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New Jersey Insurance Law

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George J. Kenny, Frank A. Lattal


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New Jersey Insurance Law provides comprehensive, accurate and in-depth information about insurance policies, issues and law in New Jersey. This best-selling title covers:

  • Fundamental Principles of Coverage
  • Rights of Insurers: Obligations of Insureds
  • Obligations of Insurers: Rights of Insureds
  • Duty to Defend
  • Bad Faith
  • Agents and Brokers
  • Procedures: Enforcement and Defense
  • General Liability (CGL) Policies
  • Environmental Insurance Coverage
  • Motor Vehicle Liability Policies
  • Personal Injury Protection (PIP) Coverage
  • Uninsured and Underinsured Motorists
  • Life, Health, and Disability Insurance
  • Homeowner Policies
  • Professional Liability Policies
  • Fire Insurance Policies
  • Additional Insurance Issues
  • (Reinsurance, Excess Insurance, Employment Insurance Issues, Property Insurance)

"Particularly useful are the chapters on specific types of policies.  In this area, perhaps, the book achieves its ultimate purpose of bringing together in one place the many disparate threads of insurance practice." - Steven M. Richman, Duane Morris, LLP, New Jersey Law Magazine

"This book provides a comprehensive overview of the key precedential developments in insurance coverage law and is a fundamental starting point for all aspects of research and knowledge in this practice area." - Kimberly M. Parson, of Smith, Stratton, Wise, Heher & Brennan, LLP 


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  • Availability: Available
  • Brand: New Jersey Law Journal
  • Product Type: Books
  • Edition: 2019
  • Page Count: 1106
  • ISBN: 978-1-62881-543-6
  • Pub#/SKU#: JINSU19
  • Pub Date: 11/28/2018
  • Frequency: Annually

Author Image
  • George J. Kenny
George J. Kenny, a Fellow of the American College of Trial Lawyers, has tried hundreds of diverse civil cases to verdict and has briefed and argued more than 70 reported New Jersey Appellate Division and Supreme Court cases. He is a Diplomate of the American Board of Trial Advocates and a certified civil trial attorney since the Supreme Court of New Jersey began the initial certification process in the early 1980’s.

Mr. Kenny has served on the ABA Standing Committee on the Federal Judiciary, the committee that investigates and evaluates the qualifications of all federal judicial nominees. He has served on the ABA Litigation Section’s Council, as a Division Director, as chair of its Professional Liability Litigation committee, as founding chair of its Insurance Coverage Litigation Committee and as liaison to the ABA for attorney certification. He has also served three terms as a trustee of the New Jersey State Bar Association as well as president of the Essex County Bar Association. He is a Life Fellow of the American Bar Foundation and has served as chair and as a member of numerous New Jersey Supreme Court committees.

Mr. Kenny has lectured and published extensively on procedure and substance in various fields of law. He has served on the Adjunct Faculty of Rutgers University School of Law in Newark since 1990 and is also a member of the Editorial Board of the New Jersey Law Journal. He is a partner in the firm of Connell Foley LLP.




Author Image
  • Frank A. Lattal

Frank A. Lattal is currently Chief Claims Officer for Chubb.

He is the senior claims executive for the Chubb Group of Insurance Companies, the world’s largest publicly traded property and casualty insurer through operations in 54 countries around the world. Prior to his current position, he served as Executive Vice President, General Counsel and Secretary for ACE Bermuda Insurance Ltd., a subsidiary of ACE Ltd. Before joining ACE, Mr. Lattal was a partner at Roseland’s Connell Foley & Geiser LLP (now Connell Foley LLP). He spent the majority of his legal career counseling and litigating on behalf of insurers and their insureds. He is admitted to practice law in New Jersey and New York.


Chapter 1: Insurance: Basic Principles and Concepts
I. WHAT IS INSURANCE?
1-1 Introduction
1-2 Risk and Risk Concepts 
1-3 What Risks are Insurable?
1-4 Insurable Interest Doctrine
1-5 Fortuity
1-6 Moral Hazard and Behavior Changes
1-7 Underwriting and Pricing Risk
II.  REGULATION OF INSURANCE
1-8 Introduction
1-9 Regulating ‘The Business of Insurance’
1-10 Regulation of Insurance in New Jersey
III. TYPES AND LINES OF INSURANCE PRODUCTS AND POLICIES
1-11 Introduction
1-12 Life and Non-Life Categories of Insurance
1-13 Personal, Consumer and Commercial Lines
1-14 First-Party and Third-Party Insurance
1-15 Specific Types of Insurance
1-16 Life Insurance and Other Life Products
1-17 Property Insurance
1-18 Liability Insurance
1-19 Other Types of Insurance
1-20 Title Insurance
1-21 Political Risk Insurance
1-22 Social Insurance

Chapter 2: Anatomy of an Insurance Policy
I. INTRODUCTION 
2-1 Policy Language and Coverage
2-2 Policy Interpretation Principles
II.  PARTS OF INSURANCE POLICIES 
2-3 Declarations Page
2-4 Insuring Agreements
2-5 Definitions
2-6 Exclusions
2-7 Conditions
2-8 Cooperation Clauses
2-9 Endorsements

