Insurance law in the USA is mainly governed at the state level.

State Legislatures

In the first instance, this involves the state legislature, which promulgates laws related to insurance. These laws form legal frameworks within the state regulating the development and sale of insurance products, and the conduct of people and businesses in the insurance industry. This body of laws is often referred to and compiled in “codes”.

State Agencies

Typically, the legislated code delegates significant authority to state executive officials to develop the regulatory framework in the state. This authority is usually located in an agency, or “insurance department”, the head of which is often titled the insurance “commissioner”. The commissioner and their regulators flesh out the legislative framework, enacting more detailed policies regarding, for example, the creation and sale of insurance products in the state. A state insurance department also plays a significant role in governing brokers, agents, adjusters, and rating organisations, along with insurers themselves.

The regulation of insurance companies is focused on licensed companies, sometimes referred to as authorised or admitted companies, and can include domestic companies, foreign insurers, or alien insurers. Alien insurers are companies organised under the laws of a foreign jurisdiction. They may be able to obtain a certificate of insurance as a licensed insurer subject to certain trusteed asset and surplus requirements. Surplus lines insurers must typically be authorised in a domiciliary state or country and meet certain capital surplus requirements. A risk retention group is another form of potentially regulated entity. These are a type of captive insurer subject to limited regulation under state law. Finally, some specific types of insurers may not be subject to all types of regulation, such as rate and policy form regulation, and exemptions would be identified in specific statutes in a state exempting such insurers from some laws. These may include farm mutual, county mutual, Lloyds, reciprocal exchanges, and fraternal benefit societies.

The Courts and Common Law Precedent

In addition to legislative and executive actions, insurance law in the USA is heavily impacted by the judiciary, both state and federal, and the common law precedents they set that can control particular insurance issues and disputes. These include the mechanics of a state’s regulatory scheme (the validity and scope of state legislation and regulatory actions), the validity and interpretation of particular policies, and the application of policies to the universe of factual disputes. It is important to note that from state to state, jurisdictions will vary greatly in the amount and depth of developed case law available.

Federal Role

Finally, the federal government also influences many aspects of insurance law nationally. For example, in addition to the regulation of US entities generally (particularly securities regulations and disclosure requirements), unique federal insurance issues may arise in relation to certain interstate transportation or maritime operations.

As discussed above, the primary regulation of the business of insurance is by a state department of insurance. The commissioner of that department may be elected or appointed by the governor and the appointment may be subject to confirmation by the state legislature. The state department of insurance regulates forms, rates and the solvency of most types of policies in the state, including most types of property, casualty, life, accident and health, and long-term care insurance.

The state department will typically be subject to the input of state legislative committees with jurisdiction of insurance issues. These may include insurance committees and business and industry committees. Of course, the legislature also appropriates funds for the activities of these agencies.

Reinsurance credit and accounting for domestic insurers may be governed by separate legislation and regulations. This includes reinsurance assumed for reinsurers that meet accreditation and certification requirements, including certain standards adopted by the National Association of Insurance Commissioners (NAIC) and reciprocal jurisdictions in the case of a covered agreement between the United States and European Union.

In some states, the state law enforcement official, for example, the attorney general, may have authority to enforce deceptive and unfair trade practices, as well as the authority to enforce actions against unauthorised insurance. Usually, the state’s comptroller is responsible for the reporting and collection and auditing of all insurance taxes.

Writing of Insurance and Reinsurance

In many states, an authorised or licensed insurer must obtain a certificate of authority identifying the lines and types of insurance they are authorised to write. An applicant for a licence will need to demonstrate the competence, fitness and reputation of its officers, directors and other persons having control of the insurer, and officers or directors may not be qualified if they have been convicted of a felony involving moral turpitude or breach of fiduciary duty.

Those applying for a licence or to form a new company must typically demonstrate that the proposed officers, directors or attorney have, in fact, a good record and sufficient insurance experience, ability and standing to make a success of the proposed company.

Minimum capital and surplus requirements are necessary and these may vary by type of insurer (property/casualty, life and health, etc). A state’s commissioner may also require larger amounts of capital and surplus depending on the nature of the risks being underwritten or reinsured.

Premium Taxation

Insurance companies must pay taxes on premiums written on risks located in a given state, which can vary widely. Surplus lines taxes may be required to be collected and reported by licensed surplus lines agents, and independently procured insurance obtained by a business must be reported for tax purposes. In addition to premium taxes, a state may impose maintenance taxes, which will vary by line and type of insurance. Foreign insurers are commonly subject to retaliatory taxes for business written in the state based on the tax rate in their state of domicile.

Overseas Firms Doing Business in the Jurisdiction

Alien insurers are able to provide reinsurance as accredited or certified reinsurers in most circumstances and may also qualify as eligible surplus lines insurers. Overseas insurers may qualify for a licence to write business directly, typically by meeting trusteed asset and surplus requirements with assets in the United States. An exception to unauthorised insurance is often made for an insurance contract independently obtained from an unlicensed insurer such as an overseas-based insurer, provided that all the negotiations for such insurance occur outside of the state and the applicable independent, procured premium taxes are paid.

