Aic 32 Liability Claims Practices Flashcards
Manifestation rule
The rule stating that occurrence takes place at the time the injury or property damage is discovered
Exposure rule
Under their exposure rule, and occurrence takes place at the time of the first exposure to damage producing elements
Successive joint tort feasts
Two separate acts
Concurrent joint tort feasts
When the independent, negligent acts of tow or more parties combine to produce a single injury, the parties are concurrent joint tortfeasors
Disparagement of reputation
is communication of the false statements about the business practices of a person or company that damage the company in the public eye.
Libel
Written defamation
Slander
Oral defamation
Assault
The threat of force against another person that creates a well-founded fear of imminent harmful contact
Members of joint enterprise
Describes a relationship where vicarious liability is likely to exist
claims against the manufactures must mean four rules of
1)Numerosity 2)commonality 3)typicality and adequacy of representation
Implied warranty
Is an obligation that the courts impose on a seller to warrant certain facts about a product even though not expressly stated by the seller
A seller is only liable under strict liability if
1) the product has a defect,
2) the defect is unreasonably dangerous 3) the defect was the proximate cause of the claimants injuries
4) the product was used in a manner reasonably anticipated
Under a reservation of rights, the insured should
Inform the insured of all information relevant to the insured’s defense, including a realistic and periodic assessment of the insurance chance to win or lose the pending lawsuit
Declaratory judgment action
A method of using the court System to resolve questions about whether coverage applies or about rights and duties under a policy
A formulate method for valuing claims might lead to early settlement because the formula method allows:
For a simple approach, assuming that the special damages have a certain ratio to pain and suffering
Why use an expert prior to recommending a reserve increase
Experts can compute the complex calculations of loss of earnings as well as determine future costs for medical and living expenses
General purpose of wrongful death actions was to
Provide survivors of the deceased with the same standard of living that would have been provided if the deceased had lived
An expert system normally features
A user interface that allows the user to present questions or answer prompts to help develop values.
When forum shopping a venture , the plaintiff woukd prefer to file suit in
An urban venue which usually grants higher words
In settlement agreements the consideration by the insurer is usually some monetary amount. the claimant’s consideration is
Giving up the right to sue
Advantage of having parties caucus in a mediation session
The caucus may permit mediators to speak frankly about one party’s behavior and how it may be counter productive to negotiations.
In order for a settlement agreement to be valid contact the agreement must include
An offer, acceptance of the offer and consideration to the parties.
After making their most realistic offers, parties often find the differences small and may conclude the negotiation without going forward with arbitration
Baseball arbitration
Online blind bidding
If the offer and demands overlaps, most online providers will settle the claim automatically by splitting the difference, if the numbers are witching 30% or $5k
Policy holder releases
Are used when an insider or claimant is paid for a claim when coverage is doubtful
The same elements that exist for a successful negotiation also exist for adr
Communication
Preparation
Evaluation
Power
A pleading that responds to the plaintiffs demand by either denying the allegations in the plaintiffs complaint or confessing to them is the
Answer
An insurer benefits from good litigation management in the following ways
reduced and more consistent legal fees, better case assignment to the needed legal experts, better relationship with legal counsel, and reduced administrative costs and processes
The tripartite relationship is known as the
Three points of the defense triangle, which includes the insurer, the insured, and the defense counsel
A motion that may be filed by the legal counsel for defendant, during trial, to move to dismiss the complaint. This ends of the case before deliberations begin do to lack of supporting evidence by the plaintiff
Directed verdict
Asks the judge to rule in favor of one party even though the verdict favored the other party. This motion is granted only of the weight of the evidence was clearly in favor of the losing party.
Motion for judgment notwithstanding the verdict .
Motion that asks the judge to rule in favor one party even though the verdict favored the other party
Judgment n.O.v
A defense commonly raised in strict products liability claims is
Assumption of risk
When bailment exist
Courts have declared almost without exception that the Bailee may not exempt itself from all liability with a disclaimer.
The CGL definition of property damage includes
Loss of use of tangible property not physically injured
A claims representative must Collect, verify and compare
Information gathered in an investigation to make a liability determination. This will also hp to determine what additional information may be needed
Battery
Element of unwanted touching alleged in a sexual harassment claim
Assault
May be a physical or verbal (or even implied) threat of causing injury or death.
