Negotiation, Power in Conciliation, and Review of Compensation Claims

Workers Compensation claims are not interpersonal disputes. Almost always they are disputes between individuals and corporations. Compensation insurers are "repeat players" in the system. Workers are often "one–shotters" who have little or infrequent contact with the system. Power inequality between the worker, employer, insurer, and those who are required to facilitate negotiations and resolve and settle disputes under compensation legislation are matters of considerable importance. This paper examines the effects of the implementation, in 1993, of informal dispute resolution processes in the Western Australian workers compensation system under the Workers Compensation and Rehabilitation Act 1981(WA), which excluded lawyers from the process. It argues that preexisting power imbalances have been aggravated by these procedural changes, and in particular, by the exclusion of legal practitioners from the dispute resolution process. The issues raised herein have general application to most workers compensation systems.     

Holes in the Whole: Considerations on the Made Whole Doctrine and Its Applicability to Environmental Claims

Nearly all states recognize the principle of the made whole rule which mandates that an insured be fully compensated for its loss before its insurer is reimbursed for its payouts. Some states apply the rule to an insured's overall loss, while others engage in an element-by-element examination of damages and allow an insurer to seek reimbursement once the insured has recovered its insured losses. States also take varying approaches on whether, and in what circumstances, insurers can expand their subrogation-like rights by contract. This article sets out a brief history of equitable and legal subrogation and the made whole rule; discusses various applications of the rule and related equitable issues, such as the allocation of attorneys fees for third-party recoveries that benefit both insured and insurer; and offers practice tips for insureds and counsel facing environmental claims.     

Types and Causes of lawyers' Professional Liability Claims: The Search for Facts

Lawyers have become concerned about the rising numbers and the rising amounts of professional liability claims, which have in turn driven up liability insurance premiums and temporarily even caused an alarming contraction in the supply of insurance coverage. This article examines the state of factual information that could be used to measure and explain the development. It goes on to discuss the potential role that increased knowledge of the types and causes of professional liability claims could play in efforts to reverse the development, followed by a discussion of the difficulties of obtaining usable data from the two principal potential sources—lawyers and their insurers. The second half of the article describes and evaluates the work of the American Bar Association's Special Committee on Lawyers' Professional Liability in developing, in cooperation with the major insurers, a comprehensive data collection and reporting system for lawyers' professional liability claims.     

Insurers, Claims and the Boundaries of Good Faith

This article examines the refusal of the English courts to award damages for consequential losses following unreasonable delay on the part of insurers in settling a claim. This has the potential to give rise to dire consequences for insureds. These difficulties have been addressed in North American jurisdictions where the concept of good faith has been developed and applied as a means of both compensating insureds and regulating the conduct of insurers. However, a hallmark of English law is that it fails to draw a bright line between the law of contract and the law of contracts. As a result, the policy issues that should inform insurance contracts are excluded by virtue of the notion, imported from the law of contract, that the contractual relationship is a matter of private law and is not, therefore, a means for public regulation of insurers.     

Administrative "health courts" for medical injury claims: the federal constitutional issues

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals to replace traditional medical malpractice litigation in state courts with a federal system of administrative "health courts." In doing so, we address the following constitutional issues: 1. Is there federal authority to preempt state law (the commerce clause and spending clause issues)? 2. May jurisdiction be created in non-article 3 tribunals, and may claims be decided without trial by jury (the separation of powers and Seventh Amendment issues)? 3. Would pilot programs that require some claims to be pursued in a federal administrative forum while other claimants are left to pursue traditional state tort law remedies be constitutional (the equal protection issue)? The article concludes that a federal compensation system through administrative health courts should be constitutional provided the statute is appropriately drafted and that appropriate factual findings are made concerning the benefits to patients and the public as well as to doctors and their insurers.     

Litigation and the medical indemnity crisis

The medical indemnity crisis in Australia forced doctors, lawyers and insurers to re-appraise the way they handle claims for compensation for medical error. This article examines some of the new approaches available in Australia when patients claim compensation from their doctors.     

Damages for Mental Distress and Bad Faith in Disability Claims

This article examines recent changes in the law in Canada in relation to the court’s willingness to acknowledge the significance of, and award compensation for, intangible loss arising from breach of contract. When a claim for benefits is wrongly refused in a disability contract, a primary goal of the contract, which is to provide peace of mind, is unrealized. Where this causes mental distress, Canadian courts are now willing to award compensation. Similarly, if an insurer conducts itself in such a manner as to attract a punitive damages award, a consideration in assessing the quantum of the award is the vulnerability of the insured. The evidentiary basis for these claims will often include expert psychological opinion. Various considerations for determining the existence, nature, and scope of the psychological issues relevant to a claim for damages for mental distress and/or punitive damages are covered in this article.     

