Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud. The first, Versloot Dredging BV v HDI‐Gerling Industries Versicherung (The DC Merwestone), concerned the use of a fraudulent device being harnessed to support a legitimate claim which, in the view of the majority, was an area of insurance law in need of re‐evaluation. The second, Haywood v Zurich Insurance Co, concerned the use of fraud to increase the settlement paid by the insurer and whether an insurer, which suspects fraud but has nevertheless chosen to settle a claim, is entitled to set aside the settlement under the tort of deceit where it subsequently discovers proof that it was in fact fraudulent. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.     

Computer says no: technology and accountability in policing traffic stops

The Road Traffic Act 1988 gives police in the United Kingdom the power to seize motor vehicles which they have reasonable grounds for believing are being driven without a valid driver??s licence or motor insurance. Drivers may then have to pay a fee to have their vehicles returned. When exercising this power of seizure, the police may rely on information contained on the Police National Computer (PNC) which is linked to the National Insurance Database (NID). Whilst these databases are undoubtedly invaluable in this endeavour, they are not always accurate, and incidents have occurred whereby motorists who are in fact driving with valid insurance have had their vehicles seized and retained. Focusing on the case of Lisa, whose vehicle was wrongly impounded by Merseyside Police in 2007, and other cases, we explore the legitimacy and legality of such activity. We question both the discretionary power of the police in taking such action, and the validity of their (over) reliance on technology. We posit that the taking of money in cases such as Lisa??s is evidence of the turn within public policing towards marketisation, and consider the capacity for harm to innocent individuals and the implications for justice and fairness. Ultimately, we contend that police accountability is compromised and that a new approach is required. We close the piece with some recommendations for improved police practice.     

Fatal Wrong‐Way Collisions on New Mexico’s Interstate Highways, 1990–2004

Abstract: Medical examiner files from 1990 through 2004 were reviewed to identify fatalities caused by drivers traveling the wrong direction on interstate highways and identify risk factors and prevention strategies. Other fatal nonpedestrian interstate motor vehicle crashes served as a comparison group. Data abstracted included decedent demographics, driver/passenger status, seatbelt use, blood alcohol concentration, weather and light at time of occurrence and types of vehicles involved. Of 1171, 79 (6.7%) interstate motor vehicle fatalities were because of drivers traveling against the posted direction in 49 crashes, with one to five fatalities per crash. Wrong‐way collisions were significantly more likely to occur during darkness (p < 0.0001) and involve legally intoxicated drivers (p < 0.0001). In 29/49 (60%) wrong‐way crashes, alcohol was a factor. Prevention strategies aimed at reducing the incidence of driving while intoxicated, as well as improved lighting and signage at ramps, could help reduce the occurrence of fatal wrong‐way collisions on interstates.     

Umbrella Coverage Is Available: Don't Get Soaked—Coverage for Environmental Liabilities in the Wake of California's Powerine Cases 1 and 2

California case law demonstrates the value of umbrella insurance coverage when policyholders are confronted with environmental liabilities imposed administratively by environmental authorities. California law holds that certain general-liability umbrella coverage language is broad enough to cover environmental claims arising solely or partly out of administrative requirements which claims generally are not otherwise covered by primary insurance. See, e.g., Powerine Oil Co., Inc. v. Superior Ct., 37 Cal. 4th 377, 398–99 (2005); Lockheed v. Continental Inc. Co., 134 Cal. App. 4th 187 (2005); Ludgate Ins. Co. v. Lockheed Martin Corp., 82 Cal.App. 4th 592, 605–6 (2000). Regrettably, however, excess/umbrella insurance companies may seek to conflate umbrella first-dollar and excess coverage obligations when faced with claims in seeking to delay or avoid payment.     

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement.     

Anti‐suit Injunctions and the Doctrine of Comity

Hin‐Pro International Logistics Limited v CSAV is an important case in the areas of anti‐suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti‐suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

Aspects of the evolution of extra-legal protection in Bulgaria (1989–1999)

In this paper I look at the interplay between organised crime, law, and the state and argue that the evolution of organised crime organisations in Bulgaria was shaped by the dynamic transformation of the legal and economic environment during the 90s, by policies of the state, such as, for example, the regulation of the private security and insurance industries (in 1994 and 1998 respectively), which mafia-like organisations used as fronts for their activities during the 90s and by the ability of organised crime organisations to adapt to the constantly changing conditions. In the first section of the paper I look at the emergence of the private security and private protection industries in Bulgaria with an emphasis on the development of organisations using the threat of violence to settle disputes, discourage competition, retrieve stolen property and collect debts. In the second section of the paper, I follow the transformation of certain type of private security companies into insurance companies, which directed their activities at properties liable to risk, for instance cars and small shops. They enjoyed an advantage over ordinary insurance companies because they possessed greater information about the risks, which could affect the property of their clients, for example theft (car theft in particular). The concluding section discusses the development of silovi grupirovki (the Bulgarian name for organised crime organisations) after 1998 when a very strict licensing regime for insurance companies was introduced and alleged to be mafia-like organisations were removed from the insurance market.