Chapter 3: Formation and Termination of an Insurance Contract
I. INTRODUCTION
3-1 Overview
II. FORMATION OF AN INSURANCE POLICY
3-2 Ordinary Rules of Contract Formation Apply
3-3 Offer and Acceptance
3-4 Consideration
3-5 Creating the Policy
3-6 Obligations of Prospective Insured
3-7 Payment Issues
3-8  Binder Time Restriction to Benefit the Insured
3-9  Obligations on Application for Insurance
3-10 Changes During the Policy Period
III.  Termination
3-11 Termination of Coverage
3-12 Cancellation
3-13 Proof-of-Mailing Requirement Eased
3-14 Cancellation by Mutual Consent
3-15 Cancellation by Insurer
3-16 The Mailbox Rule
3-17 Termination of Individual Coverage under Master Policies
IV.  RENEWAL PROVISIONS
3-18 Obligations Regarding Renewal
V.  ASSIGNMENT
3-19 Major Principles of Assignment

Chapter 4: Construction and Interpretation of Insurance Policies
I. INTRODUCTION
4-1 Overview
II. BASIC RULES OF INSURANCE CONTRACT CONSTRUCTION
4-2 Overview
III. GOING BEYOND THE DOCUMENT FOR CONSTRUCTION AND INTERPRETATION
4-3  Ambiguity
4-4 Construction Against the Insurer
4-5 Doctrine of Reasonable Expectations
4-6 Court Cannot Create a New Policy for Parties
IV. CONSTRUCTION OF EXCLUSIONS
4-7 Purpose of Exclusions
V. CONSTRUCTION OF DECLARATION PAGES AND ENDORSEMENTS
4-8 Defining Coverage; Insured’s Expectations
VI. POLICIES REGULATED BY STATUTE
4-9 Policy Amended to Comply with Statutory Provisions
4-10 Conformance to Public Policy
4-11 Plain Language Requirements
4-12 Policy Interpretation: Legislation vs. Marketplace
VII. MISCELLANEOUS TOPICS
4-13 Choice of Law
4-14 Insured’s Obligation to Read Policy
4-15 Insurer’s Obligation to Provide Notice of Changes to Policy
4-16 Placement of Policy Language
VIII. OTHER INSURANCE CLAUSES
4-17 Determining Rights Among Multiple Insurers
4-18 Types of Other Insurance Clauses
4-19 Other-Insurance Disputes
4-20 Clauses Cannot Extinguish Coverage
4-21 Self-Insured Retention (SIR)
4-22 Automobile Insurance and Other Insurance Clauses
4-23 Extra-Judicial Dispute Resolution
4-24 Self-Insurance 

Chapter 5: The Claims Process
I. INTRODUCTION
5-1 Overview
5-2 Good Faith Required in Claims Handling
5-3 Unconscionable Advantage
5-4 Unfair Interpretation of Policy Terms
5-5 Detrimental Reliance and Estoppel
5-6 Regulation of Claim Practices
II. Initiation of the Claims Process
5-7 Introduction
5-8 Notice
5-9 The Insurer’s Response
5-10 Waiver and Estoppel
5-11 Nonwaiver Agreement
5-12 Delay in Informing Insured of Possible Disclaimer
5-13 Estoppel to Assert Other Defense to Coverage
5-14 Insurer Control as Conflict of Interest
5-15 Estoppel by Failure to Settle
5-16 Insurer’s Right to Rescind Settlement Agreement
III. OBLIGATIONS OF THE INSURED
5-17 The Insured’s Obligation of Good Faith
5-18 Misrepresentation and Concealment
IV. CONDITIONS
5-19 Introduction
5-20 Duty to Cooperate
5-21 Inspection and Audit Condition
5-22 ‘Insured’s Duties in the Event of a Claim’ Condition
5-23 Proof of Loss
5-24 Access to Books and Records
5-25 File Declaratory Judgment over Scope
5-26 Investigation and Testimony
5-27 False Testimony
5-28 Cooperation Not an Issue When Insurer Disclaims
5-29 Disappearance
5-30 When Liability is Certain—No Forfeiture of Coverage
5-31 Burden of Proof on Insurer
5-32 Voluntary Assumption of Liability or Payment
V. NO-ACTION CLAUSES
5-33 Nature and Purpose of No-Action Clause

Chapter 6: Duty to Defend
I. INTRODUCTION
6-1 Overview
II.  THE LAW GOVERNING THE DUTY TO DEFEND
6-2 When the Insurer Must Defend
III.  WHEN THE INSURER NEED NOT DEFEND
6-3 Four Situations Where Insurer Need Not Defend
IV. APPLYING THE LAW
6-4 Ambiguities are Resolved in Favor of the Insured
6-5 Extrinsic Facts May be Considered Under Certain Circumstances
6-6 Duty to Defend Apparently Intentional Acts
V. APPORTIONMENT OF DEFENSE COSTS
6-7 Covered and Uncovered Claims
VI. INSURER’S WRONGFUL REFUSAL TO DEFEND
6-8 Insurer’s Breach of Duty
VII. TERMINATING THE DUTY TO DEFEND
6-9 When Does the Duty to Defend End?
VIII. VOLUNTARY ASSUMPTION OF LIABILITY AND NO-ACTION CLAUSES
6-10 Overview
6-11 Voluntary Assumption of Liability or Payment
6-12 Nature of No-Action Clause
IX. ISSUES AMONG INSURERS
6-13 Primary Insurer’s Duty to Another Primary Insurer
6-14 Primary Insurer’s Duty to Excess Insurer

