Insurance Law, Part II Flashcards
Products liability
A manufacturer’s or seller’s liability for harm suffered by a buyer, user,
or bystander as a result of a product that has a dangerous manufacturing
defect or design defect or that is not accompanied by a warning of
an inherent hidden danger.
Express warranty
An explicit statement about a product by the seller that the buyer or
other user may rely on and that provides a remedy in the event the
product does not perform as claimed.
Implied warranty
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 of merchantability
An implied warranty that a product is fit for the ordinary purpose for
which it is used.
Uniform Commercial Code (UCC)
Legislation for commercial transactions that provides the trade creditor
certain rights and legal remedies in a situation in which a buyer
defaults.
Active negligence
A plaintiff’s voluntary use of a defective product with knowledge of
the potential danger resulting from the defect.
Assumption of risk
A defense to negligence that bars a plaintiff’s recovery for harm
caused by the defendant’s negligence if the plaintiff voluntarily
incurred the risk of harm.
Passive negligence
A plaintiff’s failure to discover a product defect or to guard against a
possible defect.
Consequential damages
A payment awarded by a court to indemnify an injured party for losses
that result indirectly from a wrong such as a breach of contract or a
tort.
Consent-to-settle clause
An insurance policy provision, usually found only in professional
liability policies, that requires the insurer to obtain consent from the
insured before settling a claim.
Corporation
An entity organized under law and entitled to the same rights as a
person, distinct from its owners.
Respondeat superior
The legal principle under which an employer is vicariously liable
for the torts of an employee acting within the course and scope of
employment.
Special damages
A form of compensatory damages that awards a sum of money for
specific, identifiable expenses associated with the injured person’s loss,
such as medical expenses or lost wages.
Loss of wages and earnings
The compensatory damages to compensate a plaintiff for any loss of
income directly related to a tort.
General damages
A monetary award to compensate a victim for losses, such as pain and
suffering, that do not involve specific measurable expenses.
Pain and suffering
Compensable injuries that are difficult to measure, such as physical
and mental distress and inconvenience associated with a physical
injury.
Emotional distress
A highly unpleasant mental reaction resulting from another person’s
conduct, for which a court can award damages.
Wrongful death action
A legal cause of action that exists for the survivor of the deceased.
Survival statute
A statute that preserves the right of a person’s estate to recover damages
that person sustained between the time of injury and death.
Specific performance
A court-ordered equitable remedy requiring a party to perform a certain
act, often—but not always—as a result of breach of a contract.
Injunction
A court-ordered equitable remedy requiring a party to act or refrain
from acting.
Mitigation of damages
A duty owed by an injured party to a claim to take reasonable measures
to minimize or avoid additional injury or loss.
Structured settlement
An agreement in settlement of a claim involving specific payments
made over a period of time.
Vicarious liability
A legal responsibility that occurs when one party is held liable for
the actions of a subordinate or associate because of the relationship
between the two parties.
Partnership
A for-profit business entity jointly owned by two or more persons who
share ownership and profits (or losses), although not necessarily on an
equal basis.
Joint tortfeasors
Two or more parties who commit a tort together in circumstances that
can make it difficult to distinguish the fault or harm caused by one
wrongdoer from that caused by another.
Joint and several liability
The liability of multiple defendants either collectively or individually
for the entire amount of damages sought by the plaintiff regardless of
their relative degree of responsibility.
Enterprise liability (industry-wide liability)
An expanded liability concept requiring each member of an industry
responsible for manufacturing a harmful or defective product to share
liability, when a manufacturer at fault cannot be identified.
Alternative liability
An expanded liability concept that shifts the burden of proof to each
of several defendants in a tort case when there is uncertainty regarding
which defendant’s action was the proximate cause of the harm.
Market share liability
An expanded liability concept that applies when a product that has
harmed a consumer cannot be traced to a single manufacturer; all
manufacturers responsible for a substantial share of the market are
named in the lawsuit and are liable for their proportional share of the
judgment.
Concert of action
An expanded liability concept that applies when all defendants acted
together or cooperatively.
Conspiracy
An expanded liability concept that applies when two or more parties
worked together to commit an unlawful act.
Joint venture
A business association formed by an express or implied agreement of
two or more persons (including corporations) to accomplish a particular
project, such as the construction of a building.
Negligent entrustment
The act of leaving a dangerous article with a person who the lender
knows, or should know, is likely to use it in an unreasonably risky
manner.
Negligent supervision
A parent’s failure to exercise reasonable control and supervision over
his or her child to prevent harm to others.
Family purpose doctrine
A liability concept that holds the owner of an automobile kept for the
family’s use vicariously liable for damages incurred by a family member
while using the automobile.
Good Samaritan law
A statute providing that a person will not be liable for damages as a
result of rendering aid to an injured person, without compensation, at
the scene of an accident.
Class action (class action lawsuit)
A lawsuit in which one person or a small group of people represent the interests of an entire class of people in litigation.
Mass tort litigation
A class-action suit based on tort law rather than on contract law.
Noneconomic damages
Pain and suffering or mental anguish.
Underwriting cycle
A cyclical pattern of insurance pricing in which a soft market (low
rates, relaxed underwriting, and underwriting losses) is eventually
followed by a hard market (high rates, restrictive underwriting, and
underwriting gains) before the pattern again repeats itself.
Contribution
The right of a tortfeasor who has paid more than his or her proportionate
share of the damages to collect from other tortfeasors
responsible for the same tort.