机动车犯罪防控对策——关于机动车强制安装卫星定位系统的思考

随着机动车犯罪案件数量的增多,犯罪手段的智能化、技术化、集团化趋势日益明显,公安机关的传统侦控方式已经不能满足遏制这类犯罪的需要,而追踪机动车的行动轨迹成为侦查此类犯罪的常用程序,故建议在全国机动车上强制安装卫星定位系统,以此来控制机动车犯罪.立法机关应当把“机动车上强制安装卫星定位系统”的建议写入《中华人民共和国道路交通安全法》.这一技术手段的应用可能会触及公民的隐私权,但其社会的公益性远远大于个人的隐私权,而且公民的隐私权也能够得到有效的充分保护.     

Exemption from the make inoperative prohibition. National Highway Traffic Safety Administration (NHTSA), DOT. Final rule

NHTSA is taking action to facilitate the modification of motor vehicles so that persons with disabilities can drive or ride in them. The agency is accomplishing this by issuing a limited exemption from a statutory provision that prohibits specified types of commercial entities from either removing safety equipment or features installed on motor vehicles pursuant to the Federal motor vehicle safety standards or altering the equipment or features so as to adversely affect their performance. The exemption is limited in that it allows repair businesses to modify only certain types of Federally-required safety equipment and features, under specified circumstances.     

Different countries, different needs: the role of private health insurance in developing countries

This article discusses the role of private health insurance (PHI) in developing countries. Three broad regional clusters are identified that share similar characteristics and policy challenges for the effective integration of private insurance into national health care systems: (1) Latin America and Eastern Europe, where there are already developed insurance industries facing important market and policy failures; (2) the Middle East/North Africa region and East Asia, where there is a projected strong growth of PHI that needs to be accompanied by efficient regulation; and finally, (3) South Asia and Sub-Saharan Africa, where PHI will only play a marginal role in the foreseeable future while the scaling up of small-scale, nonprofit insurance schemes appears to be of critical importance. Overall, this survey shows that the role of private insurance varies depending on the economic, social, and institutional settings in a country or region. Private health insurance schemes can be valuable tools to complement existing health-financing options only if they are carefully managed and adapted to local needs and preferences.     

Recreational Sporting Activity Vehicle‐Related Deaths

Deaths occurring in the setting of nonprofessional, vehicle‐related, recreational sporting activities occurring on land or in water during warm or winter months represent a diverse group of cases. These deaths tend to involve scenarios where the participants are purposefully attempting to enjoy themselves prior to experiencing sudden, catastrophic accidents resulting in lethal outcomes. Ultimately, many of the deaths are related to the high speed at which these vehicle‐related activities normally occur. Three broad categories of factors may play contributory roles in death: human factors, vehicle factors, and environmental factors. A series of selected cases are presented, representing examples of varying activity types, involving motorized and nonmotorized vehicles, land and water activities, and warm weather and cold weather environments. For each case, the various human, vehicle and environmental factors believed to be contributory to the accident are considered, and strategies for prevention of these and similar deaths involving recreational sporting vehicles are presented.     

Rolling the Dice: How Many Occurrences Have Occurred?

The insurance litigation that followed from the World Trade Center tragedy has produced two decisions. The two decisions are diametrically opposed. First, the court found that for those insurance policies that contained a definition of the policy term “occurrence,” the collapse of the two buildings constituted a single occurrence. SR International Business Insurance Co., Ltd. v. World Trade Center Properties LLC, et al., 222 F. Supp. 2d 385 (S.D.N.Y. 2002), aff'd, World Trade Center Properties, LLC, et al. v. Hartford Fire Insurance Co., et al., 345 F.3d 154 (2d Cir. 2003). Then, after a trial involving those policies that did not define the term “occurrence,” the jury held that the collapse of the two buildings constituted two occurrences. This incongruous result demonstrates two truths. First, when the insurance industry wants to, it can define the term ‘occurrence’ in a totally unambiguous manner:

Occurrence shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.

See WilProp form insurance policy for the World Trade Center, cited at 345 F.3d at 160.     

The use of liquid latex as a pre-treatment to recover debris-covered latent fingerprints from exterior surfaces of vehicles

This study evaluated the effectiveness of using liquid latex as a pre-treatment for fingerprint recovery from the exterior surfaces of vehicles in summer. The sample of this study was 540 sebaceous latent fingerprints deposited on the lower body of three vehicles. Thirty control and thirty experimental fingerprints were deposited on each vehicle, and the experiment was repeated three times. The three vehicles were driven daily for either 2, 3, or 4 weeks after the deposition of fingerprints. After the vehicles reached their designated debris accumulation duration, the latent fingerprints in the control groups were developed with black fingerprint powder. Liquid latex was applied onto the fingerprints in the experimental groups, and they were subsequently developed with black fingerprint powder. A chi-sure test indicated that there was a significant difference in fingerprints recovery performance between two methods (X² = 4.903, d.f. = 1, p = 0.027). An odds ratio test indicated the control method increases the probability of fingerprint recovery by 1.54 times. A Fisher's exact test was used to evaluate the quality of fingerprints recovered from both methods and it indicated that there is no significant difference in quality using the two methods (p = 0.058). This study indicated that the traditional fingerprint powder method performed better for fingerprint recovery from exterior surfaces of vehicles in summer.     