Fronting

Fronting (100% quota share reinsurance agreements) is commonly allowed as a type of reinsurance with domestic or licensed insurers. The reinsurer must be solvent and licensed, or meet any accreditation or certification requirements in a given state. Approval for total assumption reinsurance agreements varies across the USA.

Transaction Activity

Approval for the acquisition of a domestic insurer will pay particular attention to any person who will own 10% or more of the stock or have control of a domestic insurer, because of a presumption of control at that level. Investors in publicly held companies that acquire more than 5% of the stock of the publicly held company may be required to file notices with the Securities and Exchange Commission, stating whether their investment is intended to be used for control. Passive investors who file a Schedule 13G filing and reference Rule 13d-1(b) may be able to overcome a presumption of control without filing a separate disclaimer.

Insurance disputes of all kinds are usually resolved through litigation or arbitration. However, since most reinsurance contracts or treaties contain mandatory arbitration provisions, litigation of a reinsurance dispute is unusual in most jurisdictions.

Litigation is commenced when either party to the policy files a complaint or petition in a court of competent jurisdiction and the other party is formally served with a copy of the pleading.

The party that is being sued then has a relatively short time to file a written answer to the other party’s allegations. The lawsuit must be filed within a specified time after the dispute arose. That time varies between states from as little as two years to as much as ten years. Statutes of limitations are enforced very strictly. Some policies include a contractual provision identifying the time in which a suit must be brought and the courts will generally enforce these provisions if the contractual time period is not unreasonably short.

Any entity that is either a named insured or an additional insured (either expressly named or identified by group or class) can initiate a lawsuit to enforce its rights under an insurance policy. In most states, a party asserting a claim against an insured cannot file a lawsuit against the wrongdoer’s insurer until after the claimant has been awarded a judgment against the insured. However, Alabama, Arkansas, Louisiana, Minnesota, New York, Pennsylvania, Rhode Island and Wisconsin all recognise a claimant’s right to file a direct action against the wrongdoer’s insurer in some circumstances, with those circumstances varying between the states.

Mediation has been an integral part of litigation in the United States for several decades, including in insurance disputes. Most courts will either order mediation or strongly suggest the parties consider mediation. Federal courts will sometimes make a magistrate judge available to serve as a mediator at no cost to the parties. In state court, mediation is usually available through a mediation service or a lawyer or retired judge. The cost, which can range from a few hundred to several thousand US dollars a day, is divided among the parties.

Jurisdiction in American courts is composed of two elements: subject matter jurisdiction and personal jurisdiction.

Subject matter jurisdiction is created by the constitutional and statutory provisions of each individual jurisdiction. Since subject matter jurisdiction is a matter of state law, the courts will not allow parties to a contract, including an insurance policy, to create jurisdiction in a court. Personal jurisdiction, which addresses a party’s amenability to being sued in a particular location, is not as strict and therefore a party may consent to being sued in a jurisdiction as a matter of private agreement. Therefore, courts will typically enforce a forum selection clause to which the parties have agreed if the court has subject matter jurisdiction.

The decision of what substantive law will govern an insurance dispute varies between jurisdictions. Some states have statutes concerning what substantive law will apply to certain types of disputes. In the absence of a statute, if an insurance policy contains a choice-of-law provision, a court will usually enforce that provision, although there may be limited situations in which the law of the chosen jurisdiction is so opposed to the public policy of the forum state that one or more provisions of the other state’s law will not be applied. If there is no statute or contractual provision, the decision of what substantive law to use is a matter for the court to resolve.

In the past, many courts applied the law of the jurisdiction where the insurance policy was negotiated and delivered, but as state lines have become less important in insurance transactions, most courts have adopted more flexible tests. The most prevalent is the “most significant relationship”, in which the court considers various public and private interest factors involving the parties, the location where the claim arose, the nature of the claim, the interests that states who have some connection to the dispute have in the application of their respective laws, and other systems.

These factors are derived primarily from the Restatement (Second) of Conflicts of Laws which identifies the factors a court must consider and includes a specific provision for choice of law in insurance disputes. The test is very subjective and can result in inconsistent decisions between jurisdictions and even between courts in a single jurisdiction. Decisions on jurisdiction, court selection and choice of law all involve legal matters that are resolved by the court.

Every jurisdiction has its own statutes and rules for the enforcement of judgments. Judgments from another jurisdiction in the United States are entitled to enforcement under the Full Faith and Credit clause in the United States Constitution. To satisfy this obligation, most states (California and Vermont being the exceptions) have adopted all or part of the Uniform Enforcement of Foreign Judgments Act, under which a judgment from another state court or federal court can be “domesticated” in the forum state and then enforced in that jurisdiction. In some states this is as simple as filing an authentic copy of the out-of-state judgment in a state court of competent jurisdiction, providing notice to the judgment debtor.