Chapter 7: Fiduciary Obligations and Extra-Contractual Liability
I. INTRODUCTION
7-1 Basic Obligation of Good Faith and Fair Dealing
II. MISREPRESENTATION AND CONCEALMENT
7-2 Misrepresentation by Insured May Void Policy
7-3 Misrepresentation During Application Process
7-4 Ambiguities in Insurance Application
7-5 Misrepresentation in Life Insurance Policies
7-6 Misrepresentation and Compulsory Insurance
7-7 Post-Loss Misrepresentation
7-8 Concealment
III. NEW JERSEY INSURANCE FRAUD PREVENTION ACT 
7-9 Introduction
7-10 Purpose of Act
7-11 Violations of the Act
7-12 Burden of Proof
7-13 Jury Trial
7-14  Damages Under the Act
IV. EXTRA-CONTRACTUAL LIABILITY: FAILURE TO SETTLE WITHIN POLICY LIMITS
7-15 Good Faith Negotiation Required
7-16 Failure to Furnish Defense Not Bad Faith
7-17 Bad Faith Liability
7-18 Damages Beyond Financial Loss
7-19 Hypothetical Full Coverage Analysis
7-20 The Role of the Deductible
7-21 Time Limitation for Bad Faith Actions
7-22 Bad Faith Actions Among Insurers
7-23 Proof of Bad Faith as Prima Facie Evidence of Damages
V. FIRST-PARTY COVERAGE CLAIMS
7-24 Liability in First-Party Claims Generally
7-25 The ‘Fairly Debatable’ Standard
7-26 Foreseeability of the Consequences of Such a Policy Breach

Chapter 8: Insurer Recovery: Subrogation and Reinsurance
I. Introduction
8-1 Overview
II. SUBROGATION
8-2 Subrogation Generally
8-3 Implied Right of Subrogation
8-4 Effect of Subrogation
8-5 No New Claims Permitted
8-6 Right to Assert Claim Before Payment
8-7 Subrogation and Automobile Insurance
8-8 Subrogation and Property Insurance
8-9 Subrogation and Surety
8-10 Release on Subrogation
8-11 Waiver of Subrogation
III. REINSURANCE
8-12 Introduction
8-13 Purposes of Reinsurance
8-14 Types of Reinsurance
8-15 Retrocession
8-16 Reinsurance in New Jersey
8-17 Duty of ‘Utmost Good Faith’
8-18 Reinsurance Policies
8-19 ‘Follow the Fortunes’ Clause
8-20 Reinsurance Arbitration
8-21 Compelling Arbitration
8-22 Judicial Review of Arbitration Awards
8-23 Privity Between Insured and Reinsurer
8-24 Duty of Reinsurer to Primary Insured

