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Contours of the Fortuity Doctrine
All states recognize by statute or common law that first-party property insurance only indemnifies fortuitous losses. See, e.g., N.Y. Ins. L. '1101(a)(1) (defining an 'insurance contract' as 'dependent on the happening of a fortuitous event'); Adams-Arapahoe Joint Sch. Dist. no. 28-J v. Continental Ins. Co., 891 F.2d 772, 774 (10th Cir. 1989). The requirement is at the heart of any insured 'risk' under the insuring agreements in property policies. See Concise Oxford English Dictionary, 11th Ed. (2006) (risk is 'the possibility that something unpleasant will happen'). The courts have not been called upon to interpret the doctrine frequently, but it has evolved with policy wordings to focus increasingly on the knowledge and conduct of the insured.
The origins of all-risk property contracts are in marine insurance, where cargo and hull properties were exposed to multiple risks in transit. In that context and others, the fortuity doctrine addressed both protection against moral hazard and preclusion of indemnity for loss that has happened or is certain to happen. For example, losses caused by defects inherent in the insured property were considered uninsured because they were not fortuitous. See Insurance Co. of N. Am. v. United States Gypsum Co., 678 F. Supp. 138, 142 (W.D. Va. 1988). Where an item of property was already doomed to destruction because of its own inherent qualities, there was no risk to insure. Rather, the loss was certain to occur and not insurable. See Id. at 141.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.