Cpcu 530 Ch. 01

Front 1

Doctrine of stare decisis

Back 1

The principle that lower courts must follow precedents set by higher courts (applicable to common law)

Hint 1

"to stand by things decided"
-Common law is not absolute; it reflects the evolution of society’s values and attitudes
-• Common law can evolve through synthesis when reasoning and facts of prior cases are compared to current case.
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Front 2

threshold case

Back 2

a case where no precedent exists. New legal questions are presented

Front 3

Equity

Back 3

Fairness, or a body of principles constituting what is fair and right

Hint 3

Equity refers to providing fair remedies to cases. Seeks fair solutions beyond what traditional legal remedies can offer

Front 4

Criminal Law

Back 4

The branch of the law that imposes penalties for wrongs against society

Hint 4

-Government is responsible for prosecuting and punishing the perpetrators
-Defines offenses, regulates investigating, charging and trying accused offenders, establishes punishments for convicted offenders

Front 5

Civil Law

Back 5

A classification of law that applies to legal matters not governed by criminal law and that protects rights and provides remedies for breaches of duties owed to others

Hint 5

-Civil law here is a contrast to Criminal law and is different from the “civil-law system.”
-Injured party usually seeks reimbursement in the form of money damages
-Burden of proof
---Common law = BARD (beyond a reasonable doubt)
---Civil case = less strict, POE (preponderance of the evidence)

Front 6

Substantive Law

Back 6

A classification of law that creates, defines, and regulates parties’ rights, duties, and powers

Front 7

Equal protection clause

Back 7

A part of the Fourteenth Amendment to the U.S. Constitution prohibiting state laws that discriminate unfairly or arbitrarily, and requiring equal treatment to all persons under like circumstances and conditions

Front 8

National Association of Insurance Commissioners

Back 8

An association of insurance commissioners from the fifty U.S. states, DC, and the five U.S. territories, whose purpose is to coordinate insurance regulation activities among the various state insurance departments

Front 9

Original jurisdiction

Back 9

The power of a court in which cases are initiated to hear those cases

Front 10

Diversity jurisdiction

Back 10

The authority of federal district courts to hear cases involving parties from different states that involve amounts in controversy over a legal minimum

Front 11

Writ of certiorari

Back 11

An appellate court’s order directing a lower court to deliver its record in a case for appellate review

Front 12

Conflicts of law

Back 12

A body of law that resolves questions when states’ laws conflict

Front 13

Administrative law

Back 13

The statutory laws that grant power to administrative agencies to act and the body of law that is created by administrative agencies themselves

Front 14

Allegation

Back 14

A claim made in the complaint by the plaintiff, specifying what the plaintiff expects to prove to obtain a judgment against the defendant

Front 15

Complaint

Back 15

The allegations made by a plaintiff in a lawsuit

Front 16

Pleading (n.)

Back 16

A formal written statement of the facts and claims of each party to a lawsuit

Front 17

Cause of action

Back 17

A plaintiff’s legal grounds to sue a defendant

Front 18

Answer

Back 18

A document filed in court by a defendant responding to a plaintiff’s complaint and explaining why the plaintiff should not win the case

Front 19

Counterclaim

Back 19

A complaint brought by the defendant against the plaintiff

Front 20

Motion

Back 20

A formal request for the court to take a particular action

Front 21

Motion to dismiss

Back 21

A request that a court terminate an action because of settlement, voluntary withdrawal, or procedural defect

Front 22

Motion for summary judgment

Back 22

A pretrial request asking the court to enter a judgment when no material facts are in dispute

Front 23

Discovery

Back 23

A pretrial exchange of all relevant information between the plaintiff and defendant

Front 24

Deposition

Back 24

A pretrial discovery tool involving oral examination of a witness to produce a written verbatim record

Front 25

Interrogatories

Back 25

Specific written questions or requests raised by one party to a lawsuit that the opposing party must answer in writing

Front 26

Subpoena

Back 26

A legal order to a witness to appear at a certain place and time to testify or to produce documents

Front 27

Direct examination

Back 27

Questioning one’s own witness during a proceeding

Front 28

Cross examination

Back 28

Questioning an opposing party during a legal proceeding to bring out information favorable to the questioner’s own position or to challenge the witness’s testimony

Front 29

Relevance

Back 29

A quality of evidence that suggests the evidence is more or less likely to be true

Front 30

Materiality

Back 30

A quality of evidence that that tends to establish a particular element of the claim that has legal significance

Front 31

Competence

Back 31

A quality of evidence that suggests the source is reliable and the evidence is adequate to justify admission in court

Front 32

Hearsay rule

Back 32

The rule of evidence that prevents the admission of out-of-court statements not made under oath by a person who is unavailable to testify

Front 33

General verdict

Back 33

A kind of verdict that entails a complete finding and a single conclusion by a jury on all issues presented

Front 34

Special verdict

Back 34

A kind of verdict reached by a jury that makes findings of fact by answering specific questions posed by the judge. The judge then applies the law to the facts as the jury has found them

Front 35

Res judicata

Back 35

A doctrine that bars parties to a lawsuit on which final judgment has been rendered from bringing a second lawsuit on the same claim or on related transactions

Front 36

Alternative dispute resolution (ADR)

Back 36

Procedures to settle dispute without litigation, including arbitration, mediation, and negotiation

Front 37

Mediation

Back 37

An alternative dispute resolution (ADR) method by which disputing parties use a neutral outside party to examine the issues and develop a mutually agreeable settlement

Front 38

Legislative rule

Back 38

A type of substantive administrative agency rule that comes from a statutory delegation of authority and that has the same force as a law enacted by Congress or a legislature

