Library Guides: Business Torts: Fiduciaries, Unfair Practices, & Trade Secrets: Major Considerations

An Insurance Perspective When Filing Claims

Understanding Insurance Law by Robert H. Jerry; Douglas R. Richmond
ISBN: 0769845932
Publication Date: 2012-05-01
This comprehensive Understanding treatise can be used as the course text or as a supplement to any insurance law casebook. Insurance Law is designed to make the substance of insurance law accessible to the student and to the general practitioner unfamiliar with the subject.
The premise of this book's organization is that insurance law is best understood if its legal principles are arranged according to the various stages in the life of a contract. Part A considers the question "what is insurance law". Part B considers issues germane to the establishment of the contractual relationship between insurer and insured. Part C considers issues relevant to the performance of contractual obligations. Finally, Part D examines a few topics that defy easy categorization, including special problems in group insurance, special issues in automobile insurance, issues in reinsurance, and a new chapter on excess and umbrella coverage.

I found this secondary source extremely helpful in understanding a plaintiff's perspective when filing a lawsuit. For many smaller businesses with less money, plaintiffs will not pursue a lawsuit unless they are sure the company has the funds to pay. Sometimes plaintiff's will purposefully trigger coverage in an effort to get the insurance company involved in an effort to get the insurance company to settle. In Section 111 of the treatise, Robert Jerry notes an interesting trend among plaintiffs. Most Commercial General Liability Policies will exclude intentional torts from coverage. However, they do cover negligence. If a plaintiff supplements an intentional tort with a negligence claim, this triggers the insurance companies duty to defend even if the claim is without merit. This is because insurance companies must defend all potential claims within the coverage. This creates perverse incentives for plaintiffs to add such claims in an effort to get insurance companies to settle on behalf of their clients even if such claims are not likely to be true. It also can create a moral hazard by defendants colluding with plaintiff's attorneys by showing them the coverage so plaintiffs can tailor the claims to trigger insurance coverage.

Suing and Defending Fiduciaries
For anyone interested in filing a cause of action, this comprehensive secondary source from the ABA goes into great detail about the duties of fiduciaries, the duty of loyalty, self dealing and all different contexts in which a suit can arise. While it was made in 2001, the context of common law in torts is much the same today unless preempted by statute.

Causes of Action and Defenses
This article by the Lindley Law Firm contains a step by step guide and powerpoint to apprise on of the major considerations and affirmative defenses when being sued in a breach of fiduciary duty action