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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.
As insured perils broadened under developing all-risk contract wordings, specific exclusions were added for loss involving inherent vice, later defect, design defect, faulty workmanship and materials, wear and tear, and other concepts overlapping with fortuity. During this evolution, a number of court decisions discussed fortuity more frequently as moral hazard and looked to the awareness of the insured about the loss circumstances. Thus, if the loss was caused by an 'inherent defect unknown to the insured,' the loss may be considered fortuitous. Id. at 142.
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 Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?