If the judgment debtor does not file an objection within 30 days, the judgment creditor can enforce the judgment in the state where it has become domesticated. The exact method of filing, giving notice and allowing the judgment debtor to object vary from one state to another. If the judgment debtor does object, it is usually not allowed to attempt to re-litigate the merits of the dispute and is limited to arguing that there was some procedural or judicial irregularity that would make enforcement of the judgment fundamentally unfair. There is no federal treaty for the enforcement of a judgment entered outside the United States but many of the individual states have adopted a variation of either the 1962 Uniform Foreign Money-Judgments Recognition Act or the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In the few states that have not adopted either of these treaties, there are common law methods for enforcement of a non-US judgment, although they may be less efficient or effective.

One notable feature of the American litigation system is the rampant use of expert witnesses on a wide variety of subjects. Although experts are supposed to be used only when they have special training, expertise or experience on matters that are beyond the knowledge or understanding of a typical juror, parties to an insurance suit may often try to gain a tactical advantage through the use of experts who are known to be especially friendly towards the insureds or insurers.

Both the federal court system and all state court systems favour arbitration in commercial disputes and the enforcement of arbitral awards. Under the Federal Arbitration Act, which applies to the majority of arbitral awards, a party seeking to enforce an arbitral award must seek confirmation of the award in a court of competent jurisdiction within a year of the arbitral award being made. A court can vacate an arbitral award only if the court determines that:

• the award was procured by corruption, fraud or undue means;
• there was evident partiality or corruption on the part of the arbitrators;
• the arbitrators were guilty of prejudicial misconduct during the course of the hearing; and/or
• the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

Some states have begun to prohibit or limit mandatory arbitration clauses in some types of consumer insurance policies.

The USA has joined the New York Convention on the enforcement of foreign arbitral awards.

Arbitral awards are routinely enforced in courts throughout the United States in commercial and reinsurance arrangements, but some states are starting to limit the enforcement of mandatory arbitration clauses in certain consumer transactions or statutory causes of action available to individuals. The United States is a signatory to both the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) and the Inter-American Convention on International Commercial Arbitration (the “Panama Convention”), and American courts are very receptive to the enforcement of arbitral awards from outside the United States.

The interpretation of an insurance policy is normally a question of law for the court to resolve. Insurance contracts are interpreted the same way as other contracts, with two exceptions.

First Exception: Interpretation of a Policy Giving Effect to Provisions

In the first exception, a reviewing court must try to give effect to the intent of the parties as expressed in the contractual language. A court should examine the entire contract and try to interpret the policy in such a way that all the policy provisions are given effect and no policy provision becomes meaningless. The policy language is to be given its ordinary and generally accepted meaning, unless the policy shows that the words were meant to be used in a technical or specialised sense. Courts will sometimes rely on industry custom and practice in interpreting a word that has an established meaning in a certain industry or profession.

A court should not interpret a policy in a way that rewrites the policy by imposing an additional duty or obligation on either the insured or the insurer and the policy. Extrinsic evidence is not allowed to interpret or change clear and unambiguous policy terms. Despite these rules, many courts show a tendency to interpret a policy in a way that is more favourable towards the insured, under the theory that the insurer was the author of the document and should not benefit from any imprecision or inconsistency in the policy language.

A few jurisdictions require that a court interpret the policy with consideration for the reasonable expectations of the insured. One exception arises when there is ambiguity in the policy language. If the insured can offer a reasonable interpretation of the ambiguous language, a court will generally adopt that interpretation even if the insurer can offer a more reasonable interpretation. Extrinsic evidence can be used to help resolve ambiguous language.

Second Exception: When a Policy Provision Is Against State Public Policy

A second exception arises when a policy provision is against the public policy of the state, where the substantive law controls the interpretation of a policy. As an example, some states will not allow an insured who is found liable for punitive damages to escape liability by passing the economic loss to the insurer, and will therefore not enforce a policy term purporting to cover punitive damage claims.

In liability claims, which form a substantial portion of insurance disputes in litigation, the applicable substantive law usually distinguishes between an insurer’s duty to defend its insured and its duty to indemnify its insured. The duty to defend is considered a broader duty and is based on analysing the factual allegations in the insured’s petition or complaint against the applicable policy terms and conditions. Traditionally, extrinsic evidence was not allowed and an insurer’s duty to defend was often resolved on a summary basis without trial. More recently, some jurisdictions have gone outside the language of the documents and have required an insurer to consider facts known to the insurer which would support the existence of a duty to defend. Specific jurisdictions may allow other extrinsic evidence in some circumstances.

The insurer’s duty to defend is based upon the actual facts, regardless of the insured’s allegations, and a determination of the duty to defend usually cannot be made until the underlying litigation between the insured and the third-party claimant has been resolved.

Right to Information

An insurer will normally require the insured to complete an application requesting all information the insurer believes it will need to evaluate and underwrite the risk. The insured has an obligation to provide full and complete answers to all the requests from the insurer. It is common for the application to be incorporated into and made a part of the insurance policy. An insurer generally has no affirmative duty to proactively seek information but, in most instances, an insurer will have no ability to avoid coverage based on information in the possession of the insured but not requested by the insurer. This process applies to both consumer insurance contracts and commercial insurance contracts.

