Section on Insurance Law
San Diego Salon C, North Tower/Lobby Level, San Diego Marriott Hotel & Marina
Insurance Policies: What Are They, and How Should They Be Interpreted
Traditionally, insurance policies have been considered to be contracts as a matter of law. Courts discuss them as such, and they often apply contract principles, such as construing the policy against the drafter, in interpreting insurance policies. However, as many have observed, insurance policies lack characteristics of a prototypical contract, and contain characteristics of legal vehicles that are not contracts at all. For example, at least for consumers, insurance policies typically arrive in the mail after the deal has been made; their terms are regulated by the state; they arguably perform a governmental function of spreading risk among a broad population; and they are written by repeat players whose control of the language can bring them predictable advantages, with the policyholder experiencing unpredicted surprises when a court construes them according to their plain language. Recent scholarship has varied from this contractual model, looking at insurance policies as a form of legislation, or as a product subject to the principles of products liability law. The different views are reflected in the many inconsistent opinions of courts that have interpreted similar language. This panel will explore the various approaches to the interpretation of insurance policies, with different views represented.
Business Meeting at Program Conclusion.
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