Chapter 9: Procedures Governing Coverage Disputes
I. Generally
9-1  Introduction
9-2 Nature of Disputes
II.  DECLARATORY JUDGMENTS
9-3 Purpose of Declaratory Judgment Actions
9-4 Provisions of the Declaratory Judgments Act
9-5 Burden of Proof
9-6 Cross-Claim Against Agent or Broker
9-7 Effect on Third-Party Claimants
9-8 Insurer vs. Insured
9-9 Insured vs. Insurer
9-10 Insurer vs. Insurer
III. SUBSTANTIVE BASES FOR POLICY SUITS
9-11 Sources of Contractual Disputes
9-12 Notice of Disputes
9-13 Third-Party Rights
IV. PROCEDURAL ISSUES
9-14 Suits to be Filed in Law Division
9-15  Transfer of Action Among Divisions
9-16 Venue by County
9-17 Time for Change of Venue Motion
9-18 Jurisdiction and Foreign Insurers
9-19  Choice of Law
9-20 The ‘First Filed’ Rule
9-21 Service of Suit Clauses
9-22 Entire Controversy Doctrine
9-23 Joinder of Interested Parties
9-24 Interested Parties
9-25 Claimants in Underlying Action Must be Joined
9-26 Realistic Ability to Join
9-27 Environmental Declaratory Judgment Actions
9-28  Either Party Entitled to Jury Trial
9-29 Summary Judgment Principles Applicable
9-30  Allegations of the Complaint Within Insuring Obligation
9-31 An Applicable Exclusion May Warrant Early Declaratory Judgment Relief
9-32  No-Action Clauses Affect on Litigation
9-33 Expert Testimony
V. TERMINATION, CANCELLATION AND RESCISSION
9-34 Termination of Coverage
9-35 The Difference Between Cancellation and Rescission
9-36 Cancellation by Agreement
9-37 Definition of Rescission
9-38 Burden of Proof on Rescission
9-39 Return of Premium and Rescission
VI. REFORMATION
9-40 Introduction
9-41 Reformation is a Non-Jury Action
VII. DISCOVERY
9-42  Means of Discovery
9-43 Reasonably Calculated to Lead to Admissible Evidence
9-44 Work-Product Privilege Viewed Narrowly
VIII. TRANSFER OF FEES AND COSTS
9-45 Attorney Fees
9-46 Interest
IX. LEGAL REPRESENTATION
9-47 Attorneys Assigned to Defend Insureds
9-48 Attorney-Client Privilege
9-49 Co-insureds with Crossclaims Entitled to Separate Counsel
X. LIMITATION OF ACTIONS
9-50 Statutory Limitations and Accrual of Actions
9-51 Impact of Insanity on Statute of Limitations
9-52 Discovery Doctrine Applicability
9-53 Policy Clause Enforceable
9-54 Disputes Only as to Amounts Owed
9-55 Mandatory Limit in Fire Insurance Policies
9-56 Claims Accrue at the End of the Underlying Action
9-57 No-Fault Act
9-58 Actions by an Estate
9-59 Minors Bound by Time Limitation
9-60 Equitable Principles Do Not Apply
9-61 Limitation on Medical Expenses
9-62 Limitation on Future Treatment
9-63 Reimbursement of Auto Insurer from Workers’ Compensation Insurer
9-64 Laches
XI. ARBITRATION
9-65 Definition
9-66 Legislative and Judicial Efforts to Stem Litigation
9-67 Recognition of Arbitration
9-68 Arbitrating a Controversy
9-69 Impact of ‘Errors of Law’ or ‘Insufficient Evidence’
9-70 Interest on Arbitration Awards
9-71 Award of Attorney Fees
9-72 Effect in Subsequent Litigation
9-73 Determination of Waiver
9-74 Participation No Bar to Challenge of Arbitrator’s Jurisdiction

Chapter 10: Agent and Broker Liability
I. AGENTS AND BROKERS DEFINED
10-1 Professional Intermediaries
10-2 Broker Defined
10-3 Agent Defined
10-4 Duty to Insured
10-5  Duty Not Dependent on Prior Relations
10-6 Dual Status of Intermediary
10-7 Determination of Legal Status of Insurance Intermediaries
II. CONDUCT AND LIABILITY
10-8 Standard of Care
10-9 Negligent Conduct of Broker
10-10 Broker’s Duty to Investigate Insurer
10-11 Liability as a Matter of Law
10-12 Broker’s Negligent Investigation of Insured
10-13 Failure to Obtain Coverage
10-14 Improper Placement of Insurance
10-15 Failure to Advise of Policy Expiration
10-16 Agent’s Representations to Insured
10-17 Broker’s Negligent Acts
10-18 UM/UIM Coverage Endorsements
10-19 Failure to Read Policy as Comparative Negligence

Chapter 11: The New Jersey Property-Liability Insurance Guaranty Association Act and Unsatisfied Claim and Judgment Fund
I. THE NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION ACT
11-1 Overview
11-2 NJPLIGA
II. OPERATION OF THE ASSOCIATION
11-3 NJPLIGA Administration
11-4 The Purposes of the Act
11-5 Claims Covered by the Act
11-6 $300,000 Statutory Cap
11-7 Counsel Fees and Other Claim Expenses are Excluded
11-8 Priority of Payments
11-9 Immunity
11-10 Liability of Insured in Excess of Statutory Cap
11-11 Residency
11-12 Excess Insurance Issues
11-13 Prejudgment Interest
11-14 Relationship of NJPLIGA and Workers’ Compensation Insurance
III. UNSATISFIED CLAIM AND JUDGMENT FUND
11-15 Overview
11-16 PIP Recovery Under UCJF
11-17 Common Law Damages Under UCJF

Chapter 12: General Liability (CGL) Policies
I. Introduction
12-1 Overview
II. HISTORY OF GENERAL LIABILITY POLICIES
12-2 Early Policies Principally Covered Property Damage
12-3 Early Policies Required an ‘Accident’
12-4 Commercial Liability Policy Packages
12-5 Occurrence-Based Policies
12-6 1973 Revision of ‘Property Damage’ and ‘Occurrence’
12-7 The Modern Commercial General Liability Policy
12-8 Additional Coverage Available
12-9 Practitioners Must Look Carefully at Policy Form
III.  PARTS OF A GENERAL LIABILITY POLICY
12-10 Self-Contained Single Contract
12-11 Declarations
12-12 Insuring Agreement
12-13 Conditions
12-14 Exclusions
12-15 Definitions
12-16 Endorsements
IV.  ACCIDENT-BASED COVERAGE
12-17 Meaning of “Accident”
V.  OCCURRENCE-BASED COVERAGE
12-18 The Insuring Agreement
12-19 Occurrence
12-20 Damages
12-21 Bodily Injury
12-22 Property Damage
12-23 Construction Defect Coverage
12-24 Economic Losses
12-25 Trigger of Coverage
12-26 What Constitutes a Suit?
IV.  COVERAGE PERILS
12-27 Premises/Operations
12-28 The Products Hazard and Completed Operations Hazard
VII.  DUTY TO DEFEND
12-29 Defense Required for Covered Claim
VIII.  EXCLUSIONS
12-30 Expected or Intended Injury
12-31 Contractual Liability Exclusion
12-32 Liquor Liability Exclusion
12-33 Products Hazard Exclusion
12-34 Sistership Exclusion
12-35 Business-Risk Exclusion
12-36 Performance Exclusion
12-37 Workers’ Compensation and Employer’s Liability Exclusions
12-38 Pollution Exclusion
12-39 Damage to Property Exclusion
IX.  COVERAGE B: PERSONAL AND ADVERTISING INJURY
12-40 Introduction: Personal and Advertising Injury
12-41 Personal Injury Coverage
12-42 Advertising Injury
X.  MEDICAL PAYMENTS
12-43 Scope of Medical Coverage
12-44 Medical Exclusions