If the insured fails to disclose information requested by the insurer during the negotiation of the policy, the insurer can simply decide not to offer a policy to the insured. If the nondisclosure by the insured of information requested by the insurer is not discovered until after the issuance of a policy, the insurer can seek to rescind the policy through a judicial proceeding but, in most jurisdictions, an insurer must show that the non-disclosure was material to the underwriting decision and that the insured intended to defraud the insurer. If the insurer does not become aware of the withheld information until after a claim is made against the insured and the withheld information is material to the risk that resulted in the claim, the insurer can seek rescission but must usually show intent to defraud on the part of the insured. If the withheld information is not relevant to the claim, rescission is usually not available. Since the insurer’s scope of coverage is defined by the terms of the policy, any conditions, limitations or exclusions not set forth in the written policy cannot be enforced by the insurer.

Rights Regarding Warranties

American courts have traditionally treated a warranty as a promise in the insurance policy by the insured to either represent that a fact is true or that the insured has agreed it will do or not do a specified act. Whether an obligation in a policy constitutes a warranty is determined by reading the policy as a whole and the obligation does not have to be denominated as a warranty to be treated as a warranty. Instead, the focus is on whether the policy language as a whole shows that one party intended to rely upon the truth of a representation made by the other party.

The consequences of a breach of warranty vary depending on the materiality of the representation to the loss or claim. The effect of a misrepresentation by an insured must be material to the claim or loss at issue. In extreme cases, breach of a warranty by an insured can relieve the insurer of any obligation under the policy.

To alleviate the especially harsh consequences that may result from some types of breach of warranty, many states, either by statute or by judicial precedent, will not allow a breach of warranty by the insured to relieve the insurer of its duties unless the misrepresentation expanded the risk covered by the policy, or the insurer can establish fraud on the part of the insured.

Historically there has been some lack of consensus as to whether a policy provision should be treated as a warranty, a condition, or a coverage term. The growing trend in American courts is to give greater weight to the substance of a policy term than its title. Therefore, although a policy provision may be placed in the conditions section, a court may interpret the provision as a warranty, a coverage term or an exclusion. Despite the label, implied warranties are disfavoured and are seldom recognised.

Duties Imposed on an Insurer

In consumer policies and some commercial policies, state statutes or state court judicial duties may impose duties on an insurer (such as a duty to perform a thorough investigation before making a claims decision or an obligation to pay within a certain time once coverage becomes reasonably clear) that act much like a warranty. The consequences of the breach of a condition vary due to a variety of factors. In many jurisdictions, an insurer’s breach of what may be considered a condition precedent, such as a duty to give timely notice or to co-operate with the insurer’s investigation, may be excused if the insurer has not been prejudiced by the breach. Generally, conditions are enforced more strictly against an insurer than against an insured.

See 5.3 Trends in the Cost or Complexity of Litigation.

Federal or State Court?

The American court system is complex and often confusing. There is a federal court system consisting of federal district courts, a limited number of appellate courts, and a single Supreme Court. The federal courts have limited jurisdiction and generally have jurisdiction over:

• claims involving a federal statute or right; and
• disputes between citizens of different states or between a United States citizen and a foreign entity or person where the amount in controversy is in excess of USD75,000.

There is a general feeling that a federal judge (who is appointed for life) may be less protective of local interests than a state judge (most of whom are elected), so insurers generally prefer federal court to state court.

It is quite common for an insurer to file a claim in a federal court seeking a declaration of rights and obligations under the policy when a disputed claim arises. If an insured files a suit in state court, the insurer has 30 days in which it can remove the case to federal court if the amount in controversy and the citizenship of the parties satisfy the minimum jurisdictional requirements of the federal court. As a result, the petition or complaint filed in smaller consumer claims will include statements about the citizenship of the parties or the amount in controversy in an attempt to prevent the case from being removed to federal court.

The Litigation Process

Each of the 50 states, plus the District of Columbia and American territories and dependencies has its own judicial system and the litigation processes can vary substantially. In broad strokes, once an insurance suit is filed, there will be an initial period where the defendant, either the insurer or insured, can challenge the court’s jurisdiction or the legal sufficiency of the plaintiff’s pleading. If the case survives this phase, the parties will begin taking discovery. Many states now require the parties to exchange certain relevant information before additional discovery beings.

Discovery can consist of:

• depositions of witnesses (either orally or in written questions);
• interrogatories served upon the opposing party asking about facts known to the party and legal positions taken by the party;
• requests that the opposing party produce documents in its possession, custody or control that are relevant to the dispute;
• requests that the opposing party admit or deny certain facts;
• site inspections of property; and
• physical or mental examinations of a party if the party’s physical or mental health is in issue.

