TIPS 75th Anniversary

The Tort & Insurance Law Jounal

Spring 2000
Volume 35: Number 3

Table of Contents


Confusion in the Courts: Managed Care Financial Structures and Their Impact on Medical Care
E.H. MORREIM

A Realistic Consensus Approach to the Insurance Law Doctrine of Reasonable Expectations
PETER NASH SWISHER

ERISA Preemption and Individual Conversion Policies: How Broad Should ERISA Coverage Be?
JOHN T. BURNETT

Dial I for Insurance: Why The Mobile Phone Industry Should Call on Its Insurers To Cover Liabilities Arising from Radio Frequency Energy
JOHN T. WALDRON III

Tacking Toward A Reliable Test for Seaman Status Under the Jones Act
JUSTIN R. MARTIN

ABSTRACTS

ERISA Preemption and Individual Conversion Policies: How Broad Should ERISA Coverage Be?, 35 TORT & INS. L.J. 3 (2000)
By: John T. Burnett

The Employee Retirement Income Security Act of 1974 is among the most comprehensive employment legislation ever passed by Congress. Nevertheless, as Part I of this article explains, federal courts continue to disagree about the application of preemption to the claims of individuals who have exercised their right to convert coverage under a group plan into an individual policy. Part II of this article describes the policies behind ERISA preemption and the mechanisms through which it is achieved. Part III identifies cases that have extended ERISA preemption to conversion policies and explores the foundations of those rulings. Part IV identifies cases that have not extended ERISA preemption to individual conversion policies and discusses the logic behind those rulings. Finally, Part V demonstrates why ERISA preemption should not be extended to individual conversion policies.

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Tacking Toward A Reliable Test for Seaman Status Under the Jones Act, 35 Tort & Ins. L.J. 3 (2000)

By: Justin R. Martin

The Jones Act provides a personal injury compensation scheme for “seamen” much the same as worker’s compensation laws protect on-shore workers. The definition of “seaman” has been much litigated, because courts have found it difficult to determine whether some maritime workers, such as dock workers, have a sufficient connection to the sea to claim “seaman status.” The U.S. Supreme Court has addressed the “seaman status” issue four times since 1991. In certain cases, the Supreme Court has endorsed a rigid test that may bar “seaman status” for those workers that do not log a prescribed proportion of hours at sea. The author concludes that a more flexible test, which affords “seaman status” to a worker that performs ship’s work for a substantial length of time while confronting the perils of the sea as a member of the ship’s crew is the most just and practical test. Such a “totality of the circumstances test” will enable courts to consider all the employment-related circumstances surrounding a worker’s contribution to the function of the ship, and provide a test that is sufficiently dynamic to account for changes in circumstances and for unusual claimants.

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Confusion in the Courts: Managed Care Financial Structures and Their Impact on Medical Care, 35 TORT & INS. L.J. 3 (2000)
By: E.H. Morreim

This article examines three recent cases in which courts have made important decisions at least partly on the basis of inaccurate or inadequate conceptions about the financial structures of managed care plans and their financial, medical, and legal implications. Among the cases under discussion are one state supreme court case, Petrovich v. Share Health Plan of Illinois, Inc., and two federal appellate court cases, Herdrich v. Pegram and In re U.S. Healthcare, Inc. In each case, the problems of interest here do not reside in the courts’ final conclusions but in their erroneous reasoning. Petrovich reverses a summary judgment granted in favor of the health maintenance organization and remands factual questions to the trial court; Herdrich finds a fiduciary duty and remands the case to determine whether that duty has been breached; and In re U.S. Healthcare remands claims for malpractice and vicarious liability to state courts rather than preempting them, pursuant to the Employee Retirement Income Security Act, into federal courts. The author analyzes the fallacious reasoning that underlies each decision and expresses concern that such logic may well find its way into other decisions.

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A Realistic Consensus Approach to the Insurance Law Doctrine of Reasonable Expectations, 35 TORT & INS. L.J. 3 (2000)
Peter Nash Swisher

During the last thirty years, a great number of articles have analyzed, questioned, and debated Professor (now Judge) Robert E. Keeton’s doctrine of reasonable expectations as applied to insurance coverage disputes. This article’s fundamental premise is that, despite all the debate and confusion surrounding the underlying theory and practice of the insurance law doctrine of reasonable expectations, a modern consensus approach has finally emerged within the academic community and the courts and among insurance law practitioners involving a realistic and viable application of the doctrine to the needs of contemporary American society. This consensus approach constitutes a practical “middle ground” synthesis of traditional, objective, and contractually based reasonable expectations principles grafted onto elements of the more modern Keeton formulation of the doctrine. Moreover, such an approach to the doctrine of reasonable expectations is both theoretically and practically defensible since contemporary legal rules of insurance contract interpretation must be both theoretically sound have practical application.

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Dial I for Insurance: Why The Mobile Phone Industry Should Call on Its Insurers To Cover Liabilities Arising from Radio Frequency Energy, 35 Tort & Ins. L.J. 3 (2000)
By: John T. Waldron III

The U.S. Food and Drug Administration has concluded that “the available scientific evidence does not demonstrate any adverse health effects associated with the use of mobile phones.” Despite the FDA’s present position, the mobile phone industry has recently been the target of several news stories surrounding the issue of whether the radio frequency energy transmitted through hand-held mobile phones leads to brain tumors and other health consequences. The mobile phone industry, contends the author, could become a target for claims alleging bodily injury arising out of mobile phone usage. As potential targets of new claims, companies should consider analyzing now whether they will be able to access their liability insurance programs to respond to any new lawsuits. Depending on their terms, the insurance policies contained in a company’s insurance program may provide both a defense for new lawsuits filed against the company and indemnification for any amounts paid in settlement of or judgment in those lawsuits. This article discusses the principal legal issues that the mobile phone industry will encounter in attempting to access standard-form comprehensive general liability insurance policies to cover these radio frequency energy claims.

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The Tort and Insurance Law Journal


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