Review Flashcards
Executive Branch
Federal level = president
State level = governor
Power to make laws or approve (sign) or disapprove (veto) proposed laws, bills
Legislative Branch
Lawmaking body
Congress
Laws are written and passed or denied
Judicial Branch
Court system
Laws are interpreted
Legal disputes are decided
Common Law
Body of principles and rules of action arising from usages and customs or from judgements of courts that recognize affirm and enforce custom.
Unwritten law in that it has never been enacted into statutory law
Stare decisis
Once a court has decided a dispute, the decision was used as a reference or precedent.
Following established precedent
Provides stability and continuity by eliminating inconsistencies from the law
Statues
Each law that is enacted by the legislative branch
How do courts decide cases?
Applying relevant laws to individual facts of each case.
Administrative agencies
Organizations created by law to carry out specific legislative activities
Judicial Review
Reviewing certain actions taken by federal and state administrative agencies
Protects personal interest that may be affected by an agency
Litigation
The practice of taking a legal action
Jurisdiction
Authority or power of a court to hear a certain case
Court of Original Jurisdiction
Court of first instance
Appellate Court
If cases are not satisfactorily settled they may be appealed to this court
Has no original jurisdiction
Exists only to review judgements made by courts with lesser authority
Doctrine
Principle of law established through past decisions and interpretations made by the courts
Jurisprudence
Process of distinguishing between what is legislation and what is doctrine
Lex fori
Law of the forum
Has to do with specific procedures that the parties to a case are required by the courts to follow
Lex loci
Law of the place
Used to determine the rights of the parties to an action
Federal Courts Jurisdiction
Federal laws
Raise federal questions
Constitution
When United States is a very plaintiff or defendant
Maritime jurisdiction and admiralty
Between residents of two different states who claim land under grants from different states
Between residents of different states when the dollar amount in damages is greater than $75,000
What federal court is established by the US Constitution?
US Supreme Court
District Courts
Courts that have original jurisdiction receive most of the cases in federal system
District Courts are considered trial courts at the federal system
Original jurisdiction in certain kinds of cases such as admiralty and maritime law and exclusive jurisdiction over some matters such as patent cases
Circuit Court
A decision made by a district court may be appealed to the appropriate circuit court.
These courts serve to relieve the Supreme Court of much of its appellate work
Appeals
An appeal may only be taken to determine questions of law not questions of fact.
Appeal may
Uphold lower court decision
Reverse/overturn lower court decision
Send case back to lower court for a new trial
State courts have exclusive jurisdiction over
All matters that are not under the jurisdiction of the federal courts
Courts of limited jurisdiction
Court only authorized to hear specific and limited types of cases
County courts
Municipal courts
Specialized courts such as probate
What branch of government is responsible for signing a bill into law?
Executive branch
Stati decisis means
The process of following established precedent
A written law is called
A statue
The court system
Settles civil controversies among individuals and punishes criminal offenses
Interprets and applies existing law in the process of deciding cases
Reviews certain actions taken by federal and state administrative agencies
A courts power and authority to hear a specific case is referred to as its
Jurisdiction
A principle of law established through past court decisions and interpretations is
Doctrine
What is the process of distinguishing between lawmaking and doctrine?
Jurisprudence
What are the 3 branches of the US Government?
Executive, legislative and judicial
What is the difference between the court if original jurisdiction and the appellate court?
Original jurisdiction hears case first
If cases not satisfactory settled can be heard by appellate courts
Federal Court System
Supreme Court of the United States
⏫
Specialized US Courts Appeals
Federal Of Appeals From state
Courts. 11 Circuits Courts
⬆️ Administrative Agencies ➡️ US District Courts
Typical State Court System
State Supreme Court ⬆️ State Court of Appeals ⬆️ District Courts ⬆️ Municipal ➖County Courts ➖Specialized Courts
Public Law
Governs the relationship between government and the individual
Includes: Criminal law International law Constitutional law Administrative law
Private Law
Governs the relationship between individuals or between individuals, corporations, partnerships and other legal entities.
