Just a quick follow up note on an earlier post. It looks like Medicare Part D is having the effect on drug company profits, and on taxpayers’ wallets, that was predicted and was discussed here. The New York Times has the confirmation here.
Preemption and the Fair Share Act – Some More Thoughts
I was thinking a bit more over the weekend about Retail Industry Leaders Association v. Fielder (and, yes, I know I obviously need a hobby), and Judge Motz’ determination that the Fair Share Act is preempted by ERISA. Although the court’s opinion makes it sound straight forward, the truth is that the outer boundaries
ERISA and the Defense of Marriage Act?
I could not let this go by without commenting on it, coming as it does on the heels of multiple posts on the question of whether to arbitrate coverage disputes. This story, arbitration award and federal lawsuit take the subject a full step – at least – further, into the realm of ERISA and
Business Risk Exclusions
Before it falls off the edge of my desk in the crush of next week’s business, I wanted to pass along an excellent post from David Rossmiller at the insurance coverage law blog on business risk exclusions. I think anyone who has either litigated or counseled parties on claims involving business risk exclusions will recognize
Wal-Mart, Maryland and the Fair Share Act
The United States District Court for the District of Maryland issued its opinion yesterday on the legal challenge to the Fair Share Act, the Maryland statute recently enacted for the purpose of forcing Wal-Mart, and only Wal-Mart, to increase its health care spending for its employees. Major media accounts of the ruling are here,
More on Arbitration
Apparently I am not the only one with concerns about the arbitration process, which I discussed in a recent post. As this article notes, both the Eleventh Circuit and the Georgia state courts are displaying an overt hostility towards parties who challenge arbitration decisions in court, after the arbitration has concluded. What is unclear
Part D, Medicare and Economic Distortions
The New York Times provides an excellent report today on the impact of Medicare Part D and the unintended – maybe(?) – result of moving millions of lower income patients from Medicaid to Medicare. The article points out that drug company profits will increase significantly because the patients are moved from Medicaid, which has certain
More on Termination of Retirement Benefits
Updating my post the other day concerning the ramifications, under ERISA and otherwise, of retiree medical benefits and attempts to terminate them, a recent post in BenefitsBlog documents why, for those of us still working today, it may well be a non-issue. Citing a report from Watson Wyatt, BenefitsBlog notes that future retirees will
Coverage Arbitration Pros and Cons
As soon as I read the article Arbitration’s Fall From Grace in GC South, I knew I needed to pass it along to others. Insurance policies are often written with arbitration clauses that require coverage disputes between the insured and the insurer to be arbitrated. In seminars I have given, I often discuss the pros
Economic and Behavioral Distortions, and How Insurance and ERISA Law Cope With Them
One of the problems that insurers, and insurance law, have to confront is the distortion in behavior, economic and otherwise, that insurance can create. Insurance coverage law deals with this problem in a number of ways, such as by means of the known loss doctrine, which – although the specifics of its application vary from jurisdiction to jurisdiction – essentially holds that a person cannot insure against an expected, existing or highly probable loss. As such, it prevents an insured company or individual from insuring against something the company or the person intends to do and knows is likely to cause harm. One can think of the known loss doctrine in this context as protecting against people undertaking harmful activities that they would not otherwise have done if they did not think they could insure themselves against the consequences.
We can also understand the various treatments given by the courts of different states to the question of whether a punitive damages award against an insured is insurable as being part of the same thought process. . . .Continue Reading Economic and Behavioral Distortions, and How Insurance and ERISA Law Cope With Them