Michael A Barrese

Francisco Marcos

Abstract

Inherent Defects Insurance (“IDI”) for new housing buildings has been mandatory in Spain since 2000, prompting significant growth in the IDI market in the years that followed. Facing increased competition, major insurance carriers active in the property insurance market formed a cartel that also involved IDI reinsurers. This article examines the features of the Spanish IDI cartel as uncovered by the National Competition Commission (“NCC”) in 2009. The companies involved were fined over €120 million—the largest fine ever imposed by Spanish competition authorities. The article describes how the cartel was organized and operated, emphasizing the reinsurers’ key role in ensuring and propagating the effectiveness of the minimum price agreement across the property insurance market. It also critically analyzes the NCC’s assessment of the cartel and evaluates how the Commission addressed the reinsurers’ arguments in defense of their conduct.

Steven Plitt

Vonda Mallicoat Laughlin

Abstract

This article discusses the modern application and jurisprudential background of the “filed rate doctrine,” which courts use to uphold the validity of rates approved by regulatory agencies and to bar claims implicating those rates. The doctrine has enduring relevance in insurance litigation and overrides certain common legal principles. The article examines the doctrine’s broad applicability and provides a comprehensive overview of the many issues affecting its use. It reviews early cases that established the doctrine—predating the U.S. Supreme Court’s oft-cited decision in Keogh v. Chicago & Northwestern Railway Co.—and shows how the doctrine emerged from judicial deference to federal railroad rate regulations enacted by the Interstate Commerce Commission, grounded in legislative intent and concerns about fairness among ratepayers. The doctrine later expanded to other federally regulated industries, including energy and telecommunications. Its applicability to insurance litigation emerged in the mid-1980s. The article highlights recent cases demonstrating how courts have applied the doctrine to the insurance industry and how litigants have attempted to avoid its application. It delves into insurance-specific issues and conflicting authority on applying the doctrine in this context, and it addresses the doctrine’s use in claims for equitable relief as well as its inapplicability to certain claims, such as allegations of regulatory violations. The article further examines its relevance to fraud claims, charges outside basic rates, antitrust claims, discrimination claims, RICO claims, breach of contract claims, and kickback allegations, along with issues of administrative review. It concludes by considering the future of the filed rate doctrine and predicting its continued significance in insurance litigation.

Alexander W. Wang

Abstract

This article examines the hardships faced by Medicare Part D patients—particularly mental health patients—in obtaining coverage for necessary but off-label drug prescriptions. It argues that the current Medicare Part D system is failing not only in its mission to provide quality care but also in its goal of cost-effectiveness. The paper advocates a comprehensive reform approach that would address both deficiencies by allowing case-by-case exceptions to the FDA-approved use requirement when such exceptions are supported by scientific evidence. This type of exception process would enable deserving beneficiaries to obtain the prescriptions they need while also avoiding the heightened costs associated with an abundance of undertreated or mistreated patients.

Kyle Lambrecht

Abstract

This article examines whether Comprehensive General Liability (CGL) insurance policy forms provide coverage for third-party patent infringement claims under the forms’ “advertising injury” provision. It traces the evolution of these forms—from the 1973 CGL standard forms through the 1986 revisions and up to the 1998 and 2001 broad-form versions. The article then discusses three leading cases, all of which hold that insurers have a duty to defend policyholders against third-party patent infringement claims when the alleged infringement involves an advertising technique that is itself patented. In the aftermath of these decisions, however, changes were made to the CGL policy forms that are likely to benefit insurers seeking to avoid coverage and that further the trend toward increasingly limited policyholder protection for third-party patent infringement claims.

Kelly Kirby

Abstract

This article examines the insurance industry’s role as a key player in the international financial system, focusing on how insurers and regulators are working toward greater cooperation and coordination—both domestically and globally—to help ensure that events like the 2008 Financial Crisis are not repeated. It highlights the rise of supervisory colleges and explains the need for states to participate meaningfully in these international forums, which have the potential to identify and mitigate systemic risk. The article details the benefits and challenges of such a broad scheme of international supervision and concludes by arguing that supervisory colleges represent an important step in the right direction for achieving effective international regulatory oversight.

Kendall J. Burr, Thomas F.A. Hetherington, & David T. McDowell

Abstract

This article addresses whether insurable interest requirements—such as those enacted in many states to prohibit Stranger-Originated Life Insurance policies (STOLIs)—should also apply to Stranger-Originated Annuity Transactions (STATs). The article argues that they should, highlighting the inherent similarities between STATs and STOLIs and analyzing the flawed reasoning in the lone case holding that insurable interest requirements do not apply to STATs. The authors then examine various state insurance statutes and contend that many of them may already prohibit STAT contracts. In other words, the statutory framework for criminalizing STAT schemes may already exist, making the key task one for the courts, which must properly interpret and enforce these statutes.

Ronen Avraham

Abstract

This article presents a law and economics perspective on insurance law as a whole, offering both an overview of major topics in the field and a discussion of the central themes in the economic analysis of insurance law and its leading cases. It also introduces a theoretical framework—the two islands functional approach—that can help resolve persistent puzzles in insurance law. Ultimately, this paper aims to assist insurance law judges, lawyers, students, and legislatures in correctly conceptualizing and addressing the legal problems that arise in courts and in insurance practice.

Robert H. Jerry, II

Abstract

In this article, Robert Jerry expounds on Professor Abraham’s article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself. Jerry focuses on Abraham’s depiction of the “specialness” and “distinctiveness” of insurance, while exploring additional instances of “rotten to the core” systemic bad faith dating as far back as the nineteenth-century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance industry, due to its “specialness,” is held to higher standards of care than other realms of “ordinary business.”