Andrea Gomes

Abstract

“No matter how the business of war is adorned by parades, uniforms, and literary glorification of the warrior’s courage, and however it is burdened by administration and logistics, the soldier’s real work is in killing. The soldier’s privilege to kill is unlike anything most other individuals have ever experienced, and the soldier who kills is permanently changed, fixed to the death he has made.” From its first remnants in Ancient Greece, through the initial wave of “shell shocked” American soldiers in World War I, and into its present-day status amid ongoing conflicts in the Middle East, Post-Traumatic Stress Disorder (PTSD) has continued to evolve in both its treatments and the societal stigma attached to it. This comment traces the development of PTSD within the context of our nation’s health care treatment and coverage for veterans battling the disorder. It documents recent federal legislation which, combined with the ongoing efforts of the Department of Veterans Affairs (DVA), should allow for significant improvements in the treatment and coverage of veterans with PTSD. However, despite the government’s apparent acknowledgment of the importance of addressing PTSD, many veterans remain without adequate coverage for their mental health care. With troops still returning home from Afghanistan and others just beginning to experience the first signs of PTSD, the Department of Veterans Affairs must strive for even greater health care coverage for its veterans.

Jennifer B. Wriggins

Abstract

Now that the Affordable Care Act (ACA) individual health insurance mandate has been upheld by the United States Supreme Court, it is an opportune time to examine precedents for the individual mandate that were not considered in the legislative debate or litigation about the ACA’s constitutionality, particularly auto insurance mandates. Although opponents’ arguments were cast largely as Commerce Clause claims, the arguments have a deeper foundation in concerns about liberty and coercion that go far beyond the Commerce Clause. Although auto insurance mandates are different—especially because they are state rather than federal requirements—they help illuminate what Congress was doing, and why, when it enacted the ACA reforms and the individual mandate. Auto insurance mandates are relevant because they are a ubiquitous example of risk-spreading through a combination of private markets and public regulation, the same broad approach taken by the ACA mandate. This article shows that auto insurance mandates are an important precedent for the ACA individual mandate and share four significant parallels with it: both arose in challenging situations where compelling reasons existed for mandates; both require people to insure themselves against risks they might otherwise choose to bear; both require risks to be transferred and spread, an essential feature of insurance; and both require people to buy something from a private seller. These mandates represent similar policy responses to public dilemmas involving physical harm or illness and how to finance needed redress or treatment. The article then addresses the argument that auto insurance mandates are fundamentally different because driving is a choice, whereas the ACA mandate regulates mere existence. This argument is specious for at least three reasons: driving is not always a choice; the Supreme Court’s decision shows that the ACA mandate does create a choice; and auto insurance mandates are, in fact, more coercive than the ACA individual mandate. Finally, the article highlights the history of auto insurance mandates, noting that opponents fought such mandates for six decades using rhetoric about freedom and American values—much like ACA opponents do today. Constitutional doubts were repeatedly resolved in favor of mandates, particularly given the public welfare aspects of insurance. Over time, “freedom” arguments faded, and auto insurance mandates have become a workable, widely accepted, distinctly American method of dealing with risk.

Jay M. Feinman

Abstract

This article discusses the contexts in which disputes arise over the execution of liability releases by property holders in the course of settling property loss claims. It analyzes two conflicting interpretations of these disputes, each yielding markedly different results. The article explains the nature of this conflict—rooted in principles of contract law and insurance law—before outlining the arguments favoring full indemnification for the claimant and the counterarguments for insurers seeking to avoid additional liability. In other words, the public policy interest in the full payment of insurance claims is pitted against the insurer’s interest in the final resolution of disputes. The article concludes by siding with the claimant, arguing that most releases, even if deemed enforceable, encourage improper claims practices and therefore should be held unenforceable as a matter of public policy.

William T.J. de la Mare

Abstract

This article focuses on how climate change has, and will continue to, alter the insurance industry. It explores the impact of climate change on insurers’ ability to predict losses accurately and considers how actors who contribute to climate change should be held accountable. In addressing these questions, the article examines the laws and regulatory systems relating to insurance and environmental protection in the United States, the European Union, China, and the Middle East, concluding that many existing frameworks are inadequate. The article calls for the development of a comprehensive legal structure to address climate change risk and warns that without such a framework, the insurance industry may be unable to cope with catastrophic losses associated with climate-related risks.

Rex Heinke & Warren J. Biro

Abstract

This article discusses whether commercial liability insurers have a duty to provide coverage to policyholders who are sued because their activities contribute to global warming. It focuses on a decision by the Virginia Supreme Court in AES Corp. v. Steadfast Insurance Co., in which the plaintiff insurer argued that emitting carbon dioxide into the atmosphere was not an “occurrence” as defined in the insurance policy and therefore did not trigger coverage. The Virginia Supreme Court agreed, holding that the insurer was not required to provide coverage for any period in which the policyholder knew, or should have known, that the emission of carbon dioxide had a substantial probability of causing harm.

John H. Fitzpatrick

Michael B. Gerrard & Joseph A. MacDougald

Abstract

This article discusses the advancement of climate change litigation and explores two approaches: using the federal regulatory apparatus and using the tort system. It examines key questions in climate change litigation, including who is responsible for determining the appropriate level of harmful emissions, how courts should handle the long-tail effects of climate change, what the proper forums for litigation are, and what role the federal government should play in addressing climate-related harms.

Christian Armbruester

Abstract

This article discusses the newly drafted “Principles of European Insurance Contract Law” (PEICL). It explores the possibility of the PEICL becoming an optional legal instrument that parties to an insurance contract may use as an alternative to relying on the laws of the various Member States in the European Union. The article provides an in-depth investigation of the PEICL and concludes that while the draft language could benefit from certain adjustments, it nonetheless offers a strong basis for discussion among policymakers in both the European Union and the United States.

James M. Fischer

Abstract

This article explores the uncertainty surrounding an insured’s duty to mitigate losses after an insurer has breached its contract. It examines the arguments for and against imposing a mitigation requirement and concludes that insureds seeking damages for an insurer’s breach of a contractual obligation should be required to mitigate their losses regardless of the type of insurance policy at issue. The article argues that an insured’s failure to act reasonably post-breach should result in the insured bearing responsibility for losses that could have been avoided.

Johnny Parker

Abstract

This article explores the inconsistency with which courts interpret severability of interest clauses in insurance policy exclusions. It examines severability of interest clauses and discusses the rules courts use to interpret them. Specifically, the article outlines three methodologies of contract interpretation that courts employ when faced with severability-of-interest clause controversies and evaluates each method’s strengths and weaknesses. The article concludes that behind these different interpretive methods lie two schools of thought among the courts: those that follow a “traditional or formalist” approach and those that follow a “functional or reasonable expectations” approach.