TIPS 75th Anniversary

The Tort & Insurance Law Jounal

Fall 2000
Volume 36, Number 1

Table of Contents


Attempts to Federalize and Codify Tort Law
Ronald W. Eades

The Surety's Rights of Equitable Subrogation versus the U.S. Government's Right to Sovereign Immunity
Marilyn Klinger

Employee Theft Versus Manifest Intent: The Changing Landscape of Commercial Crime Coverage
Toni Scott Reed

The New Anticybersquatting Law and Uniform Dispute Resolution Policy for Domain Names
Christopher J. Schulte

The Gradual Enfeeblement of the Learned Intermediary Rule and the Argument in Favor of Abandoning It Entirely
James Ottavio Castagnera and Richard Ryan Gerner

Paradigms of Proximate Cause
Peter C. Haley

Policyholder Claims for Tobacco-Related Liability
Walter Andrews

Abstracts

Attempts to Federalize and Codify Tort Law
Ronald W. Eades

  Ronald Eades, professor of law at the University of Louisville Louis D. Brandeis School of Law, discusses and decries what he perceives as attempts to federalize the codify tort law. After examining the emergence of tort law as a flexible response to local needs, Eades notes that the attack on the local, common law nature of tort has arisen in at least two forms. The first is the codification movement, which has been most recently demonstrated by the American Law Institute and its various Restatements of the law. Those who favor codification, according to Eades, "continue to ridicule the court-made law generated by the common law system." The second is the federalization of tort law, which is evident in the creation of federal torts (i.e., civil remedies for employment discrimination, sexual harassment, etc.) and federal preemption in such areas as cigarettes, railroads, airplanes, motor vehicles, medical devices, and government contracts. Tort law ultimately works because it is an immediate response to local needs in a community and attempts to impose uniformity through codification or federalization will only detract from its effectiveness.

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The Surety's Rights of Equitable Subrogation versus the U.S. Government's Right to Sovereign Immunity
Marilyn Klinger

  The purpose of this article is to analyze the opinion of U.S. Supreme Court in Department of the Army v. Blue Fox, 525 U.S. 255 (1999); examine the arguments on each side of the issue; and explore the potential for far-reaching effects of the Court's decision. The Blue Fox Court held that the doctrine of sovereign immunity, which shields the federal government from all but a very limited number of claims, prevents a subcontractor from suing the government for amounts that the general contractor failed to pay to the subcontractor. At the time this article was written, no appellate court had directly addressed the effect that the Blue Fox decision might have on a surety's right to recover contract balances. However, Insurance Co. of the West v. United States, which was expected to provide the federal courts with such an opportunity, was then on appeal from the U.S. Court of Federal Claims.

  In a fascinating discussion of the potential impact of the Insurance Co. of the West decision on the surety industry, the author suggests that, if the U.S. Supreme Court ultimately concludes that the federal government has not waived sovereign immunity in connection with a surety's equitable subrogation rights, the Court's decision is likely to be narrow in scope. If the decision is not narrow in scope, sureties that do not enter into takeover agreements with the government may be significantly prejudiced in a number of situations. In such a case, it is possible that Miller Act sureties will be more inclined to allow their principals to go into default


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Employee Theft Versus Manifest Intent: The Changing Landscape of Commercial Crime Coverage
Toni Scott Reed

  During the past two decades, the "manifest intent" requirement of fidelity bonds has provided guidance as to the type of dishonest conduct that was intended to be covered by such insurance policies. Nevertheless, courts have failed to adopt a single approach to construing the manifest intent standard. More recently, some commercial crime policies have abandoned the manifest intent standard in favor of a theft standard for employee dishonesty coverage, thereby presenting new challenges for the insured, the insurer, and the courts that will have an opportunity to analyze the language. After discussing the relevant policy language, this article reviews the principles of interpretation for both approaches and concludes with a direct comparison of manifest intent versus theft standard in specific cases.

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The New Anticybersquatting Law and Uniform Dispute Resolution Policy for Domain Names
Christopher J. Schulte

  Trademark disputes have found fertile ground on the Internet, if only for the fact that only one person or entity can own a particular domain name. In 1995, the owners of famous trademarks gained leverage in such disputes with the passage of the Federal Trademark Dilution Act (FTDA), which provided such mark holders with a new federal claim to plead in name disputes. The rights of such owners were further strengthened in 1999 when Congress enacted the Anticybersquatting Consumer Protection Act. This Act was designed to combat the cyrbersquatter, a profiteer who registers a domain name in an effort to sell it back to its rightful trademark owner and who has often eluded the reach of the FTDA. This article discusses in detail the FTDA, the ACPA, the Uniform Name Dispute Resolution Policy, as well as other measures to protect legitimate trade mark holders.

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The Gradual Enfeeblement of the Learned Intermediary Rule and the Argument in Favor of Abandoning It Entirely
James Ottavio Castagnera and Richard Ryan Gerner

  In its traditional form, the learned intermediary rule shields drug product manufacturers from liability for failing to warn consumers about product risks when the relevant information was provided to the physician, the so-called learned intermediary. The authors contend that the learned intermediary rule is not an effective means of providing warnings to the patient. Whether the learned intermediary intentionally or unintentionally omits pertinent information when passing on the manufacturer's warning, patients suffer. Several other channels of communication are available to manufacturers, particularly those that already engage in direct-to-consumer advertising. The authors further contend that the evolving case law of the learned intermediary rule is a step in the right direction. Each court decision that increases the manufacturer's duty to warn encourages companies to place safer products on the market, thereby lessening their risk of product liability and personal injury litigation.

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Paradigms of Proximate Cause
Peter C. Haley

  American judges and academics have struggled mightily to provide a framework for deciding when, and under what circumstances, a plaintiff has established an acceptable causative link between his or her damages and the defendant's conduct. The most commonly applied framework for analyzing proximate cause issues is a two-part test: (1) causation in fact and (2) proximate cause. Courts first determine whether the alleged damages would have been incurred but for the defendant's acts or omissions. If necessary, the court next proceeds to determine whether (1) the plaintiff's loss or injury was foreseeable by the defendant, and (2) as a fundamental policy of the law, the defendant's responsibility should extend to paying for the loss/injury at issue, even if the loss/injury was indeed foreseeable. Obviously, this formulation leaves room for manipulative arguments on all sides. The author discusses some of the more problematic aspects of establishing proximate cause, particularly in view of the Daubert and Kumho requirements for expert witnesses.

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Policyholder Claims for Tobacco-Related Liability
Walter Andrews

  This article addresses whether coverage exists under general liability policies for companies with tobacco-related exposures. Specifically, it examines several provisions commonly found in general liability contracts to determine whether they would preclude coverage for tobacco-related claims. Although the specific underlying claims undoubtedly will sharpen the focus of any coverage analysis, the applicable provisions generally include: (1) the definition of occurrence, (2) the pollution exclusion, (3) notice requirements, (4) the uninsurability of punitive damages, (5) the "as damages" limitation, (6) the "bodily injury" requirement, and (7) the lack of advertising injury. Regardless of the specific policy provision considered, the message is clear: companies engaged in the manufacture or distribution of tobacco are not insured for their tobacco-related liabilities under their CGL policies.


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The Tort and Insurance Law Journal


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