保险人代位权与被保险人求偿权竞合时的处理规则

2009年修订的《保险法》对保险人代位追偿权与被保险人损害赔偿请求权竞合时的行使方式和程序方面并没有作明确规定。在这方面,当下的保险法理论和域外实务中大致采用两种做法:一种是不承认保险人代位权与被保险人求偿权的竞合关系,在被保险人获得足额补偿之前不允许保险人行使代位求偿权;另一种是承认保险代位权与求偿权的竞合,但对代位追偿所得又分别实行包括"比例分配"和"被保险人优先分配"在内的4种分配方式。应当在肯定两种相列竞合的情况下,对于足额保险可采用比例分配的方式;在不足额保险中,比例分配规则的逻辑前提是保险合同中对不足额保险约定了比例分摊的条款,如果保险合同对不足额保险是采用"比例赔偿"之外的"第一危险赔偿"方法,则对追偿所得的分配就应当改而采用"被保险人优先"的分配方式。     

法定的债权移转之下的保险代位权制度的困境与选择

在以防止被保险人不当得利这一统一的价值引领之下,大陆与英美两大法系发展出法定的债权移转与权利法定代位两种不同的制度安排。由于不真正连带债务理论的局限,法定的债权移转无法有效地防止被保险人的不当得利,而权利法定代位则有助于克服前者所面临的困境,并以此成为一个相对优化的制度选择。我国目前的研究已经对法定的债权移转的困境展开初步的检讨,但是,其尚未对不真正连带债务这一基本理论构造进行深刻的批判。因此,当下的研究有必要上升到防止被保险人不当得利这一价值高度,由此证明不真正连带债务理论所构造的保险代位权制度存在着价值落空的困境,从而为我国当下保险代位权制度的重塑奠定基础。     

保险受益人研究

狭义上的保险受益人是指于被保险人死亡时有权请求和受领身故保险金的人。他只能是被保险人之外的人,包括指定受益人和法定受益人。投保人有受益人的指定权,被保险人或其监护人有最终的决定权,受益人指定不明时应合理解释。被保险人的法定继承人是其法定受益人,法定受益人的受益顺序依法定继承人的继承顺序,同一顺序的法定受益人受益份额相同。保险受益人原则上为可变更受益人,其变更应采书面形式,并自通知保险人时生效。     

从侵权角度看保险人的恶意拒赔——以美国保险法中的恶意侵权为例

在美国,保险人没有合理的基础却恶意地拒赔或拖赔被保险人的索赔时,可以适用恶意侵权责任对其进行规制。该责任是以合同中当事人应善意而公平交易的默示约定为基础的,它于合同之外而构成独立的侵权责任。恶意侵权责任最早见诸于第三方保险之中,其后扩展到第一方保险,表现为保险人将自己的利益凌驾于被保险人之上而拒绝赔付保险索赔或者拒绝与第三方原告进行和解,因而造成被保险人的损失。在责任范围上,恶意侵权责任包括保险金、律师费、精神损害赔偿和惩罚性赔偿等。尽管还没有得到完全一致的认可,但是保险人的恶意侵权责任在美国已经得到了长足的发展,对于我国实践也有借鉴意义。     

The experience of the Forensic Anthropology Service of the Medical Examiner's Office in Porto Alegre, Brazil

The Forensic Anthropology Service of the Medical Examiner's Office of Porto Alegre was created in September 1997 to examine human skeletons, establish identification and identify lesions that may explain death. From September 1997 to December 2006, 344 skeletons were examined (mean: 37 examinations/year), and 322 were human remains. Most skeletal remains belonged to men (61%) whose age was estimated at 21-50 years (61%). The most frequent bone lesions were caused by fractures (71%), firearm projectiles (11%) and the effects of weather (10%). Antemortem bone changes due to consolidated fractures, degenerative bone processes, congenital bone diseases, and medical procedures were found in 38 skeletal remains (14%). Identification was possible in 83 cases (26%); of these, 78% were identified by DNA analysis, 16% by dental examination, and 6% by anatomic changes associated with healed fractures.     

