April 7th Notes

Complex Litigation
April 7, 2010


Insurance
I. Terminology
II. Coverage/Exclusions
III. Types of Insurance
IV. Insurer's Duties & Bad Faith


Terminology

Insured/Assured
    -the shifter of risks, the person who took out the policy shifts the risk to someone else

Insurer/Assurer
    -the entity that bares the risk

Premium
    -the consideration, what the insurer gets for taking the risk

Deductible
    -the amount of risk that the insured retains, controls the premium costs

Proceeds
    -what you are paid, the benefit paid under the policy

Beneficiary
    -the person who gets the proceeds from the policy, usually the insured the exception is life insurance where the insured is dead

Occurrence
    -the loss you are insuring against

Sudden/Accidental
    -what the occurrence has to be in order to be covered, can not be on purpose

Claim
    -demand so proceeds

Insurable Interest
    -who you are allowed to insure, it must be of interest to you
    -contracts are always construed against the party who drafted it

Proof of Loss
    -submit proof that the loss occurred to the insurer, document what you insure
    -receipts, video tape, appraisals

EUO
    -examination under oath to prove what you lost

Cancellation
    -to voluntary terminate the policy by the insured

Lapse
    -if the insured stops paying the policy
    -this goes on your credit

Coverage
    -what losses trigger the insurance to pay


Types of Insurance

AUTO:
Liability
    -insurance required by law
    -pays the other party if you have an accident that is your fault

UM/UIM
    -uninsured motorist
    -under-insured motorist
    -they are merged now, covers you and the occupants from the negligence of others that don't have insurance

Comprehensive
    -covers the vehicle only and only for non-operational losses, that don't arrive from collisions

Collision
    -operational losses, other vehicles, objects

PIP/Med. Pay
    -both will pay your medical bills and all occupants of your vehicle, Med pay does not pay for your work loss, but PIP does pay your wage losses
   
Splits
    -how much the insurance will pay any one person (single limit) / what they will pay for the entire accident (aggregate limit)
    -25/50, 50/100, 100/300
   
Deductible
    -get the deductible at a high enough rate you can handle
    -raise to $1000 if they will let you

PERSONAL PROPERTY
    -covers personal property not the location of the property
    -auto does not cover the contents of the vehicle ever
    -there are limits on items attractive to thieves (usually only $1000 max)
    Top Items
    1. Jewelry
    2. Silver
    3. Guns
    4. Cash/Coins
    5. Furs
    -scheduled: use this cover unique items you want to cover

Indemnity Contract
    -insurance pays the loss not the face value of the policy it is different for life insurance, there you get the face value

Two types of coverage for personal property
1. Replacement Coverage
    -better of the two, if it is stolen it will be replaced by like, kind and quality
   
2. ACV Coverage
    -actual cash value, pay you what the item is worth now

Marine
    -goods in shipping are covered around since 1500's, the goods and the profit you will make on the goods

Title
    -in real property, policy insuring you are the owner of real property

Inland Marine (CGL)
    -covers a business, comprehensive general liability coverage, will also cover lost profit of your business, pollution losses are not covered

Subrogation
    -paid a claim, tendered the proceeds, they acquire all the rights the insured have, the insurer steps into the rights of the insured and can now sue

Increase of Hazard
    -the risk increases depending on the item insured, like a new car

PUP
    -personal umbrella policy, cover you and all your additional policies as well
    -extra layer of coverage on all of your other policies   
    -usually sold in million dollar amounts
    -requirement is maximum auto insurance
    -cheap to own too

E&O
    -errors and omissions, malpractice for professionals

Life
    -betting on your death, depends on who cares if you die

1. Whole Life: ordinary or straight life
    -sets a premium and never changes
2. Term:
    -sets premium at a year of a time
    -get it when you need it, young and when you need it

Renter's Insurance
    -includes personal liability part, personal property, most landlords do not cover the tenants only the building

Grace Period
    -additional time after the expiration of a policy to renew, if you have a loss during this period, you are not covered

Defend/Indemnify
    -defend meaning that if you cause an action to get sued, they will defend you
    -indemnify meaning they will make you whole for the loss you suffered

    -do they have a duty to defend or indemnify?
        -reservation of rights, not sure if they have a duty here, they are investigating option
        -declaratory relief, they sue you to get a declaration they have no duty
       
Bad Faith/Fiduciary Duty
    -they have a fiduciary duty to their insurers, highest utmost duty and good faith, putting other party interest on par or ahead of your own
    -bad faith: when that duty is violated, the penalty is to pay the full amount of the policy

Complex Litigation
-one of more related cases that present unusual problems and require extraordinary treatment particularly if they are large or protracted

-large case has multiple parties, multiple related cases, multiple jurisdictions or all three

Annoted Manual for Complex Litigation Book

Additional grants of power to the judge
FRCP 16
FRCP 26
FRCP 37
FRCP 42
FRCP 83
FRCP 53 Special masters to discovery
Important case on judge's power to meet the needs of complex litigation
Chambers v. NASCO
111 SCt 2123, 2132-37 (1991)

-Pretrial conference there is a meeting even if you have not been served yet, its done aggressively
-scheduling order in 120 days of service
-judge plays an active roll, have enormous power to award sanctions

11(a)(1)(B)
-recommend disbarring if they are not fully cooperative

RPC 8.4(d)
DR 1-102(A)(5)
-what the lawyers can run into for

There are many lawyers and they are broken into groups:

Lead Counsel (top attorney)
    -formulate positions of all the lawyers

Liaison Counsel
    -to work with the court about scheduling and accommodating, contact between court and the other lawyers

Trial Counsel
    -actually trying the case 

Committee (Steering)
    -other groups, getting them centralized

Rule 12 motions are discouraged
    -challenges to the pleadings, takes too much time
    -love joint briefs, less reading streamline

Rule 56
    -summary judgments are great since they streamline

Rule 26
    -discovery, limits and control on discovery
    -is the discovery pivotal?  if yes, its okay

depository: where they keep all the discovery, one central location

contention interrogatories
    -like them since they find out the issues quickly

depositions
    -encourages to skip and do informal interviews instead

    -like telephone depositions
    -conference deposition: deposing multiple parties all together
    -representative deposition: one person speaks for all
    -multi track depositions: going on all over simultaneously