Also known as civil law
Business affairs
Transfer of property
Collection of money for persons injured through the fault of others
Criminal Law
Most common form of public law is criminal law
Criminal law defines the acts that society considers so harmful to the public welfare that government is responsible for prosecuting and punishing perpetrators.
International law
Involves relationships between nations
Constitutional Law
Involves problems arising in relation to the U.S. Constitution and state constitutions
Administrative Law
Involves rules developed by administrative agencies of the government such as the Federal Trade Commission(FTC), Federal Communications Commission(FCC), & the Food and Drug Administration(FDA)
The law exists on 2 levels
Federal and state
Federal Law
Includes the entire country
State Law
Applies specifically to the state in which the law is enacted
Federal Statutes
Written laws that are developed and enacted by the federal legislative body, US Congress in an attempt to focus on the public interest
Sherman Antitrust Act
1890
Federal statute that prohibited trade restraints and disallowed the creation of monopolies
Applied to any business that was subject to federal law in any state.
Insurance at the time was not subject to federal law
McCarran-Ferguson Act
Provided insurance business with a partial exemption from the Sherman Antitrust Act.
Otherwise sharing certain information-sharing practices of insurers such as sharing loss statistics to determine rates would of been found in violation of federal law
State Statutes
Written laws enacted by a state legislature
May be more strict than federal statutes
Regulations
Define specific practices that must be carried out to meet the statute’s intent
Administrative Procedure Act (APA)
Outlines the procedures that federal administrative agencies must follow when drafting regulations
Model State Administrative Procedure Act (MSAPA)
Most states follow these guidelines
Provides a notice of intent to issue a regulation
Provides an opportunity for public comment on the proposed regulation
Publish the final regulation
Department of Insurance
State administrative agency that not only develops insurance regulations but also serves in the adjudication of disputes involving insurance.
Uniform laws
Laws that are basically the same for every state
Uniform Commercial Code
Adopted by all states except Louisiana
Regulates commercial transactions and the sale of goods among states
Legislative Act
Group of laws relating to one subject that are written and presented at one time
Workers Compensation Insurance
Operating an automobile
Unfair Claims Settlement Practices
Provides protection to the public by setting guidelines for handling claims
Describe prohibited practices
Impose penalties for anyone who engages in any of the listed practices such as fines, license suspension or revocation, jail sentences
Penalties become more severe if violations were willful
Civil Law
Covers the rights and duties of members of society with respect to each other
A violation is called a civil offense
Involves legal action taken by one individual or group against another to recover for damages suffered from a private wrong
Contract
Voluntary agreement made by 2 or more persons that is enforceable by civil law
Contract Law
Law that ensures a contract is legally valid and that legal obligations of the contract are carried out
Tort
A civil wrong that arises from the violation of a legal or natural right that is not created by a breach of contract
Tort Law
Concerned with compensating an individual for the losses resulting from the conduct of others that is considered to be socially unreasonable
Compensation for damages is given in the form of money
Tortfeasor
The party that commits a tort
The wrongdoer
The insurance industry is primarily regulated by
Individual state governments
What type of law involves cases are n which the state prosecutes an individual, in the interest of society, for violating a law?
Criminal Law
What is the most common public law?
Criminal law
What are two types of civil law?
Contract
Tort
Negligence
The lack of reasonable care that is required to protect others from unreasonable chance of harm
Legal liability
Liability imposed by law, as opposed to liability arising from an agreement or contract
Reasonable Care
Includes the due care that a reasonable person would provide in order to eliminate the chance of harm to others
Negligence per se
An act that is presumed to be negligent as a matter of law, such as an action that violates a statute
Degree of care
Extent of the legal duty owed by one person to another
Reasonable person standard
Principle of law that states each person must behave like a prudent person, following those ordinary considerations that guide human affairs.