An actual notice in premises liAbility occurs when
The land possessor is directly given the information about a hazard on the premises
Declaratory judgement action
A method of using the court system to resolve questions about whether coverage applies or about rights and duties under a policy
Negotiating during a trial can be dangerous, particularly if the plaintiff case appears stronger
Since the insured defense may not prevail at trial, it would be prudent to negotiate the claim for a fair amount
An owner and leases of an aircraft may :
Be held responsible for damages caused by the operation of an aircraft. The owner must exercise due care when leasing an aircraft. Ordinary negligence may not apply
A homeowners policy allows coverage for
1) rental for use an office, school, studio or private garage
2) rental on occasional basis: and
3) renting rooms to no more than two people
All details about the claimant would be factors in determining the value of the claim including
1) age
2) activities/hobbies/life style
3) type of scarring
4) amount and location of scarring
5) loss of use of appendages
6) psychological injuries
On average, urban areas :
Award higher amounts that rural areas
Courts determining that only the policy in force at the time that the injury or property damage is discovered must cover the claim is
A description of the manifestation rule
Willful and wanton acts go beyond the scope of mere negligence when
They are committed knowingly , intentionally, or with reckless disregard for others.
In a state that allows for recovery based on economic loss in the death of a child, a wrongful death action may assert a claim for
The intrinsic value of a child
An obligation that the courts impose on a seller to warrant certain facts about a product even though not expressly stated by the seller
Implied warranty
Damages under premises liability can be special or
General damages. The damages must be caused by the defendants breach of
Duties
And
Be compensable
The question of causation in negligence cases often depends on whether the consequences were
Reasonably foreseeable
The subjective standard :
Looks mainly at what the insured intended and expected. The objective standard is based on what a reasonable person would expect from a particular act
Bailees may limit their liability with disclaimers if
They are not negligent for the loss and give proper notice
In an exculpatory agreement,
a participant in an activity signs a release of liability for activities specified in the contract
If a retailer is required to pay damages to a claimant, an ________ against the manufacturer would assist in the retailer making the recovery from
The manufacturer
Action of indemnification
A warranty of fitness for a particular purpose is created when a seller
Who knows what a buyers wants and how the burr would use the product, makes a reccommend drip that they buyer relies on
Products liability
The liability of a manufacturer, a distributor , a retailer, or another type of seller that, because of a product defect , harms a product user, consumer, or bystander
With regard to products liability, a claimant can recover from a retailer on the theory of
Breach of warranty
The type of evidence that relates to the reliability of the source of the evidence and whether it is adequate to justify admission into a court is known as
Competent evidence
______ usually contain a limit of liability for damages only and not defense
Professional liability polices
Actions that may trigger the duty to defend include
Arbitration proceedings
In assessing the claimants attorney, the CR should consider:
- attorneys trial experience
- type and severity of the cases that the attorney usually handles
- the aggressiveness with which the attorney handles cases
- the attorneys reputation in the legal community
In a _____, the person representing the decedent makes claim for what the decedent would have recovered had he/she lived
Survival action
Factors that should be considered when determining the amount and terms of a structured settlement
1) life expectancy of the claimant
2) likely cost of future medical needs
3) cost of reasonable monthly living expenses
4) cost of dependent needs
5) legal fees
6) lump sum for special contingencies
Complex claims that will require extensive discovery are usually suitable for
Mediation
Major concerns that are associated with a third party billing audit are:
- form over substance
- arbitrary judgments
- same standard of review for all files regardless of difference
- differing litigating and billing guidelines add possibility for mistakes
- increased in overhead costs internally
- increased time in receiving payment
- lacking for appeal process
Defense lawyers ethical obligations in relation to fees:
- A fee must reasonable
- The insured client must be informed of any material conflict
- Lawyers should give discounts when work involved in a case has been recycled from work performed for another client
Important elements of a litigation plan for a case involve :
Setting case objectives
Evaluating case factors
Establishing a case budget
Most fundamental and effective litigation management technique is the
Case budget
An alternative fee arrangement must be designed to enable the insurer and defense counsel to discharge the contractual obligations
Owed by the insurer and the ethical obligations owed by the defense counsel
4 main tasks that a CR is responsible for when handling a claim involving litigation
- understands the costs of litigation
- the role they have in controlling the litigation costs
- the phases of litigation
- terminology used in litigation
