Last Class Review
• Waiver, estoppel, and reformation
• Doctrine of Reasonable Expectations
• Taylor v. State Farm
– Parole Evidence (Corbin/ Williston)
– Corbin’s proposed rule
• Pacific
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An insurance contract is like any other
To determine intent, we construe the instrument as a whole.
Use everyday language
Ambiguous if suggests two meanings to layperson.
If ambiguous, extrinsic evidence for intent and trade usage.
First Party Coverage Issues
• Uniform Determination of Death
– Determination of Death. An individual who
has sustained either (1) irreversible cessation
of circulatory and respiratory functions, or (2)
irreversible cessation of all functions of the
entire brain, including the brain stem, is dead.
A determination of death must be made in
accordance with accepted medical standards.
Crobons
• Marvin Wyatt: good guy or bad guy?
– Bad guy. Why?
• Pulls the old switcheroo
– What do we get out of the case?
• Rebuttable presumption is death certificate
• Can be rebutted with evidence of loss of brain
function or other evidence that demonstrates death
was at a different time (note 2)
• Note 4: death and taxes are certain. Fortuity?
• How is this battle fought practically?
Nielsen
• Suicide
– Facts
– “Sane or insane?
– Question: does the REAL cause matter?
– Most states have statute support
Nielsen (note 1)
– Foolish but risky (note 4)
Maryland Law
• Maryland defines suicide: Md. Code Ann.,
Insurance Section 16-215
• Facts of Fister v. Allstate Life Ins. Co., 366
Md. 201 (2001)
– Looking for someone to kill her
– Hires friend who testified this is how it went
down: “'Let's do it! Let's do it! Let's do it!' She
said, 'Larry, for the first time in your life, do
something right, help me! Help me!' And before
I knew it, I had pulled the trigger."
• Larry gets five years
• Does Larry get anything? He was a
beneficiary.
– No. Contingent beneficiary is estate
• Maryland definition of suicide: Does not
include hiring someone to kill you: heirs
recovery over $1.6 million
Incontestability
• Maryland law: "There shall be a provision that
the policy (exclusive of provisions relating to
disability benefits or to additional benefits in the
event of death by accident or accidental means)
shall be incontestable, except for nonpayment of
premiums, after it has been in force during the
lifetime of the insured for a period of two (2)
years from its date of issue."
• Most states have similar law
Crawford
• Facts:
– More than two years later, Ms. Crawford dies
– Plaintiff and decedent makes
misrepresentations:
• 32 hours a week
• Earned a salary
• Worked for business
• Is eligibility a threshold issue?
– How about termination of employment?
Lemke
• Key question: what is required to evidence
intent to change beneficary
• Facts:
– Writes to cut his wife out as his beneficiary
– What is compelling about the language?
– What is the test? Either strict compliance or…
• Intent
• Affirmative action
Problem with Oral Statements
• People change their minds. Often.
Murdering the Insured
• Facts
– Wife murders husband
– Wife’s sister is secondary beneficiary after
wife
• Sister is raising stepchild
• Sister and murderer are not close
– Does this matter?
Possible Rules to Deal
with Indirect Hookup
• What is an indirect hookup?
– Killer gets a benefit from the
killing
• Possible rules to deal with:
– Georgia bright line rule
– Factual determination – is the
killer getting an indirect
benefit.
– Faulknerian opacity
• Theme of the day: human
relationships are complicated
Definition of Accidental Death
• Facts: man dies during an operation
unexpectedly
– Cause of death: cardiac arrest
• 58 years old; 75 pounds overweight; high blood
pressure; possible diabetic; several martinis; pack
and a half
Definition of Accidental Death
• Facts: man dies during an
operation unexpectedly
– Cause of death: cardiac arrest
• 58 years old; 75 pounds
overweight; high blood pressure;
possible diabetic; several
martinis; pack and a half
• Accidental results v. accidental
means
– Serbonian Bog
• Difference in this case and how
Maryland looks at insurance
contracts
• What was the parol evidence?
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