The Historical Context of Small Claims Courts

The conception of simple, informal, lawyerless courts where ordinary people can settle their affairs amicably without expense, delay, technicality, or contentiousness has fascinated Americans since colonial times. This theme can be seen running through the movements to codify the law, simplify legal procedure, open the practice of law to Everyman, create conciliation courts; the creation of the small claims courts and administrative tribunals; and attempts in the 1960s and 1970s to divert small matters out of the courts altogether and into Neighborhood Justice Centers and other informal dispute resolution mechanisms. The long and complex history of reform has been characterized by cyclical shifts in emphasis between two principal modes of characterizing small claims. One mode characterizes small claims as petty private quarrels and has led to attempts to supply justice by aiding fair outcomes between the particular parties. Since no broader social impact of the dispute is seen, the most efficient possible individual level response is viewed as appropriate. The other mode perceives small claims as particular instances of important systematic injustices between social groups or classes and has led to attempts to use small claims processing as the forum for making important policy. Perceiving broad social impact of the resolution of small claims, one will see a mobilization of aggregate resources to deal with them as important social problems as appropriate. As a result, entire classes of cases and issues may be skimmed off and dealt with collectively as important social-legal problems. When this occurs the perception of the small claims that remain shifts to the other mode, and they are viewed as less important residual petty quarrels meriting less attention and resources. This periodic skimming off of certain claims and waning of collective attention to the remaining mass of claims has introduced a cyclical element into the development of small claims courts (and other legal reforms). Thus the mode of preceiving small claims itself conditions the mode of legal response which is advocated.     

侵权债权在破产程序中的优先受偿顺位建构——基于“给最少受惠者最大利益”的考量

破产法的公平理念以及侵权债权的非自愿属性,决定侵权债权具有从现行破产法所规定的普通破产债权中分立出来,并优先于一般交易债权受偿的正当性。基于侵权债权类型化以及罗尔斯的公平的正义理念——给最少受惠者最大利益,侵权债权在区分人身侵权债权和财产侵权债权的基础上,应做以下受偿顺位安排:破产费用和公益债务之外,人身侵权债权——工资债权和社会保险费用——劳动补偿金债权——财产侵权债权——国家税收——一般交易债权。人身侵权债权甚至有可能优先于担保债权,如果担保债权的设立发生于人身侵权债权产生之后。社会强制责任保险费用债权视其保障范围可以先于人身侵权债权或财产侵权债权。     

The current status of medical malpractice countersuits

The dramatic growth of medical malpractice litigation in recent decades has contributed significantly to an overall increase in health care costs in this country. Although lawmakers, physicians, and other responsible citizens have proposed numerous solutions in an effort to curb the crisis, these proposals have generally been ineffective. In this Article the Author endorses countersuits as the most appropriate response to frivolous medical malpractice actions. The Author also suggests that contingent fee systems, coupled with the economic motivation of private insurers to settle claims quickly, provide incentive for plaintiffs to initiate frivolous claims. This Article analyzes the general legal approaches available for countersuits, emphasizing recent successful actions based on malicious prosecution and abuse of process, and proposes more widespread use of these approaches.     

Medical malpractice reform and insurer claims defense: unintended effects?

In response to recent and past medical malpractice insurance crises, most states have implemented reforms meant to stabilize premiums and coverage availability. The importance of understanding whether these reforms implicitly affect the behavior and incentives of plaintiffs, attorneys, medical providers, and malpractice insurers in the intended way is crucial to policy makers, if they are to achieve their goal. This study specifically examines the effect of reforms on the claims defense efforts of insurers, given that defense expenses account for approximately 30 percent of malpractice premiums. Using state data for the period 1998-2002, we regress claims defense expenses against a variety of reform variables. These include seven tort reforms (noneconomic damage caps, punitive damage limits, attorney fee limits, modified collateral source rule, modified joint and several liability doctrine, mandatory pretrial screening, and statute of limitations) and two government-sponsored insurance mechanisms (joint underwriting associations and patient compensation funds). Claims defense expenses are found to be higher in the presence of noneconomic damage caps, punitive damage limits, and attorney fee limits--an unintended and counterproductive effect of reform--but are lower with mandatory pretrial screening and patient compensation funds.     

The Compensation Culture: Cliché or Cause for Concern?