A Test of a Recently Devised Method of Estimating Skeletal Age at Death using Features of the Adult Acetabulum

Estimation of age at death from adult skeletal remains is highly problematic, due in great part to interpopulation variability in skeletal age changes. Thorough testing of aging methods is therefore of key importance. A method recently devised by Calce (Am J Phys Anthropol 148 (2012): 11–23) for placing adult skeletons into three broad age at death classes (17–39, 40–64, 65+ years) on the basis of acetabular morphology is tested on a collection of 18–19th century AD skeletons (N = 185) of documented age at death from London. Results showed that 45% were correctly assigned to age class using this method. This compares with 81% reported by Calce on 20th century North American material. This indicates significant interpopulation differences in the relationship between the Calce acetabular variables and age, even between populations of European ancestry. Until the sources of this variation are better understood, caution should be used before applying this method to estimate age in unknown skeletons.     

Deconstructing the Construction Defect Insurance Claim

This article provides a practical overview of the issues presented by a construction defect insurance claim. It begins with a discussion of establishing standing under the typical comprehensive general liability insurance policy, with a particular emphasis on additional insured issues. The article then describes the typical issues faced in proving an “occurrence” took place in the context of a construction claim. Thereafter, the article addresses the so-called business risk exclusions and their potential application in a construction defect case.     

利他保险合同下任意解除权的利益失衡与解决路径

在利他保险合同下,我国保险法赋予投保人较强"任意性"的合同解除权,此造成被保险人或受益人保险金请求权的落空,有违"利他"之初衷.《保险法司法解释三》虽以被保险人或受益人的"赎买权"维系利他保险合同的存续,但却难以切实实施.借以行政法比例原则的适合性、必要性以及比例性三个子原则对投保人任意解除权制度予以审查,投保人任意解...     

DXAGE: A New Method for Age at Death Estimation Based on Femoral Bone Mineral Density and Artificial Neural Networks

Age at death estimation in adult skeletons is hampered, among others, by the unremarkable correlation of bone estimators with chronological age, implementation of inappropriate statistical techniques, observer error, and skeletal incompleteness or destruction. Therefore, it is beneficial to consider alternative methods to assess age at death in adult skeletons. The decrease in bone mineral density with age was explored to generate a method to assess age at death in human remains. A connectionist computational approach, artificial neural networks, was employed to model femur densitometry data gathered in 100 female individuals from the Coimbra Identified Skeletal Collection. Bone mineral density declines consistently with age and the method performs appropriately, with mean absolute differences between known and predicted age ranging from 9.19 to 13.49 years. The proposed method—DXAGE—was implemented online to streamline age estimation. This preliminary study highlights the value of densitometry to assess age at death in human remains.     

A visualization approach to prioritizing insurance claims from complex,multi-PRP Superfund sites

Abstract

The severity of environmental insurance claims related to large multi-PRP Superfund sites has grown over the last 30?years. When an insured files a Superfund-related claim, allocated costs to the insured are typically unknown. Assessing the insured’s likely share of future cleanup costs is challenging. This article proposes a simple approach that allows claims professionals to visualize where their insured stands relative to other PRPs' potential allocation of cleanup costs. The resulting color-coded “heat map” allows claims professionals to easily assess and prioritize potential insured losses. It also provides a starting point for settlement negotiations, thus reducing frictional costs.     

Sex determination by discriminant analysis of patella measurements

The authors have analyzed 80 skeletons (40 males and 40 females) from the collection at the Institute of Legal Medicine of the University of Bari belonging to a known contemporary Southern Italian population; time of death was around 1970 and ages ranged from 25 to 80 years. Seven measurements taken on 80 intact, undeformed right patellae (max height, max width, thickness, height and width of the external facies articularis, height and width of the internal facies articularis) were used to determine sex by multivariate discriminant analysis. One function associating two parameters (max width and thickness) obtained the highest value of correct sex determination with a rate of 83.8%; other functions showed a higher percentage of misclassification (up to 17.5%). This study tests the success rate of correct sex prediction based exclusively on patellar dimensions. The discriminant functions carried out by statistical analysis may aid the forensic anthropologist when no other human skeletal remains suitable for sex determination are available.     