Additional discovery methods may be allowed in some jurisdictions. The discovery process often becomes very contentious in litigation and the parties may seek judicial intervention to resolve the dispute, although must judges expect the parties to resolve these types of disputes amicably. The ability and the intention of judges to intervene in these disputes varies greatly across the country.

At any time during the case, although usually after substantial discovery, a party may seek dismissal of the case through a procedure known as summary judgment, in which the party can try to convince the court that there are no material facts in dispute, that the applicable law is in favour of the moving party, and that the case should therefore be terminated. If the case is not resolved on summary judgment, the case will proceed to trial on the merits.

In most jurisdictions, either party can request that the factual disputes in the case be presented to a jury for resolution. Insureds often request a jury on the assumption (sometimes well founded) that the average jury will not be favourable to an insurer. After the trial, the parties will submit proposed judgments to the court and the court will prepare and sign the court’s judgment. The losing party will usually have the right to appeal the judgment to the first-level appellate court as a matter of right but any higher appellate review is discretionary with the higher court. Keep in mind that procedures will vary substantially between the various states.

If a state considers insureds as “consumers” – typically under “bad faith” or extra-contractual statutes such as “deceptive trade practices” – an insurer may be liable for penalty sums for certain actions. See 4.7 The Concept of Bad Faith.

Consumer policies tend to be more highly regulated than commercial contracts or reinsurance contracts and many of the forms and provisions in a consumer policy are either mandated by or must be approved by the appropriate state regulatory party. Despite that, there is no appreciable difference between the rules applicable to additional beneficiaries under a consumer policy and the rules applicable to a commercial policy. There is insufficient precedent on additional beneficiaries under a reinsurance contract to draw general rules.

There are multiple ways in which someone other than an original insured can obtain rights under an insurance policy. Firstly, either at the time of the negotiation of the policy or after the policy is issued, an insurer may agree to add additional persons or entities as named insureds under the policy. These named insureds generally have the same policy rights as the original insured. Secondly, a policy may allow for the protection of additional insureds, either by specifically naming the additional insureds or by describing a class or group of additional insureds (such as an endorsement in a policy issued to a contractor extending coverage to all parties the insured is contractually obliged to name as additional insureds, or a renter’s policy that provides additional coverage to the owner). These additional insureds may not have the same scope of coverage as the named insured, depending on the scope of coverage contained in the policy naming or identifying the additional insured. (As an example, a renter’s policy may limit the additional coverage to damage caused by the tenant but not to damage caused by the owner.) In homeowner, property, or similar policies, a lender, mortgagor, or lienholder may be protected through a loss payable clause that directs payment to the protected party instead of the named insured in some instances. In all these situations, the insurer may request information from the insured about the intended beneficiaries and the insured is obliged to give full and complete answers. Implied beneficiaries tend to be disfavoured and are not often allowed. An insured who wants to protect additional parties through a policy should make that intention clear to the insurer, and make sure that intent is reflected in the policy language.

An insured often attempts to impose extra-contractual liability (“bad-faith” liability) upon an insured for alleged irregularities in claims handling. Most jurisdictions now have comprehensive statutory schemes imposing certain obligations on an insurer in handling and resolving a claim. A successful insured can recover amounts beyond the policy limits in some situations, but there is great variance between the states on what extra-contractual penalties can be imposed.

Most jurisdictions have statutory or regulatory timelines dictating when an insurer must make a claims decision and make payment to the insured. The amount of the penalty varies between states but can be as much as 18% per annum on the amount that was wrongfully withheld or was delayed in payment.

In the consumer market (also known as the personal lines market and primarily involving home, auto, health, and life insurance), an insurer may use an exclusive agent who is acting on behalf of the insurer but the agent may also have duties of honesty and disclosure to the insured. In other consumer policies, the insured may use the services of an independent agent who may be acting on behalf of the insurer in performing some duties, but be acting on behalf of the insured in performing other duties.

The duties of an agent vary from state to state but generally include duties of honesty and an obligation to obtain the insurance requested by the insured or to explain to the insured why the coverage is not available. An agent for the insured usually does not have a duty to recommend coverage or explain policy terms to an insured. If an agent assumes those duties, the agent is obliged to perform them as a reasonably prudent agent would do.

In commercial policies, especially those involving non-admitted surplus lines carriers or London market entities, the common practice is for the insured to retain the services of a retail broker to act on its behalf and for the insurer to retain a wholesale broker to act on its behalf. In commercial policy negotiations, there is little direct contact between the insurer and the insured or its retail broker or between the insured and the insurer or its wholesale broker.

Insurer funding for defence of an insured naturally arises most commonly in the context of liability policies, such as commercial general liability, D&O, and certain package policies. It is important to note that in some instances the defence costs may reduce or “erode” the overall policy limits, leaving few funds for indemnification.

These contractual defence obligations are standard and should not change in the near future.

The US has seen an uptick in WRAP policies in the construction industry, which allow general contractors, for a higher premium of course, to “wrap” all their subcontractors under the general contractor’s policy. With fewer parties actively involved in the litigation, the general contractor and its insurer then have greater control over the costs and resolution of the case.