Also known as prudent person standard
Four Elements of Negligence
There was a legal duty owed
There was a breach of legal duty owed
The party sustained actual damages as a result of the breach of legal duty owed
The breach of legal duty owed was the proximate cause of the loss
Proximate Cause
Action that in a natural and continuous sequence produces a loss
Gross Negligence
Total disregard for the safety of others
Reckless, wanton and willful misconduct
Guest Statutes
Law that prohibits a passenger Ina car from suing the driver for injuries caused by the driver unless the actions of the driver are willful and in the complete disregard of the safety of others
They do not apply in every state
Survival statutes
Allows deceased person’s estate to recover damages from the liable third party for expenses incurred between the time of injury and the time of death
Contributory negligence
Common law defense against negligence that states that if an individual contributes to his or her own loss in any way, then someone else cannot be held liable for the loss
Comparative Negligence
Legal principle that reduces a plaintiff’s damages to the extent of the plaintiff’s degree of negligence.
Negligence on the part of the plaintiff does not altogether bar recovery
Assumption of risk
Known danger exists
Voluntarily expose self to risk
Defense against liability based on the common law principle that a person who has been made aware of a risk and voluntarily exposes himself or herself to the risk assumes the risk of loss and cannot attitude the loss to someone else
Last clear chance
Possible defense to a charge of contributory negligence, provides that the party who has the last clear chance to avoid damage or injury to another is liable for any resulting loss, because negligence in failing to take this opportunity is the proximate cause of the loss
Avoidable consequences
Mitigation of damages
Denies recovery for any damages that could have been avoided by reasonable conduct on the part of the person who suffered a loss
Intentional torts
An action performed by an individual with a deliberate intent to harm another person or another person’s property
Absolute liability
Liability imposed for an event that injuries the public but which does not involve negligence or the intent to cause harm
Involves certain activities that could be judged especially hazardous
An individual may be held liable for damages of another even though the individual was not negligent
Vicarious liability
An individual might be responsible for the negligent acts of another person
Also known as imputed liability
Agency
Employer/employee relationship arises when one person, an agent, acts on behalf of another, a principle
A principle is liable for the acts of the agent because the agent acts on behalf of the principle.
Independent contractors
When the employer does not control the details of the job
The negligence of the contractor would not be inputed on the employer
Family purpose doctrine
Doctrine under which the owner of an automobile is held liable for damages resulting from the negligence of an automobile operated by members of his or her family
Ownership statute
Law that imposes vicarious liability on automobiles owners for the actions of others who drive the owner’s car
applies to anyone who drives the vehicle with the owner’s permission
Bailment
Arises when a bailor transfers possession of personal property to a Bailee for a specific purpose with the agreement that the property will be returned to the bailor
Goes into effect when the bailor delivers the property into the possession of the Bailee and ends when the Bailee returns the property
Bailor
Person who transfers possession of personal property to a bailee
Bailee
Person who takes possession of a bailor’s property for a specific purpose
Invitee
A person who is invited onto premises for some purpose involving potential financial benefit to the property owner
A property owner is most likely held liable for injury to the invitee
Licensees
When a visiting party is present on the property of another for his or her own convenience and is not forbidden to be there
Duty owed by property owner is less than that owed for a invitee
Attractive Nuisance
An artificial structure or condition that is especially attractive to children and capable of resulting in injury to children
A property owner must use ordinary care to protect trespassing children from injury
No-fault concept
Allows for prompt and direct payments to automobile accident victims regardless of who was at fault for the accident
Modified plan
Limits right to sue but doesn’t actually eliminate it
Injured person is entitled to recovery of medical expenses and loss wages from his or her own insurance company but can sue in case of serious injuries
Add-on plan
Does not limit the right to sue
Expands Medical Payments coverage offered under a typical auto policy
Voluntary plan
Is no created by legislation
Insurers have the option of offering no-fault benefits and insureds have the option of purchasing them
Specialized Courts in Federal Court System
Court of Claims Customs Court Court of Customs and Patent Appeals Tax Court Bankruptcy Court Court of Military Appeals
Courts of Limited Jurisdiction
County courts
Municipal courts
Specialized courts such as probate
Criminal law
Encompasses standard of conduct by defining what acts are harmful to the public welfare
Government is responsible for prosecution violator
Affirmative defenses
Assumption of risk
Last clear chance
Avoidable consequences- mitigate damages
Contract
Legal agreement between 2 competent parties that promises a certain performance in exchange for a certain consideration
The insured is what party in a contract?