Chapter 13: Automobile Liability Policies
I. OVERVIEW
13-1 Compulsory Liability Insurance
13-2 Right to Maintain a Liability Claim
13-3 The Role of Unsatisfied Claim and Judgment Fund
II. LIABILITY INSURANCE POLICIES
13-4 Policy Must Conform to Statute
13-5 Primary Purpose of Liability Insurance
13-6 Insurance Business Affected with Public Interest
13-7 Interpretation Favors Coverage
13-8 Automobile Policy Language
III. VEHICLES AND PERSONS COVERED
13-9 Vehicle Coverage
13-10 Persons Covered
IV. LOSSES FROM OWNERSHIP, MAINTENANCE AND USE
13-11 Losses Arising Out of Use of the Automobile
13-12 Maintenance of a Vehicle
13-13 Scope of Coverage Under I.C.C. Rules
13-14  Bobtail Coverage
V. LOADING AND UNLOADING
13-15 Complete Operations Doctrine
13-16 Loading and Unloading Coverage Required by Statute
13-17 Fact Specific Loading and Unloading Cases
13-18 The ‘Borrower’ Exception
13-19 Attempt to Limit Scope of Loading and Unloading
VI. SELF-INSURANCE
13-20 Self-Insurer Requirements
13-21 Self-Insurers’ Coverage Obligations
VII. OTHER COVERAGE ISSUES
13-22 Insurance Required for Rental Vehicles
13-23 Other Insurance Coverage

Chapter 14: Personal Injury Protection (PIP) Coverage
I. GENERALLY
14-1 The Purpose of the Statute
14-2 Legislative Background
14-3 Constitutionality of the No-Fault Act
14-4 Other Matters
ii. AUTHORITY OF INSURANCE COMMISSIONER
14-5 Commissioner Must Comply with Statutory Intent
III. RIGHT TO SUE THIRD PARTIES FOR COMPENSATORY DAMAGES
14-6 Verbal Threshold
IV. COVERAGE REQUIREMENTS
14-7 Scope of Coverage
V. RULES APPLICABLE TO BENEFITS
14-8 The Law of Benefits Payments
14-9 Double Recovery Prohibited
VI. TYPES OF PIP COVERAGE POLICIES
14-10 Standard Policy
VII. PIP COVERAGE BENEFITS
14-11 Benefits Provided by PIP
14-12 Qualifications for Benefits
VIII. BUYER’S GUIDE AND NOTICE
14-13 Requirement of Buyer’s Guide
IX. FAMILY MEMBERS
14-14 Who is Covered as a Family Member
X. OTHER EXCLUSIONS FROM COVERAGE
14-15 Intentional Conduct Exclusion
XI. PEDESTRIAN COVERAGE
14-16 Pedestrians
XII. VEHICLES THAT QUALIFY AS ‘AUTOMOBILES’
14-17 Definition of ‘Automobile’
XIII. THE AUTOMOBILE-ACCIDENT NEXUS
14-18 What is an Accident?
14-19 The Automobile-Accident Nexus
XIV. BENEFITS
14-20 Medical-Expense Benefits Generally
14-21 Income Continuation
14-22 Essential Services
14-23 Survivor Benefits
14-24 Funeral Benefits
XV. LIMITATION OF ACTIONS
14-25 Statutory Limits on Actions
XVI. TIME FOR PIP PAYMENT
14-26 Time Limit for Benefits Payment
XVII. ARBITRATION
14-27 Arbitration for Dispute Resolution
XVIII. FEES AND COSTS
14-28 Fees and Costs
XIX. RIGHT OF INSURER TO OBTAIN INFORMATION
14-29 Information Gathering by Insurers
XX. INTER-INSURER DISPUTES
14-30 Allocating Financial Responsibility Among Insurers