Environmental Insurance for Contractors: More Possibilities Than May Be Expected

Pollution events are often thought of as uninsurable. A more realistic view is that loss or claim from a pollution incident is an insured event in many insurance standard property and liability policies. While coverage may be narrow and limits less than may be desired, it does exist. In this article we look at insurance policies typical of the construction industry to determine the extent of coverage for damages from an incident of pollution.     

保险受益权研究

保险受益权应界定为身故保险金的受领权,其主体可以是指定受益人和法定受益人,但不能是被保险人。被保险人与受益人同时遇难的,应推定受益人先死亡。受益人故意伤害或杀害被保险人的,应丧失受益权,但保险人不应因此而免责,对被保险人或其他受益人仍应承担保险责任。受益人为谋害被保险人恶意购买保单,嗣后故意谋杀被保险人的,保险人可解除合同,并对解约前被保险人的死亡不负给付保险金的责任。     

Situational deterrence and claim padding: results from a randomized field experiment

While it is generally argued that threats of legal sanctions are more effective with offenders involved in economic crimes than with delinquents committing more conventional crimes, such an affirmation rests on weak empirical evidence. Also, most studies supporting this proposition were conducted with non-experimental designs, thus, undermining the interval validity of the results. On the other hand, studies base their predictions on individual factors and do not incorporate contextual factors. To overcome those limitations, a randomized field experiment was implemented in four insurance companies to incorporate contextual factors into the dynamics of deterrence. This study assessed the effect of a written threat (a deterrent letter reminding insured persons of the punishment for insurance fraud) on claim padding behaviours of insured persons filing claims for residential theft. A deterrent-letter project was implemented in four insurance companies, with claims randomly assigned to the experimental or the control group. Cases belonging to the control group were managed as usual, while individuals in the experimental group received the written threat. The experimental design made sure that the deterrent stimulus was exactly delivered to the insured persons when they had the opportunity to exaggerate the value of their claims. Findings demonstrate that claimants in the experimental group were less likely to pad their claims than were those in the control group. The letter was effective, regardless of the means of delivery. In conclusion, the administration of a written threat at the moment of criminal opportunity appears to be an effective strategy for preventing economic crimes.

Knocking at the wrong door: insured workers' inadequate psychiatric care and workers' compensation claims

ObjectiveTo describe the prevalence of inadequately evaluated and treated psychopathology among insured workers making workers' compensation claims for psychiatric disability whose cases were reviewed by one forensic psychiatrist. To assess the relationship of inadequate evaluation and treatment to the outcomes of these workers' compensation claims.MethodsRecords of a series of 185 workers' compensation cases reviewed in 1998 and 1999 by a California forensic psychiatrist were abstracted. Patient factors (gender, Axis II pathology, psychosocial circumstances, substance abuse), case factors (psychiatric injury secondary to physical injury, or secondary to psychological stresses), type of provider (mental health, or other), adequacy of evaluation and treatment, forensic psychiatrist's recommendation, and claim outcome were categorized. The relationships between case characteristics, adequacy of care, and claim outcome were described.Results22% of cases had adequate evaluation, 48% superficial, and 30% had no evaluation. 11% had adequate treatment, 67% superficial, and 22% had no treatment. Compared to claims for psychiatric disability related to a physical injury, claims related to psychosocial stresses more often had superficial diagnostic evaluations and treatments. Those with superficial treatment were less likely to have their claim granted (19.3%) than those with no treatment (47.5%) or those with adequate treatment (36.8%). Success of claim was not related to provider type.ConclusionsThe majority of the studied workers with employer-provided health insurance who sought workers' compensation for disability due to mental illness did so inappropriately, in that the workplace did not cause the psychopathology. Their seeking workers' compensation was plausibly due to the observed inadequate evaluation and treatment available through their employer-provided health insurance. The adequacy of their care influenced the likelihood their claim would be granted. The relations observed here merit further research to establish their generality and to determine their causes.     

