When I was taking constitutional law in law school, I had a professor who liked to say that what standard of review the Supreme Court applied to certain types of issues depended on whether or not the justices wanted to uphold or instead overturn the statute before them; a more cursory level of review guaranteed
Rules of Policy Interpretation
The Eleventh Most Important Insurance Coverage Decision of 2006
By Stephen Rosenberg on
Posted in Duty to Indemnify, Rules of Policy Interpretation
End of the year lists, to alter an old off color joke, are like opinions: everyone, it seems this time of year, has one. Some are superficial, silly and cursory, like this one here, and others, like Randy Maniloff’s list discussed in my last post, are substantive. For those of you who couldn’t get…
Viruses, Asbestos and Exclusions
By Stephen Rosenberg on
Posted in Exclusions, Rules of Policy Interpretation
I am fascinated by this new exclusion that is being drafted and for which approval is being sought, which seeks to exclude claims arising from viruses – not the computer kind, but things like avian flu. I understand the intent, but for any of you who, like I, have been at the insurance coverage business…
Contract Law and Insurance Coverage
Although we treat insurance coverage cases as contract disputes, I am not altogether convinced that the law of contracts really is the animating principle behind insurance coverage decisions. Certainly, at the very least, one can’t take a gander at a standard contracts hornbook (that is lawyer talk for a book that provides a readers digest…
Insurance Policy Interpretation and ERISA Conflict of Interests
By Stephen Rosenberg on
Posted in Defense Costs, Rules of Policy Interpretation
Insurance coverage could learn a bit from the law of ERISA, particularly from the concept of structural conflicts of interest that is so much in play in ERISA litigation at the moment. In the world of insurance coverage litigation, insurers almost invariably stand in exactly the position that ERISA decisions view as a structural conflict:…
Interpreting ERISA Plans and Insurance Policies
ERISA on the web generally does a nice job of chronicling ERISA decisions out of the Eleventh Circuit, but one of its recent posts, about an August 8th decision by the United States Court of Appeals for the Eleventh Circuit, jumped out at me more than most. The post discusses the case of Billings …
A Fine Piece of Insurance Policy Analysis
By Stephen Rosenberg on
I turn today from my recent obsession with ERISA preemption and the Wal-Mart case to other arguably unhealthy obsessions, including insurance coverage decisions, contract interpretation and the fine art of drawing a good judge. On Monday, the Massachusetts Appeals Court issued its opinion in American Commercial Finance Corp. v. Seneca Insurance Co.,in which the…
Pollution Exclusions and the Reasonable Expectations Doctrine
There is an interesting decision out of the Massachusetts Supreme Judicial Court concerning the application of a policy endorsement and its mirror image exclusion to coverage of an oil leak from an oil delivery truck. The spill occurred while the truck was parked overnight, in between two separate days of delivering oil. The Supreme Judicial…