1st party
The insurance company is what party in a contract?
2nd party
Contract law
Ensures that a contract is legally valid and that the legal obligations of the contract are carried out
Privity of Contract
The relationship that arises when 2 parties form a contract
Breach of contract
Failure to perform a contract without legal excuse
Elements of a valid contract
Competent parties
Legal purpose
Offer and acceptance (agreement)
Consideration
Competent party
A person who is a minor, insane or under the influence of alcohol or drugs is considered incompetent
Legal Purpose
A contract that is against public policy or in violation of constitutional or statutory law is not legally enforceable
Offer and Acceptance
Offer is promise that requires an act or another promise in exchange
Acceptance occurs when the other party agrees to the offer or does what is proposed in the offer
Consideration
A thing of value exchanged for the performance promised in the contract
Indemnity
When a loss occurs, an individual should be restored to the approximate financial condition he or she was in before the loss, no more no less.
Insurable interest
Lawful economic interest in the safety or preservation of the subject of insurance from loss or destruction
An insurance policy is what kind of nature?
Personal
It does not insure property, it insures the person who owns the property
Aleatory
An insurance policy is aleatory
It is contingent on an uncertain event, a loss
Adhesion
One party has greater power over the other party in drafting the contract
The insurance company ultimately draws up and issues the policy
Ambiguity
Occurs when the insurer does not make the terms and agreements of the policy perfectly clear
Because an insurance policy is a contract of adhesion, the courts usually resolve any ambiguity in policy wording in favor of the insured
Unilateral
On sided contract
Only the insurance company is legally bound to perform its part of the agreement
If a insured pays a premium and a loss occurs, the insurer is legally bound to pay for loss under terms of the policy
If insured doesn’t pay insurer can cancel policy but cannot take insured to court for breaking contract
Contract of utmost good faith
Insurance company relies on the truthfulness and integrity of the applicant when issuing a policy
Fraud
A deliberate misrepresentation that causes harm
For what reasons can a contract be voided
Fraud
Misrepresentation
Concealment
Breach of warranty
Insurance fraud
Insurance fraud may be committed to:
Obtain an insurance policy (contract fraud)
Be charged a lower premium (premium fraud)
Obtain payment on a claim for a loss that never occurred or for a loss that has been padded or exaggerated to receive a higher claim payment (claim fraud)
Representations
Statements that the applicant believes are true
Misrepresentation
Written or verbal misstatement of a material fact involved in the contract on which the insurer relies
Differs from fraud in that it involves only one particular fact rather than an all-out effort by one party to deceive and cheat the other
Policy can only be voided if the misrepresentation concerns a material fact
Concealment
Involves withholding a material fact
Warranties
Specific agreement between two parties to a contract that becomes a part of the contract
Affirmative Warranty
States that certain conditions exist when the contract is made
Promissory warranty
States that a certain condition will continue to be met or that certain things will be done during the policy period
Subrogation
Substitution of one party in place of another with respect to a legal right or claim
Waiver
Intentional relinquishment of a known right
Express waiver
Written or oral statement that specifically relinquishes a right
Implied waiver
Implied by misleading conduct
Estoppel
If an insurance professional intentionally or unintentionally creates the impression that a certain fact exists when it does not and an innocent party relies on that impression and is damaged as a result, the insurance company will be estopped or prevented from denying this fact
Four elements of fraud
Someone who deliberately lies
The intent of the lie is for someone else to rely on that lie
Another person relies on that lie
The other person suffers harm as a result of relying on that lie
Claim
A demand by an individual or cooperation to recover under an insurance policy for loss arising out of events covered by the policy
1st party claims
Filed by insured
Recover under insured’s own coverage
Third party claim
Filed by someone who is not an insured
Make a claim against insured to recover under insured’s policy
Unfair claims settlement practices laws
Ensue that insurance claims are handled promptly and fairly
NAIC Model Unfair Claims Settlement Practices
National Association of Insurance Commissioners
An organization made up of individual state insurance commissioners whose purpose is to promote uniformity in regulation by drafting model laws and regulations
The recommendations are non-binding on individual states, but most states use these recommendations as the basis for developing their insurance laws
First party bad faith lawsuits
Filed by insured
Bad faith handling of a first party claim
Third party bad faith lawsuit