船舶所有人对光租船船舶保险赔偿的请求权及其诉讼时效的法律适用

船舶所有人对光租船有保险利益,对船舶保险赔款具有诉权。光租合同纠纷已经判决,但在执行中未得清偿,依不真正连带之债的原理,被保险人仍有权根据船舶保险合同关系就船舶损失向保险人索赔。海上保险合同诉讼时效中断适用《中华人民共和国海商法》第267条第1款的规定,但在适用该条文时,应对语义进行恰当的解释。     

Forensic or Archaeological Issue: Is Chemical Analysis of Dental Restorations Helpful in Assessing Time Since Death and Identification of Skeletonized Human Remains?

In 2011, small mass grave with completely skeletonized remains was discovered in Belgrade suburb. An eyewitness claimed that skeletons belonged to German soldiers killed in WWII. Anthropologists were engaged to investigate whether the skeletal remains correspond to the indicated German group or represent more recent case requiring court trial. Numerous dental restorations were noticed. Owing to the fact that different dental materials were used in dental practice at certain times, the aim of this study was to explore whether analysis of dental restorations could help in identification and estimation of time since death. Inductively coupled plasma optical emission spectrometry revealed that dental fillings corresponded to copper amalgam, conventional silver amalgam, silicophosphate cement, and zinc phosphate cement. Chemical results combined with anthropological and historical facts suggest that the individuals lived before the 1960s in country with well‐developed dental service at that time. Therefore, chemical analysis of dental fillings was useful to distinguish between skeletal remains that are too old to be of forensic interest and the remains relevant to legal investigations.     

Maxillary suture obliteration: a test of the Mann method

The degree of obliteration of the maxillary sutures has recently been presented as a useful technique for predicting the age at death of adult skeletal remains. A replicative study of the method on a sample of male skeletons of verified age was undertaken to test its accuracy. Results indicated that the variability in predicted age, as reflected by the total suture score, was too great to recommend use of the method for age determination in individual forensic science cases.     

Differences in morphological age-related dental changes depending on postmortem interval.

Morphological methods for age estimation from teeth have been developed and applied to samples without taking the postmortem interval into consideration. We studied differences in morphological age-related changes between fresh extracted teeth and teeth from human skeletal remains in order to develop appropriate dental age estimation methods according to the time after death. Forty-three permanent teeth from dental patients were compared to 37 teeth obtained from human skeletal remains with a postmortem interval from 21 to 37 years. Morphological age-related changes were investigated by measuring variables on intact and half-sectioned teeth. A new computer assisted image analysis procedure to avoid subjectivity was developed to measure variables in sectioned specimens. Dental color, translucency length, attrition, cementum apposition, and secondary dentin showed higher values in teeth from human skeletal remains than in fresh extracted teeth. Variables obtained by morphometric analysis of computer-generated images (tooth length, tooth width, root length, and root area) showed higher values in fresh extracted teeth than in teeth from skeletal remains. The postmortem interval affects age-related morphological changes, and therefore different methods should be used for teeth of unknown postmortem interval.     

Classification of Pelvic Ring Fractures in Skeletonized Human Remains

Pelvic ring fractures are associated with high rates of mortality and thus can provide key information about circumstances surrounding death. These injuries can be particularly informative in skeletonized remains, yet difficult to diagnose and interpret. This study adapted a clinical system of classifying pelvic ring fractures according to their resultant degree of pelvic stability for application to gross human skeletal remains. The modified Tile criteria were applied to the skeletal remains of 22 individuals from the Cleveland Museum of Natural History and Universidad Nacional Autónoma de México that displayed evidence of pelvic injury. Because these categories are tied directly to clinical assessments concerning the severity and treatment of injuries, this approach can aid in the identification of manner and cause of death, as well as interpretations of possible mechanisms of injury, such as those typical in car-to-pedestrian and motor vehicle accidents.