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Reasonableness in Bad Faith Cases: A Question for the Jury?
As the law of insurer bad faith evolves, the question of whether policyholders are entitled to a jury trial of their claims, or parts of their claims, comes increasingly into focus. In cases where the policyholder alleges bad faith in the manner in which a claim is investigated or handled ' so-called “procedural” bad faith ' factual issues for the jury often abound. But when an insurer timely and clearly declines coverage following an adequate investigation, should the “reasonableness” of that declination be submitted to a jury? From both a practical and a policy perspective, the answer in most cases should be no.
Practically speaking, the issues raised by the insurer's declination will often turn on the insurer's analysis of the policy, the controlling law, or optimal negotiation or litigation strategy. The typical bad faith declination case is inherently “litigation about law” that is outside the jury's purview. Even if a jury were allowed to hear evidence of the law, the state of prevailing precedent makes it difficult to imagine laypersons passing upon whether a coverage position meets the legal standard of being “fairly debatable” (or as some jurisdictions describe the standard, having a “reasonable basis”). It is hardly radical to suggest that the scope afforded in the law for fair debate about complex coverage questions is a question for the court.
At the public policy level, the purpose of awarding extra-contractual damages against insurers acting in bad faith ' to deter insurers from breaching their contracts ' is best served by a clearly defined system of disincentives applied predictably as only a court can. To center such a system around a jury removes the predictability and transparency necessary to effective deterrence, and might encourage marginal or meritless bad faith claims.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.