Filed by insured for the bad faith handling in the defense or settlement of a third-party claim against the insured
Comparative bad faith
Also known as contributory bad faith or insured bad faith
If an insurer can show that the insured also acted in bad faith in a claim investigation, the insurer may be able to have the bad faith lawsuit dismissed
Declaratory judgement
The insurer legal staff files an action with a court to determine whether coverage under the policy exist last and what rights of the parties are under the policy
Misrepresentation in claims
There is no requirement that the insurer rely on the misrepresentation
Claim fraud
Reliance by the insurer is not necessary for fraud to exist
Innocent co-insureds
In most cases, innocent co-insureds are not allowed to recover on the theory that they probably knew about the insured’s activities
Lex loci delicti
States that the law where the loss occurred applies
Rule of Significant Contacts
A court determines which state has a greater interest in protecting its citizens and applies that state’s law
Res ispa loquitur
The thing speaks for itself
Creates a presumption of negligence without any exact, obvious or definite proof
Only applied when actual cause of loss is not known
Elements
Negligence usually involved in such a loss
Object that caused loss in defendant’s exclusive control
Injured party did not contribute to loss
Prima facie evidence
Evidence is available that is sufficient on its face to prove a given fact
Excited utterance
Declaration or exclamation made spontaneously or immediately following an event that serves to establish the facts of the event
This is an exception to the hearsay rule
Assumption of risk
Last clear chance
Avoidable consequences- mitigate damages
Principle of single recovery
Because only a single lump sum judgement is usually allowed in a claim for damages, all damages must be considered, past and future
Actual Cash Value
ACV=Replacement cost - depreciation
Broad evidence rule
Requires that when determining actual cash value, all evidence that could be reasonably be used to estimate the value of the property at the time of the loss must be taken into consideration
Market Value
Amount a willing buyer would pay for the property.
Replacement cost
Cost to replace a damaged or destroyed item of property without a deduction for depreciation
Usually used for losses to buildings
Sometimes for personal property
Reproduction cost
Cost to rebuild the building at same location using its original specifications and plans
Value to owner standard
Requires all relevant facts be taken into consideration and Insured is allowed to testify as to the value of the property
Valued policy laws
The value of the property listed on the insurance policy is the amount that must be paid if the property is destroyed, regardless of the property’s value at the time of the loss
Compensatory Damages
Reimburse the injured party only for losses that were actually sustained
Special damages
Special damages include all direct and specific expenses involved in a particular loss such as medical expenses, lost wages, funeral expenses, and cost to repair or replace damaged property
General damages
Compensate for such things as pain and suffering, disfigurement and loss of consortium
Punitive damages
Exemplary damages
Designed to punish if the defendant acted wantonly or willfully in causing the plaintiff’s injuries
Nominal damages
May be awarded to acknowledge the damage and vindicate a right
Usually a very small amount
Collateral source rule
Provides that a plaintiff’s award for damages cannot be modified even if plaintiff has other available sources
If a court considers bad faith to be a tort instead of a contract violation, the insurance company
May be held liable for more than it was originally obligated to pay under the policy
Wha can invalidate an insurance claim?
Misrepresentation
Fraud
Concealment
Who is the 1st party in a claim?
Insured
Who is the 3rd party in a claim?
Plaintiff
Who is the 2nd party in a claim?
Insurance company
Bad faith
Violates the insurance contract
What is the first step of a lawsuit?
The complaint is the first pleading of the lawsuit
Pleading
Legal papers filed by the parties to a court action that set forth the facts of the case and issues to be considered
Complaint
Informs the court and the defendant:
Why the plaintiff is suing
What legal recourse he or she expects
Why the plaintiff has legal grounds to sue the defendant (cause of action)
Why the court has jurisdiction over the dispute
Summons
Documents that notify a defendant of a complaint and requires the defendant to answer the complaint
Motion
Request
Motion to dismiss
Motion filed by defendant to a lawsuit to dismiss the case on grounds that the plaintiff does not have legal grounds to sue
Demurrer
Another term for motion to dismiss
Motion for summary judgment
Motion filed by the defendant to a lawsuit to dismiss the case on the grounds that there is no legal remedy provided under the defendant’s complaint
Discovery
Pretrial process where each party in the case finds out as much as possible about the evidence the other party plans to present at trial
Depositions
Oral examination of witness under oath to obtain information about a legal matter.