Chapter 15: Uninsured and Underinsured Motorist Coverage
I. INTRODUCTION
15-1 Overview
15-2 Statutory Requirements for UM and UIM Coverage
II. UM COVERAGE
15-3 UM Coverage Generally 
15-4 Required UM Coverage
15-5 Self-Insurance and UM
15-6 What is an Uninsured Vehicle?
15-7 When is a Vehicle Not Uninsured?
15-8 Issues Surrounding Issuance and Interpretation of the UM Endorsement
15-9 UM Recovery
15-10 Who is an Insured?
15-11 Claimants Not Named on Policy
15-12 Family Member Issues
15-13 An Accident ‘Arising Out of the Ownership, Maintenance or Use’
15-14 Notice
15-15 What is the Amount of the UM Claim and Who Pays It?
15-16 Amount of Coverage Available
15-17 Workers’ Compensation Issues
15-18 Allocation Among More than One UM Policy
15-19 Claimant’s Option to Proceed Against UM Insurers
15-20 UM and Bad Faith
15-21 ‘For Fee’ Exclusions Unenforceable
15-22 Failure to Maintain Medical Expenses Coverage Bars Recovery
III. UIM COVERAGE
15-23 Introduction
15-24 UIM History
15-25 Definition of ‘Underinsured’
15-26 UIM Coverage is Optional
15-27 UIM Coverage Cannot be Stacked
15-28 Differences Between UM and UIM Coverage
15-29 Single Endorsement Allowed for UM and UIM Coverage
15-30 Self Insurance and Public Entities
15-31 UIM Recovery
15-32 When is a Vehicle Underinsured?
15-33 Is the Vehicle Underinsured?
15-34 Primary and Excess UIM Coverage
15-35 UIM Recovery and Longworth—The ‘Roadmap’ to UIM Recovery
15-36 Proration of Multiple Policies Applicable to UIM Claims
15-37 Total Limits of Tortfeasor Must be Less than Total UIM Limits
15-38 Non-Auto Tortfeasor Limits Compared to UIM Limits
15-39 No Proration for Specialty Policies
15-40 Exclusions May Bar UM/UIM Coverage
IV. NOTIFICATION OF OPTION TO PURCHASE UM/UIM COVERAGE; RELATED CAUSES OF ACTION
15-41 Overview
15-42 Statutory Requirement
15-43 Satisfying Requirement to Notify Insured of Options
15-44 Sources of Breach of Duty to an Insured: UM/UIM Context
15-45 Broker Not Required to Initiate Contact
15-46 Limited Causes of Action Against Producers
V. ARBITRATION
15-47 Introduction
15-48 Issues to be Decided
15-49 Arbitration Procedure
15-50 Statute of Limitations
15-51 UM Arbitration Issues
15-52 Impact of Third-Party Settlement on Judicial Estoppel
15-53 UIM Arbitration Issues
15-54 Aggregate Liability Determines UIM Coverage
VI. PROCEDURAL ASPECTS OF UIM CLAIMS
15-55 The Right to Trial
15-56 Wrongful Death Actions for UM and UIM Benefits
15-57 Per Quod Claims
15-58 Circumstances Under Which Host Vehicle Coverage is Primary
15-59 Offer of Judgment Applicable to UM/UIM
15-60 Statutes of Limitations and Insurer Conduct
15-61 Class Actions in UM/UIM Cases

Chapter 16: Homeowner Policies
I. Overview
16-1 Structure of a Homeowner Policy
16-2 Types of Homeowner Policies
16-3 Liability Coverage Analysis
16-4 Claims for Damage and Loss
II. DWELLING AND CONTENTS COVERAGE
16-5 Coverage A—The Dwelling
16-6 Coverage B—Other Structures
16-7 Coverage C—Personal Property
16-8 Coverage D—Loss of Use/Additional Living Expenses
16-9 Additional Coverages
III.  FIRST-PARTY COVERAGE
16-10 Insured Members of Household
16-11 Coverage Limited to Identified Premises
16-12 Applicable Exclusions
16-13 Wind or Water Loss
16-14 Causation Which Includes an Insured Peril
16-15 Theft or Mysterious Disappearance
16-16  Impairment to Structural Integrity: Reasonable Expectations
16-17  Mold Loss
16-18 Payment for Structures
16-19 Actual Cash Value: The Broad Evidence Rule
16-20 Constructive Total Loss
IV. LIABILITY COVERAGE
16-21 Coverage Limited to Identified Premises
16-22 Applicable Exclusions
V. EXCLUSIONS
16-23  Criminal Conduct Exclusions
16-24 Business Pursuits Exclusion
16-25 Motor Vehicle Exclusions
16-26 Intra-Family Exclusion
16-27 ‘Arising Out of’ Exclusion