Sevilleja v Marex Financial Ltd: Reflective Loss and the Autonomy of Company Law

In Sevilleja v Marex Financial Ltd the Supreme Court considered the ambit of the prohibition on a shareholder recovering losses from third parties for the reduction in the value of their shares or loss of dividend income arising from a wrong suffered by the company. This prohibition on ‘reflective loss’ had been growing in scope in recent years, leading to a lack of clarity as to whether it is taxonomically situated in company law or in private law. The majority in this case situated the prohibition firmly within company law. This note argues that the majority judgment did not go far enough and explores the impact of this case on company law more broadly.     

机动车责任保险制度在机动车事故中的作用

机动车责任保险在交通安全管理中起着抑制交通灾害,促进民事责任制度发展的重要的作用。我国虽然实行了机动车第三者责任强制保险制度,但仍然存在一定的缺陷。解决的对策是应改变责任限额全国统一数额的规定;同时扩大道路交通事故社会救助基金单一的垫付抢救费的职能,增设机动车事故人身伤害补偿金制度。     

The Use of Liquid Latex to Recover Latent Fingerprints that are Covered in Debris from Exterior Glass Surfaces of Vehicles

The purpose of this research is to determine if latent fingerprints deposited on the exterior glass surfaces of vehicles, then covered in debris, can be recovered. Past research used liquid latex to lift soot to recover trace evidence. Recently, liquid latex has been used to recover latent fingerprints along the bottom of vehicles. In this study, a total of 216 latent fingerprints were deposited on the exterior windows of three vehicles. Three control and three experimental latent fingerprints were placed on each side window. The vehicles collected debris for either 2, 3, or 4 weeks. After debris collection, liquid latex was applied to the experimental sections. The underlying fingerprints were developed with white granular powder. Control fingerprints were developed directly with white granular powder. A chi-square test revealed a significant difference in fingerprint recovery between the control and liquid latex method (X² = 9.026, d.f. = 1, p = 0.003). An odds ratio determined that the control method increases the probability of latent fingerprint recovery by 2.68. Fisher's exact test indicated that there is no statistically significant difference between the detail of the recovered control and experimental fingerprints (p = 0.065). This study demonstrates that recovery of fingerprints is possible using the liquid latex method; however, the control method recovers more fingerprints on the glass exterior of vehicles. If latent fingerprints are thought to be present on the exterior glass surfaces of vehicles, the control method should be used to improve vehicle processing by investigators.     

论机动车交通事故中特殊责任的承担规则

机动车交通事故中的特殊责任主要包括保险公司的责任以及保有人无过错时的责任两种类型,这种特殊责任的归责基础是以分配正义为基础的对于事故损害的适当分配,是现代福利国家追求实质正义的体现。机动车交通事故中的基本责任和特殊责任分别是矫正正义和分配正义理念在事故法中的体现。特殊责任中的保险公司责任又可以区分为赔偿责任和垫付责任,两种责任在适用前提、赔偿范围等方面存在根本区别;机动车保有人无过错时的责任数额的具体确定,应当结合受害人方面的过错予以具体确定。     

骑跨伤在机动车碰撞自行车事故中的特征及生物力学分析

目的以真实案例为基础,研究自行车与机动车碰撞交通事故中,不同机动车型、交通方式等因子造成自行车骑车人下肢内侧骑跨伤的特征,分析其生物力学机制。方法选取上海地区发生的自行车与机动车碰撞交通事故案例140例,全面收集现场、自行车、机动车、人体、交通方向等信息,运用回顾性研究方法分析,同时,选取其中典型案例,通过计算机仿真技术模拟事故发生过程,提取人体各受伤部位的动力学响应数值,如加速度、力和力矩等,与案例研究结果对比。结果全部事故中出现骑跨伤与无骑跨伤案例频数相等;侧面撞击与前后方向撞击骑跨伤的发生情况无显著性差别;大型车辆撞击事故中出现骑跨伤频率较低;骑跨伤的发生频率随车速加大而增高;就骑跨伤的分布来说,撞击侧下肢骑跨伤位置低(链条、脚蹬管等损伤),而对侧骑跨伤位置高(鞍座损伤),在小型车辆撞击时该特点更明显。结论分析自行车骑车人的骑跨伤特征和生物力学机制有望对道路交通行为方式鉴定提供新依据。