Last Class Review

• Waiver, estoppel, and reformation• Doctrine of Reasonable Expectations• Taylor v. State Farm

– Parole Evidence (Corbin/ Williston)– Corbin’s proposed rule

• Pacific– 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?