Chapter 17: Professional Liability Policies
I. Introduction
17-1 Overview
17-2 Claims-Made Policies vs. Occurrence Policies
17-3 Claims-Made Policies
II. POLICY PROVISIONS
17-4 Common Insuring Agreements in Professional Policies
17-5 The Effect of a Deductible
17-6 Claims Expenses
17-7 Professional Acts and Services
17-8 Retroactive and Extended Discovery Clauses
17-9 Varying Policy Provisions
17-10 Duty to Defend Concepts
17-11 Separate Trial on Duty to Defend
III. CLAIMS-MADE POLICIES
17-12 Essentials of Coverage
17-13 Notice: No Appreciable Prejudice
IV.  CLAIM AND DISPUTE RESOLUTION
17-14 Disputes Among Insurers
17-15 Effect of Consent to Settle and Deductible Clauses
17-16 Criminal Conduct as Affecting Coverage
17-17 Scope of Professional Association Coverage
17-18 Application for Professional Liability Coverage
17-19 Effect of Misrepresentation
V. COVERAGE FOR DIRECTORS AND OFFICERS
17-20 Directors and Officers (D&O) Liability Policies
17-21 D&O Exclusions
VI. DIMINISHING LIMIT POLICIES
17-22 Policies in Which the Limits Are Reduced by Legal Costs
VII. MEDICAL MALPRACTICE COVERAGE
17-23 Mandatory Coverage for Doctors and Podiatrists
17-24 Rescission of Medical Malpractice Policies for Fraud

Chapter 18: Life, Accident and Health Policies
I. Introduction
18-1 Calculability of Risk
18-2 Definition of Life Insurance
18-3 ‘Accidental Means’ Requirement
II. INSURABLE INTEREST
18-4 Parties with Insurable Interest
III. STATUTORY REQUIREMENTS/INDIVIDUAL LIFE POLICIES
18-5 Standardization of Policies
18-6 Grace-Period Requirements
18-7 Ten-Day Cancellation Period
18-8 Reinstatement of Policy
18-9  Statements in Application as Part of Policy
18-10 Other Policy Requirements
18-11 Insured as Owner of Policy for Loans
18-12 Right of Insurer to Waive
18-13 Manner of Premium Payment
18-14 Limitation on Time for Suit
18-15 Life Policy Incontestability
18-16 Reformation Due to Age Discrepancy
18-17 Readability Requirements
IV. APPLICATION FOR INSURANCE
18-18 False Statements
18-19 Two-Year Contestability Limit
18-20 Two-Year Limit on Equitable Fraud Actions
18-21 Fraudulent Misrepresentation Extends Incontestability
18-22 The Manzo Doctrine
18-23 Nature of the Application Question
18-24 Insurer Has No Duty to Inquire
18-25 Admissible Evidence
18-26 Obligation to Advise Policy Applicant of Health Risks
V. DEATH BY ACCIDENT OR ACCIDENTAL MEANS
18-27 Accident Independent of Other Causes
18-28 Primary Test for Determination of Coverage
18-29 Trauma Inflicted by Insured’s Own Illegal Conduct
VI. BENEFICIARIES
18-30 Beneficiary’s Rights
18-31 Person, Not Relationship, Decides Beneficiary
18-32 Substantial Compliance with Policy Terms
18-33 Change of Beneficiary Received After Death
18-34 Effect of Marriage or Termination of Marriage on Beneficiary
18-35 Court Can Order Spouse to Obtain Insurance
18-36 Compliance with Policy Terms Absolves Insurer
18-37 The Effects of Careless Record Keeping
18-38 Insurer Not Liable for Forged Payment Check
VII. MURDER INVOLVING BENEFICIARY
18-39 Beneficiaries Who are Murderers Cannot Recover
VIII. SUICIDE
18-40 Suicide a Defense to Payment
18-41 Suicide Exclusion in Policy Allowable
18-42 Burden of Proof on Additional Benefits Claim
IX. PROOF OF DEATH
18-43 Requirements for Presumption of Death
18-44 Determination of Death
18-45 Probate No Bar to Insurer Challenge

Chapter 19: Employment-Related Insurance Issues
I. Introduction
19-1 Overview
19-2 Potential Sources of Coverage for Employment-Related Acts
II. TYPES OF EMPLOYMENT-RELATED POLICIES
19-3 General Liability Policies
19-4 Workers’ Compensation and Employers’ Liability Policies
19-5 Homeowner Policies
19-6 Employment Practices Liability Policies
19-7 Coverage of Emotional Distress Claims Arising Out of Employment Situations
III. EMPLOYMENT-RELATED DUTY TO DEFEND ISSUES
19-8 Defense for Employment-Related Claims
IV. PROTECTION FOR EMPLOYERS FROM EMPLOYEE CONDUCT
19-9 Employee Dishonesty Policies
V. ADMINISTRATION OF WORKERS’ COMPENSATION POLICIES
19-10 Jurisdiction to Decide Policy Coverage Issues
19-11 Employer’s Obligation to Employee under the Workers’ Compensation Act
19-12 Cancellation Procedure
19-13 General Contractor Responsible for Uninsured Subcontractor
19-14 Employee’s Right of Action Under the Workers’ Compensation Policy
19-15 Notice or Knowledge of Injury by Insurer
19-16 Restrictions on Limitation of Liability