Litigation Funding

Litigation funding (“LF”) has caught the eye of legislatures and courts alike. LF is used frequently by plaintiffs’ attorneys, is on the rise, and is often not known about by defendants. Conservative estimates put the LF industry at USD2.3 billion, although the Swiss Re Institute suggests it is much higher. The loans can be provided to litigants or attorneys. The Government Administration Office defines LF as “an arrangement in which a funder that is not a party to a lawsuit agrees to provide nonrecourse funding to a litigant or law firm in exchange for an interest in the potential recovery of the lawsuit.” Telltale signs of LF include unusually high medical specials (especially in soft tissue injuries); medical treatment for seemingly unrelated conditions; treatment by providers outside of their specialisms; accelerated medical treatment; and location of medical treatment.

The LF investors include a range of parties, from private equity groups to individuals. The non-recourse nature of the funding is what distinguishes LF from a traditional loan. Interest, not surprisingly, is attached to recovery. LF exists in commercial/corporate contexts (IP, antitrust, asset recovery, fraud, and class actions on behalf of large corporations) and is used by large law firms, as well as in the large personal injury/mass tort arena. LF also exists in the consumer arena, but the loans are typically small and used by plaintiffs to fund living expenses or medical treatment, as opposed to funding litigation. Consumer recipients have drawn the most attention from state legislatures due to the greater potential for abuse.

Downsides to LF

The downsides to LF include:

• with no personal stake in a case, the “money down” makes the funding deal similar to a bet at a casino;
• LF could put plaintiffs in a position that a reasonable offer to settle cannot be accepted because the financial obligations of the loan cannot be met;
• accidents should not be investment opportunities because this perverts the justice system;
• LF can promote and prolong litigation because defence counsel is forced to divert additional time and money away from productive defence of the case;
• if the funder holds the purse strings, the funder may exert control over litigation strategy to the plaintiffs’ disadvantage;
• a defendant should be entitled to know whether unnecessary medical procedures are being promoted by a funder to increase case value; and
• a defendant wants to know whether a lien exists to be satisfied.

Upsides to LF

Not surprisingly, the proponents of LF contend:

• disclosure of LF is unnecessary and irrelevant;
• LF shifts the risk of adverse litigation outcomes and because it is non-recourse, the funder’s and plaintiff’s interests are aligned;
• LF to a law firm benefits the client by providing the resources necessary to provide the best experts, etc, needed for the case; and
• a plaintiff could benefit by not settling early because the attorney could not afford a lengthy, expensive lawsuit.

Other issues of concern are the potential conflict of interest between a client and their attorney if the attorney put the funder’s interest ahead of the client’s interest. Maintaining independent professional judgment by the attorney is an additional consideration.

On the federal level, the Litigation Funding Transparency Act was presented to Congress in both 2018 and 2021, and was not passed on both occasions. Under the proposed act, disclosure of LF and the agreement itself were required in federal class actions and multi-district litigation.

Response From the Legislature

Nevertheless, some federal courts have taken notice and require disclosure of LF (but not the agreement itself) by local rule: District of Arizona; Central District and Northern District of California; Middle District of Florida; Northern District and Southern District of Georgia; Northern District and Southern District of Iowa; District of Maryland; Eastern District and Western District of Michigan; District of Nebraska; District of Nevada; Eastern District, Middle District and Western District of North Carolina; Eastern District, Western District and Northern District of Oklahoma; Middle District of Tennessee; Northern District and Western District of Texas; Western District of Virginia; and Western District of Wisconsin. The 3rd, 4th, 5th, 10th and 11th Circuits of the federal appellate courts have also adopted local rules.

While state legislatures primarily seek to protect consumers, the courts have a differing perspective. The existence of LF alerts the court to issues best addressed in pre-trial conferences; aids in compliance in the matter of financial disclosures and recusal obligations; highlights potential conflicts of interest; and who should participate in settlement conferences due to potential resolution issues.

As mentioned above, some states have addressed LF by statute or common law with mixed results, including: Delaware, Illinois, Kentucky, Maryland, Minnesota, New Jersey, North Carolina, Ohio, Pennsylvania, Texas, Utah, West Virginia and Wisconsin. Even the United States Tax Court has jumped in holding that although LF payments are structured as loans, including the non-recourse payments makes them “income” rather than a “loan” for tax purposes. Therefore, it a good idea for attorneys to consider tax and accounting implications for their clients.

Insurers should expect LF to continue in one form or another. Some states may refrain from legislation, but the courts will likely start implementing their own local rules to address issues surrounding the disclosure of LF and possibly even the LF agreement itself. Additionally, courts may issue opinions where statutes or the existence of LF at least raises issues of fairness for defendants, to understand what factors may be at play in order to further resolution.

The Alternative Risk Transfer (ART) Market

The USA insurance market also includes the alternative risk transfer (ART) market. In this market, companies purchase coverage and transfer risk outside traditional commercial insurance mechanisms. This may include the following:

• risk retention groups (RRGs);
• insurance pools;
• captive insurers;
• risk mitigation provided by wholly owned subsidiaries of a company;
• contingent capital;
• derivatives; and
• insurance-linked securities.

