-in-Progress
[x/xi]
15
§ 2.07. ATTITUDES TOWARD EXTRINSIC EVIDENCE
[B] Text versus Context and Expectation; Formalism and Functionalism: The Battle
Continues — Sometimes Within the Same Jurisdiction
16
§ 2.14. REFORMATION OF THE INSURANCE CONTRACT
[A] Introduction
[A] Introduction
[xi/xii]
[A] Introduction
[A] Introduction
17
[A] Power to License Insurance Companies, Agents, and Brokers
Question
[G] Intersection Between Civil Rights Statutes and Insurance: The Americans with
Disabilities Act
[xii/xiii]
18
[4] Uninsured Motorist Laws and No-Fault Laws Compared
§ 4.01. INTRODUCTION
19
§ 4.03. INSURANCE BINDERS AND CONDITIONAL RECEIPTS
[A] Introduction
[B] Binders
SR International Business Insurance Co. Ltd. v. World Trade Center Properties, LLC et
al.
Murphy v. Kuhn
Harris v. Albrecht
[xiii/xiv]
20
Notes and Questions
[1] Introduction
[A] Introduction
Questions
21
Pilkington North America, Inc. v. Travelers Casualty & Surety Company
[A] Introduction
[xiv/xv]
Problems
Problem
22
[E] Extinguishment of Insurable Interest
Chicago Title & Trust Co. v. United States Fidelity & Guaranty Co.
[E] A Variant of the Insurable Interest Problem: Assignment of the Life Insurance Policy
Grigsby v. Russell
23
Chapter 6 INSURER’S LIMITATION OF RISK: WARRANTIES,
REPRESENTATIONS, AND CONCEALMENT
§ 6.01. WARRANTIES
24
[1] Increase in Hazard Clauses
§ 6.02. REPRESENTATIONS
[xvi/xvii]
25
[2] Continuing Duty of Full Disclosure During the Pendency of the Application
§ 6.03. CONCEALMENT
26
Notes and Questions
[G] Election
[H] Reformation
[xvii/xviii]
27
§ 8.02. ACCIDENTAL MEANS VERSUS ACCIDENTAL RESULTS
Molyneaux v. Molyneaux
28
Notes and Questions
American Guarantee and Liability Insurance Co. v. Chandler Manufacturing Co., Inc.
[xviii/xix]
[1] The Standard for Determining the Existence of a Duty to Defend: The Four
Corners/Eight Corners Rule and the Role of Extrinsic Evidence
Notes
29
[4] The Role of Insurer-Appointed Defense Counsel and the Relative Rights of
Insurer and Policyholder
Miller v. Shugart
[D] The Duty to Settle Claims and the Effect of Failure to Settle
[xix/xx]
Starkman v. Sigmond
30
[4] Bailor-Bailee Situations
Morris v. Morris
Note
31
[C] Theft and Mysterious Disappearance
32
Notes and Questions
§ 10.04. COINSURANCE
§ 10.05. SUBROGATION
33
Chapter 11 LIABILITY INSURANCE ISSUES
[xxi/xxii]
Note
34
General Housewares Corp. v. National Surety Corporation
Singsaas v. Diederich
35
[xxii/xxiii]
Goodyear Tire & Rubber Company v. Aetna Casualty & Surety Company
Notes
36
[B] Professional Liability
[F] Suretyship
[xxiii/xxiv]
§ 12.01. INTRODUCTION
Amex Life Assurance Company v. The Superior Court of Los Angeles County
Eschler v. Eschler
37
[D] Effect of Payment to Wrong Beneficiary
Diep v. Rivas
Notes
Note
38
Blue Cross and Blue Shield of Kansas, Incorporated v. Riverside Hospital, An Osteopathic
Institution
[xxiv/xxv]
§ 13.01. INTRODUCTION
39
[D] Loss “Arising Out of Ownership, Maintenance, or Use” of a Vehicle
[xxv/xxvi]
40
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