Is recorded by a court reporter
Interrogatories
Written questions that require written answers
Motions to produce
Requests to produce physical evidence or documents
Affidavit
Voluntary written statement under oath
Affiant
Person who makes an affidavit
False swearing
Making a false statement of a material fact while under oath during a deposition or while making an affidavit
Crime in all states
In a jury trial, the jury decides
Question of fact
In a jury trial, the judge determines
Questions of law
In a trial by judge, the judge determines
Both questions of fact and questions of law
Absolute privilege
Legal principle that prevents a person from suing for defamation based on statements made in certain situations.
Court proceedings are subject to absolute privilege
Burden of proof
Requirement that a plaintiff prove his or her claim against a defendant
Preponderance of the evidence
Requirement in civil proceedings
Requires that plaintiff evidence has greater credibility than the defendant
Reasonable doubt
Burden of proof in criminal cases
Direct evidence
Introduced to prove a specific fact and verifies that fact unless the other party introduces evidence to the contrary
Circumstantial evidence
Evidence that proves another fact through inference
Documentary evidence
Various types of documents and papers used as evidence such as police reports, letters and records
Testimonial evidence
Explanation or description by a witness of what he or she knows as fact
Physical evidence
Demonstrative evidence
Evidence of a physical nature such as a damaged car part or skid marks at an accident
Admissibility of evidence
Material: evidence must tend to prove or disprove a matter at issue in the case
Relevant: must relate to the claim, not to some unrelated matter or event
Competent: the person who provides the information must be fit or qualified to do so
Judicial notice
Acceptance by a judge of the truth of a certain fact without requiring evidence to support it
Adverse witness
Witness whose testimony does not support a particular party’s case
Friendly witness
Witness whose testimony supports a particular party’s case
Expert witness
A person who has specialized knowledge, education , training or experience in a certain area, not possessed by the average person
Hostile witness
A witness who is openly biased against one of the parties
Dismissal with prejudice
Dismissal of cased based on its merit or lack of merit.
Further legal action is prohibited
Dismissal without prejudice
Dismissal of a case that is not based on its merits
Further legal action on case is permitted
Additur
Occurs when a judge increases the jury’s damage award
Remittitur
Occurs when a judge decreases the jury’s damage award
Directed verdict
The judge tells the jury what decision it must make
Bifurcated trials
Trial that is divided into two parts
Questions of fact are decided separately from damages
Verdict
Finding of fact
Reformation
The contract will be changed to reflect the true intent of the parties when they made the contact.
Is common if a mistake was made when an oral agreement was put into writing
Rescission
The contract is thrown out or cancelled as if it never existed.
Can be used in cases of fraud
Specific performance
The party who breached the contract is required to perform the actions promised under the contract
Injunction
The party who breached the contract is prevented from performing the actions promised under the contract elsewhere during the term of the contract
Appeals
An appeal may only be filed if one of the parties believes the lower court interpreted or applied law incorrectly
Brief
Written statement that presents legal arguments on particular legal issues
A defendant’s response to a plaintiff complaint is
An answer
A motion to dismiss is based on the defendant’s belief that
The plaintiff does not have legal grounds to sue
What is the first pleading in a lawsuit?
Complaint
Three primary discovery methods
Depositions
Interrogatories
Motions to produce
Who has burden of proof in a trial?
Plaintiff
Three types of direct evidence
Documentary
Physical (demonstrative)
Testimonial(oral)
What are the 3 requirements for evidence to be admissible in court?
What are the 3 requirements for evidence to be admissible in court?
Material
Relevant
Competent
What are possible remedies that a judge or jury can use besides awarding damages
Reformation
Rescission
Specific performance
Injunction