The alternative risk transfer market is primarily delineated between risk transfer through alternative products and risk transfer through alternative carriers.

Most consumer and commercial policies expressly recognise an insurer’s right of subrogation against the wrongdoer once a claim is paid. Some jurisdictions also recognise common law subrogation rights in favour of the insurer, but those rights may be based on equitable or other considerations so a contractual subrogation right is preferred.

There are two important limitations on an insurer’s subrogation rights. Firstly, in the absence of an express contractual provision, an insurer usually cannot exercise that right against its own insured because to do so would undercut the exact risk transfer which is the purpose of insurance. Secondly, in many types of policies, such as construction liability policies, an insurer will be asked to waive its subrogation rights and a provision to that effect will be included in the policy either as a term of the original policy or as an endorsement. The insurer may charge a higher provision for waiving subrogation.

Regarding climate and natural disaster risks, insurers and related institutions appear to be experimenting with a variety of responses:

• reorganising, or at least re-thinking the way they see themselves as many policyholders do – ie, as “financial safety nets”;
• increasing reliance on technology for better evaluation of climate-related issues on classification, underwriting and rating of risks; and
• reorientating customer-facing services to take a more active role in risk prevention (additionally, such risks may push a new demand for and increase in industry consolidation).

Climate change and the attendant insurance risk are unlikely to change in the near future.

No truly seminal cases in this area have taken root at this time.

These factors have also led some carriers to pull out of certain markets, especially coastal regions like California, Texas and Florida.

There has been a slight potential for pull-back by the insurance industry on some ESG considerations in the past year. However, insurtech, or “the innovative use of technology in connection with insurance”, unsurprisingly continues to be a topic at the forefront of the insurance industry’s attention. Issues to monitor include:

• innovations in improved customer experiences, particularly among established insurance businesses;
• consolidation and the blending of automation and analytics technologies; and
• data-driven ESG analysis and risk exposure.

These are in addition to trends such as embedded insurance, accelerated learning and artificial intelligence, which will continue to play an important role going forward.

Regulators nationwide are naturally keeping a close eye on insurtech developments. This includes traditional concerns regarding consumer protection, capital and reserve requirements, and solvency evaluations. But it will also push these regulatory bodies further into new territories of digital data privacy, cybersecurity and AI. For certain states, ESG considerations will also play an increasing important role.

Data use and security, and climate and natural disaster risk continue to be the leading risks and areas for concern in 2024. While many states, and the federal government in some cases, are taking an active role in guiding and developing protections or guard rails for these issues, many other jurisdictions are allowing more experimentation. The use of AI in the classification, underwriting and rating of risks is one such area.

Florida Tort Reform

Perhaps one of the most notable changes affecting insurers writing policies in Florida moving forward will be the significant tort reform enacted by the Florida legislature in 2023. Florida is one of the most litigious jurisdictions in the US, and the tort reform was intended to quell some of that litigation by giving businesses and insurers greater protection against lawsuits. The legislation was directed at tort claims, and some enactments were directed at bad faith in insurance. The legislation applies to causes of action accruing on or after 23 March 2023. Some of the changes are enumerated below.

One major change was to Florida’s comparative fault scheme. While Florida had been a traditional, “pure” comparative negligence state, the legislation aligns Florida with the majority of other states having a “modified” scheme. Under the old scheme, a plaintiff was entitled to recover a percentage of damages proportionate to the degree of fault of the defendant. Now, if a plaintiff’s percentage of fault is more than the defendant’s percentage of fault, the plaintiff cannot recover. The change, however, does not apply to medical negligence.

Another noteworthy change is that the legislation reduced the limitations period for general negligence claims. The limitations period for general negligence is now two years instead of four years.

Possibly looking to the Texas statutory model, Florida modified the admissible evidence available to prove past and future medical expenses. Previously, a plaintiff could board the entire amount of the medical bills charged for the services rendered. Evidence of adjustments or reductions by healthcare insurers was prohibited. Now, generally, evidence presented to prove past damages for medical expenses is limited to the amounts actually paid, regardless of the source of payment. Admissible evidence varies with the existence of healthcare coverage, Medicare, or Medicaid. Importantly, if past medical care was obtained under a letter of protection, evidence of what health insurance would have paid for the necessary treatment, plus a plaintiff’s share of the expenses, is now admissible. Moreover, a letter of protection must be disclosed, overruling Worley v Central Florida YMCA, Inc, 228 So. 2d 18 (Fla. 2017).

Premises liability claims involving negligent security also received attention. Under the new legislation, a jury can now consider the fault of all persons contributing to an injury, including a non-party who injured the plaintiff by committing a crime on the defendant’s property.

