Case Briefs
February 28, 2007
Highlights of the latest insurance cases from around the country.
Class Action Claims: The Duty to Defend Before a Class with Covered Claimants Is Certified
February 28, 2007
A liability insurer's promise to defend its insured is at the core of the protection purchased by policyholders and, in most states, the insurer will be required to defend any suit alleging facts that possibly could result in a judgment against the insured that would be covered by the policy's duty to indemnify. A duty to defend will be found where the undisputed facts surrounding a claim — typically the language of the policy and the allegations of the complaint — permit proof of a claim potentially covered by the duty to indemnify. The complaint-allegations test, or what some jurisdictions term the eight-corners rule, results in the duty to defend being easily found by courts, commensurate with the broad contract language, and the policy's intention to afford the insured 'litigation insurance' protecting against the risk and burden of litigation.
'Posttermination Contract'
February 28, 2007
Reversing established precedent, a Fourth Department panel has ruled that when a parent is deemed unable to care for a child due to the parent's mental illness or retardation, the Family Court may determine whether 'some form of posttermination contact' is nonetheless in the child's best interests.
PA Court Refuses to Expand Scope of Third-Party Bad Faith Liability
February 28, 2007
Traditionally, courts have found bad faith in two contexts — when an insurer wrongfully denies coverage in a first-party claim and when an insurer's improper refusal to settle a third-party claim results in an excess verdict against the insured. Courts have recognized bad faith causes of action under these circumstances in light of the type of policy involved and the nature of the insured's interests that are at stake.
It's Time for a Joint Custody Presumption
February 28, 2007
New York State is a 'best interest' custody state that gives the courts a wide latitude to choose a parenting custody plan that is in the best interest of the children and family. DRL ' 240 specifically states: 'The court shall ' enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interest of the child.' The standard is well ensconced in cased law as well. How does this concept mesh with the Court of Appeals' decision in <i>Braiman v. Braiman</i>, which stated that courts should not impose joint custody arrangements on parents who are 'severely antagonistic and embattled' and who are unable to put aside their differences for the benefit of the children?
Illegal Alien Status: Eligibility Requirements and Non-Coverage for Fraud Provisions Still Apply
February 28, 2007
A significant body of case law holds that illegal aliens are not precluded, by virtue of their illegal status, from recovering insurance benefits. While that may be the law, and we do not mean to suggest otherwise, one's illegal status may not confer upon an insured or claimant greater rights than those enjoyed by someone who is in the United States legally. A legal insured may not make material misrepresentations in an application for insurance. A legal insured may also be required to satisfy certain eligibility requirements as a prerequisite to coverage. It could not have been anyone's intention that illegal alien status would be used as a free pass, effectively negating eligibility requirements and the insurers' right to void policies where an applicant misrepresents or conceals a material fact.
Litigation Conduct: Removing the 'Bad Faith' Trap
February 28, 2007
Pure self-interest seemingly motivates parties in the adversarial system; but insurance presents a twist on that common understanding when it comes to litigation over coverage. That is because courts have held that a coverage action does not terminate certain obligations existing between an insured and its insurer ' even with respect to the particular claim at issue in the coverage dispute. With increasing frequency, aggressive attorneys representing policyholders argue that, despite traditional common law or statutory litigation and settlement privileges and protections, an insurer's conduct during a coverage lawsuit should be scrutinized with the aim of identifying evidence of 'bad faith' that can be used against the insurer.
The Insurance Industry Takes Another Swing at Efficient Dispute Resolution
February 28, 2007
The widespread use of arbitration in insurance and reinsurance disputes was intended to allow parties to resolve complex disputes quickly and efficiently by having persons with knowledge of the specialized terminology, standards, and practices of the insurance industry act as decision makers. This aspiration has been superseded by protracted and voluminous discovery, continual delays and postponements, extensive briefing, and lengthy hearings. In essence, all of the foibles of litigation have crept into the world of arbitration, leaving the insurance industry once again in search of an efficient method to resolve disputes.
New FTC Rule Revises Disclosure Procedures
February 28, 2007
The recently released final FTC Rule ('New Rule') on franchising is notable not only for the revised disclosure requirements in Items 1 through 23, but also for the changes it makes to the franchise disclosure process.
Earnings Claims and the Amended FTC Disclosure Rule: Lamenting a Lost Opportunity
February 28, 2007
Let's not be overly critical of the Amended FTC Disclosure Rule, which was promulgated in January 2007 after being 10 years in the development stage. As Stephen Toporoff of the Federal Trade Commission ('FTC') has convinced me in recent discussions, amending a federal regulation is an arduous task. In this instance, it required an extensive amount of background research on the history of the original Disclosure Rule, several hearings, careful review of the hundreds of comments, careful examination of the UFOC Guidelines and their origins and assumptions, comparing them with the original Disclosure Rule's format, and testing in many cases the care and thought that went behind the original language of the UFOC Guidelines. The Amended Disclosure Rule was no shot from the hip. In light of this background information, and considering simply the politics of federal agencies, it is not very surprising that it took a decade for the FTC to issue the Amended Disclosure Rule.