Chapter 20: Property Insurance and Fire Insurance
I. Introduction
20-1 Overview of Property Insurance
II. TYPES OF PROPERTY INSURANCE
20-2 Types of Policies
20-3 Differences Between First- and Third-Party Insurance
III. MISCELLANEOUS FIRST-PARTY POLICY ISSUES
20-4 Construction and Interpretation of First-Party Policies
20-5 Appraisal
20-6 Inventory Lists
20-7 Bad Faith Claim Handling and First-Party Insurance
20-8 Trigger of Coverage Under First-Party Policy
20-9 Collapse Peril
20-10 Increase of Hazard
IV. FIRE INSURANCE POLICIES
20-11 Development of the Standard Policy
20-12 Issues Raised by Fire Policies
V. STANDARD REQUIREMENTS AND FIRE POLICY FORMS
20-13 New Jersey Statutory Requirements for Fire Insurance
VI.  FIRE AS THE BASIS FOR RECOVERY
20-14 The Elements of ‘Fire’
VII.  INSURABLE INTEREST
20-15 The Test for Insurable Interest
VIII.  OTHER INSURANCE
20-16 Primary Excess Coverage
IX. CANCELLATION OF FIRE POLICY
20-17 Notice Requirements
20-18 Burdens of Proof Regarding Cancellation
X.  ACTUAL CASH VALUE
20-19 The Measure of Loss: Actual Cash Value
XI.  MISCELLAnEOUS POLICY PROVISIONS AND ISSUES
20-20 Insurer Protections
20-21 Intentionally Set Fires
20-22 Innocent Co-insured’s Right to Recover
XII.  RIGHTS OF MORTGAGEES
20-23 Mortgagor and Mortgagee as Beneficiaries
20-24 Mortgagor’s Obligation to Keep Policy in Force
20-25 Independent Contract Created
20-26 Mortgagee’s Use of Proceeds
XIII. FIRE LOSS LITIGATION
20-27 Choice of Law
20-28 Time for Filing Suit
20-29 Notice to Insurer Tolls Limitations Period
XIV. SUBROGATION RIGHTS
20-30 Assignment by Insured
20-31 Tortfeasor’s Right to Legal and Equitable Defenses
20-32 Indemnity Limited to Amount Insurer Paid

Chapter 21: Insurance Coverage for Environmental Claims and Other Latent Injury
I. Introduction
21-1 Litigation Overview
II.  DUTY TO DEFEND
21-2 Duty to Defend: Covered Allegations
21-3 Duty to Defend: PRP Letters
21-4 No Duty to Defend: Irresolution of Coverage Issues
21-5 No Automatic Defense of Underlying Action
21-6 Morton International: Discussion of Duty to Defend
21-7 Continued Debate on the Duty to Defend Underlying Environmental Claims
21-8 Allocation of Defense Costs Among Covered and Noncovered Claims
III.  CHOICE OF LAW
21-9 Introduction to Choice of Law
21-10 Choice of Law: Basics
21-11 Choice of Law: Insurance Policies Generally
21-12 Choice of Law: Environmental Insurance Disputes
21-13 The Site-Specific Approach
21-14 Determining the Location of the ‘Risk’
21-15 Summary of Choice of Law and Environmental Insurance
21-16 A Trilogy of New Jersey Supreme Court Cases
21-17 Waste Generated in New Jersey Predictably Disposed of in Another State
21-18 Insured’s Status as a New Jersey Resident
21-19 Disputes Surrounding Multiple Filings in Different Jurisdictions
IV.  COMMON DISPUTES AND THE BASIC INSURING AGREEMENT
21-20 Common Coverage Issues
21-21 Common Disputes over the Insuring Agreement
21-22 Common Disputes Over ‘Damages’
21-23 The Meanings of ‘Accident’ and ‘Occurrence’
V.  THE POLLUTION EXCLUSION
21-24 Overview of the Pollution Exclusion
21-25 ‘Sudden and Accidental’ Exclusion
21-26 The Absolute Pollution Exclusion
VI.  OWNED-PROPERTY EXCLUSION
21-27 Nature of the Owned-Property Exclusion
21-28 State of New Jersey v. Signo Trading International, Inc.
21-29 Groundwater and the Owned-Property Exclusion
VII.  TRIGGER OF COVERAGE
21-30 Introduction to Triggers of Coverage
21-31 Four Potential Triggers of Coverage
21-32 The Injury-In-Fact Trigger
21-33 The Manifestation Trigger
21-34 The Continuous-Trigger Theory
VIII.  ALLOCATION ISSUES
21-35 Introduction to Allocation
21-36 Weighted Allocation
21-37 Examples of Owens-Illinois Allocation
21-38 The Latitude Given to the Trial Judge
21-39 The Owens-Illinois Rule and Excess Insurance
21-40 Unanswered Allocation Issues
21-41 Allocation of Defense Costs
IX.  THE RIGHT TO A JURY TRIAL
21-42 No Jury Trial for Environmental Declaratory Actions
X.  DIRECT ACTIONS AGAINST INSURERS
21-43 Direct Action Authorized by the Spill Act
21-44 No General Direct Cause of Action Under the Spill Act
21-45 No Direct Action Against Insurers of Former Owners
21-46 Cases Recognizing Direct Action Against Insurers
XI.  ENVIRONMENTAL COVERAGE UNDER PERSONAL INJURY ENDORSEMENT
21-47 No Coverage for Environmental Property Damage

Appendix A: Glossary of Insurance Terms and Phrases
Appendix B: Statutes and Codes
Table of Cases
Index