Florida legislation also addressed insurer bad faith. Significantly, a claimant, an insured, or their representatives have the duty to act in good faith in providing information to insurers, making demands, setting deadlines and making settlement attempts, and a fact finder may consider it bad faith to reduce the damages awarded. Also, the legislation clarified that mere negligence cannot support a finding of bad faith against an insurer. An insured’s statutory entitlement to recover attorneys’ fees upon prevailing against an insurer has been eliminated, except in declaratory judgment actions to determine coverage. The use of non-contingency multipliers to calculate attorneys’ fees is now prohibited.

While the impact of these enactments must make their way through the Florida courts, the number of baseless lawsuits in the bodily injury arena should decrease. For those suits that go forward, insurers and defendants should have a more level playing field.

The Illinois Supreme Court Turned the Tables for Construction Defect Coverage

Illinois courts for over 20 years have interpreted the standard commercial general liability (CGL) definitions of “occurrence” and “property damage” to refuse coverage for faulty construction. However, a new day has arrived for contractors, owners and developers, to the detriment of insurers – see Acuity v M/I Homes of Chicago, LLC, No 129087,  N.E.2d (Ill. 30 November, 2023). Previously, Illinois courts generally found coverage only in the event of damage to other real property or the personal property of owners.

The underlying lawsuit was filed by a townhouse owners’ association for breaches of contract and the implied warranty of habitability against the general contractor/successor developer/seller of the townhouses. The association generally alleged that the general contractor’s subcontractors used defective materials, caused faulty workmanship, and failed to comply with building codes. The damage alleged was uncontrolled water leakage and moisture in locations of the buildings where it was not “intended or expected” and causing resulting property damage to the townhouses and other property – such as windows and patio doors, as well as damage to the interior of the units.

The general contractor tendered its defence as an additional insured under a subcontractor’s policy, which denied and filed a declaratory judgment action. The general contractor argued that the association merely alleged “the natural and ordinary consequence of defectively performed work”, which was not an accident, and therefore, not an “occurrence”. The insurer further urged that the association only sought economic loss – the cost of repairing and replacing the defective construction work, which was not “property damage”. The association countered that damage to “other property” was alleged beyond the repair and replacement of the faulty work, meaning “property damage” caused by an “occurrence” existed, implicating the insurer’s duty to defend.

The trial court found in favour of the insurer, concluding that property damage resulting from faulty work was not an “occurrence” because it was a natural and ordinary consequence of the construction project and not an accident as required under the policy. While the trial court agreed that damage to other property was sufficient to implicate coverage, it found that was not the case before it, which focused on recovering damages to the townhouses and not damage to other property.

On appeal, the parties agreed that Illinois law found coverage only in the event of damage to other real property or personal property of owners. The appellate court agreed with the parties’ interpretation of Illinois law but criticised and questioned that approach because it focused on the courts’ analyses driven by broad policy considerations and not by policy language. Nevertheless, the appellate court was duty bound by precedent, but reversed the trial court conclusion that the association had sufficiently pleaded damage to other property, triggering a duty to defend.

The Illinois Supreme Court granted leave to appeal. The Supreme Court noted upfront that it had “not yet analysed the specific coverage provisions at issue here in the context of a construction defect case, but the issue has been the subject of much litigation in the appellate court”. Like the intermediate court, the Supreme Court recognised the multitude of opinions in which the issues of “occurrence” and “property damage” were decided and the various reasons for their holdings, while acknowledging that the opinions were based on policy considerations rather than contract construction. Accordingly, the court reasoned that it would not begin by analysing the parties’ premises but would first return to legal principles to bring clarity and provide a disciplined legal framework.

Following a discussion of Illinois law on the duty to defend and the construction of policy language, the court turned to the insurance agreement. The court gave little discussion to the meaning of “property damage” pointing out that tangible property suffers a “physical injury” if the property is “altered in appearance, shape, color or in other material dimension”. Since the allegations against the general contractor sufficiently alleged “property damage” to the interior of the units by leaks and moisture damage, the requirement was met.

With respect to an “accident”, the court indicated that no opinions had interpreted its meaning in the context of construction defects. In accordance with contract construction law, the first court reviewed “accident” interpretation by courts in other contexts, followed by the dictionary definition. The court then held that “the term ‘accident’ in the policies at issue reasonably encompasses the unintended and unexpected harm caused by negligent conduct”.

Applying that definition to the construction defect allegations before it, the Supreme Court noted that the association did not allege intentionally performed sub-standard work. Instead, according to the court, the allegations reflected inadvertent construction defects. The court concluded this despite the insurer’s assertion that any portion of a completed project caused by faulty work can never be an accident because it is always the natural and probable risk of doing business. The court addressed that assertion by pointing out that the notions of business risk were specifically expressed in the exclusions of the policy. Therefore, the court held that the duty to defend was implicated and remanded the case to the trial court to address the effect of the exclusions on the duty to defend.

The importance of this new opinion to insurers writing general liability coverage in Illinois is that it is likely to increase the number of construction defect lawsuits in which the insurers must defend. What should be surprising to insurers is that in a state like Illinois, no Supreme Court precedent existed in such a commonplace claim until now.