Christopher French, ‘The Illusion of Insurance Contracts’

Insurance policies commonly are understood to be a species of standardized contracts. This Article challenges that conventional wisdom and argues that insurance policies do not qualify as contracts when the doctrinal and theoretical bases underlying the requirements for the formation of a contract are analyzed. In making the argument, the Article examines the process by which insurance policies are created and sold, as measured against the requirements for the formation of a contract. It also distinguishes insurance policies from other types of standardized contracts such as the various types of wrap agreements that currently are the subject of much litigation and scholarly commentary. The Article then explores the doctrinal and theoretical bases underlying the specialized rules that courts have developed to interpret insurance policies, which incorporate public policies such as ensuring that injured parties are compensated and that powerless consumers receive protection against overreaching by insurers, to explain how courts already implicitly have recognized that insurance policies are not simply a type of standardized contract.

Then, in order to avoid the current problem of regulatory capture associated with the approval of policy language, the Article proposes to reform insurance law by having an independent third party draft insurance policies into shorter, understandable documents with input from both insurers and policyholders. And, instead of using the current rules of insurance policy interpretation, the canons of statutory interpretation would be used to interpret insurance policies with consideration given to the drafting history, societal interests, overriding purpose of insurance, and with Chevron deference given to the drafter’s interpretation.

French, Christopher C, The Illusion of Insurance Contracts (May 2, 2016). 89 Temple Law Review (forthcoming).

First posted 2016-05-04 06:12:32

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