The ‘compensation culture’ has featured frequently in the popular press over the last decade. There have, however, been comparatively few academic studies and such studies as there have been have largely focused on personal injury claims. A compensation culture, if it exists, could extend much wider than that. This article compares the exponential increase in the use of the term ‘compensation culture’ in the national printed media since 1995 with available statistics relating to the Queen's Bench, County Courts, and employment tribunals. Far from spiralling upwards, these statistics show a broad decline across a range of claims with the exception of claims before the employment tribunals, where the government has created a slew of new heads of claim. In order to counter the misconceptions founded by the popular media, and to allow for greater scrutiny, more attention should be paid to the collection and dissemination of judicial and claims statistics.     

Those Who Hesitate Are Lost: The Case for Setting Behavioral Health Treatment and Disability Standards, Part I

There are multiple factors that impede the implementation of standards into the behavioral health (BH) treatment and disability processes. The combination of physical and psychological conditions as well as the influence of psychosocial issues has consistently been identified as having negative effects on treatment and treatment outcomes. Further, the wide-spread lack of standardization causes a multitude of problems throughout both BH processes. The focus of this first article in a three-part series will examine the explosion of behavioral health claims and the major factors, such as comorbid physical conditions and psychosocial issues, associated with these types of claims. In addition, the overarching theme of lack of standardization will begin to be explored in regard to the problematic definition of disability, communication difficulties between treating professionals and disability insurers and agencies as well as the introduction of bias into the BH treatment and disability processes.     

Environmental Mock Claims Analysis

Environmental risks have earned a reputation for undermining a wide range of business activities. Given the tremendous potential for unanticipated environmental losses, multitiered claims and high-priced litigation, environmental risks have prompted organizations to seek protection through a variety of risk transfer methods. The insurance community has in turn responded with the creation of a progressive menu of project-specific and entity-specific environmental insurance products that can help provide financial security to those organizations exposed to real or perceived environmental risks. What are these products and how do they work? The following mock claim analysis (MCA) highlights some of the risk issues and the insurance solutions.     

Unjust Enrichment in the ‘Fairchild Enclave’ International Energy Group Ltd v Zurich Insurance plc

In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even if the employer was not insured throughout the period of employment. The seven Justices unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching that result, the majority recognised that the insurers were entitled to ‘equitable recoupment’ from insured‐employers in respect of periods during which they were uninsured. This note critiques the recoupment right with an unjust enrichment lens.     

The Simplest Explanation Is Best: How Ockham's Razor Severed Insureds’ Hopes of Indemnification Following Hurricane Katrina

In 2005 Hurricane Katrina ravaged the Gulf Coast and many residents filed claims under their homeowners’ policies. Insurers denied these claims on the grounds that flood damage was expressly excluded from coverage, and homeowners filed suit against their insurers. At trial, these plaintiffs argued that the casualty loss of their homes was attributable to wind rather than flooding. Commentators refer to these cases collectively as the “Wind vs. Water” debate. This article discusses prominent “Wind vs. Water” cases before ultimately proposing federal legislation forbidding insurers from issuing homeowners’ policies unless prospective insureds first obtain federal flood insurance as a prerequisite.     

Insurance Coverage for Environmental Claims: Current Litigation Issues in the United States

The insurance industry introduced exclusions for environmental claims in the general commercial litigation policies in the early 1970s, and introduced even greater restrictions in the 1980s. Litigation over the two most common pollution exclusions has been robust and will likely continue to increase. This article first briefly reviews the history of insurance coverage for environmental claims in the United States, including the most common issues and how the courts have addressed them. The article then discusses the current issues and emerging trends in insurance coverage for environmental claims under the general commercial policies. Finally, there is a brief discussion on the growing market for insurance products that specifically cover (rather than exclude) environmental claims.     

The Insurance Act 2015: Rebalancing the Interests of Insurer and Assured

The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely‐cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre‐ and post‐contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.     

小额诉讼程序适用的改进逻辑

小额诉讼程序的适用比例至今偏低,致使程序的建构意图没能得到实现。从程序运行者、程序利用者和程序运行之监督者的视角剖析成因,有助于探寻到小额诉讼程序依法适用的促进策略。简案若不能有效识别,小额诉讼程序的强制适用将失去起码保障,未来识别简案当采取智能识别为主、人工识别为辅的方式。消解适用合意的稀缺性,可使小额诉讼程序的实际适用率因为合意适用条件的放宽而得到提高,获得适用合意的方法包括事先约定、法院引导达成和事后自行达成。为规制法人或非法人组织对小额诉讼程序的过多利用,援引诚实信用原则对其进行费用制裁更为现实可行。推动小额诉讼程序实现独立、提高首次送达成功率以减少程序转化和重视审级监督的驱动,是促进小额诉讼程序依法适用的重要策略。