Front 39

Interpretative rule

Back 39

A type of administrative agency rule that interprets statutes, providing guidance for agency staff or regulated parties, but that lacks the force and effect of law and therefore is not binding on individuals

Front 40

Procedural rule

Back 40

A type of administrative agency rule that prescribes procedures for agency operations, legislative rulemaking and adjudication proceedings

Front 41

Standing to sue

Back 41

A party’s right to sue, as one who has suffered or will suffer a legal wrong or an adverse effect from an action

Front 42

Final order

Back 42

An administrative agency’s final conclusion or disposition of any material private right of a party, terminating an agency proceeding

Front 43

Exhaustion of administrative remedies

Back 43

The completion of all possible administrative procedures and appeals in a case; required before a party can appeal an agency action to a court

Front 44

Describe the civil-law and common-law systems

Back 44

A civil-law system has a comprehensive code of written laws or statutes. A common-law system is a body of law derived from court decisions as opposed to statues or constitutions

Front 45

Explain how the common law changes

Back 45

Common law changes through court examination of a precedent. A court may apply a precedent to new cases or discard it if it has lost its usefulness, or it may make landmark decision that depart from precedent

Front 46

Distinguish between civil and criminal law

Back 46

Criminal law applies to acts society deems so harmful to the public welfare that government is responsible for prosecuting and punishing perpetrators. Civil law applies to legal matters that are not governed by criminal law, protecting rights and providing remedies for breaches of duties owed to others

Front 47

Describe the provisions of the U.S. Constitution relevant to the insurance business

Back 47

• The constitution delegates powers to Congress to regulate commerce, levy and collect taxes, borrow money, and establish uniform laws on bankruptcy.
• Congress thus has implied powers to pass laws necessary to implement the powers expressly delegated.
• The Constitution’s Commerce Clause gives Congress the power to regulate commerce with foreign nations and among the states, including insurance.
• The Fifth Amendment’s Due Process Clause guarantees notice and a hearing before the federal government can deprive any person of life, liberty, or property.
• The Fourteenth Amendment extends the same protection in state government actions, which can give rise to a complaint by an insurer if the state changes a premium rate without giving sufficient notice to the insurer.
• The Fourteenth Amendment’s Equal Protection Clause also prohibits state laws that discriminate unfairly and protects both individuals and corporations

Front 48

Explain the role of the National Association of Insurance Commissioners (NAIC) in promoting uniformity in the states’ regulation of insurance

Back 48

The NAIC pools information to help regulators coordinate responses to changing conditions in the insurance marketplace. The NAIC also develops model laws, regulations and guidelines.

Front 49

Discuss how administrative agencies become sources of law

Back 49

Agency rules, regulations, and rulings have the full force of law and constitute the body of administrative law. The legislative delegation of rulemaking power to an administrative agency is constitutional as long as the legislation carefully defines the scope of the delegated power, the agency exercises its rulemaking power within the defined scope, and the rules are subject to judicial review.

Front 50

Identify the filing parties and the purpose of the complaint and the answer in a lawsuit

Back 50

• Plaintiff: party who files the complaint.
• Pleading: the first complaint filed with the court.
• Complaint: sets out the plaintiff’s allegations, explains why the plaintiff has a cause of action (legal grounds to sue), and states what remedy the plaintiff requests. The complaint also tells the court why it has jurisdiction over the matter.
• The defendant must file the answer to the complaint within the length of time specified in the summons that accompanies the complaint.
• The answer responds to the plaintiff’s complaint and explains why the plaintiff should not win the case. The answer may include counterclaims. It can also include only an entry of appearance, which neither admits nor denies any allegations in the complaint and states only that the defendant will appear in court.

Front 51

Explain the purpose of pretrial discovery and some of the tools used during discovery

Back 51

The purpose of discovery is for lawyers on both sides to gather as much information as possible about all allegations and evidence the parties might present. Discovered information enables the parties to know as much as possible before trial and prevents surprises. If testimony at trial contradicts information obtained during discovery, lawyers can use the pretrial evidence to challenge the evidence presented at trial. Discovery can sometimes lead to settlement once the parties know all the evidence. Some discovery tools include depositions, interrogatories, and subpoenas.

Front 52

Discuss the three requirements for evidence presented during a trial

Back 52

1. Is Relevant to the case
a. i.e. evidence regarding an insurance policy is not relevant to determining whether insured was negligent in an accident
2. Is Material
a. A fact can be relevant but not material. Example: make and model of car in accident is immaterial unless there was a physical defect in that model that caused or contributed to the accident
3. Has Competence (source is reliable)
a. Hearsay or expert witness evidence may not be competent

Front 53

Contrast two different decisions an appellate court might render regarding improper evidence presented at trial

Back 53

1. If appellate court finds that the trial court improperly admitted evidence that was prejudicial, or harmful, to the appellant’s case, the court can send the case back to the lower court for a new trial
2. Appellate may determine, instead, that the evidence, although improperly admitted at trial, did not prejudice the appellant

Front 54

When is alternative dispute resolution (ADR) binding on parties?

Back 54

ADR can be binding on parties when they have agreed in advance that it will be binding

Front 55

Explain the role of the mediator in alternative dispute resolution

Back 55

The mediator is a neutral third party who acts as a catalyst to help parties analyze their dispute, consider possible solutions, and devise a compromise formula

Front 56

Explain how mini-trials and court-sponsored mock summary jury trials can lead to negotiation of major disputes

Back 56

1. Lawyers or others familiar with the dispute present evidence and arguments to a panel that may include business executives or other professionals.
2. A neutral party, such as a retired judge or another expert, can act as mediator or issue an advisory opinion after the presentation of evidence and arguments
3. Because a mini-trial presents the issues to both parties in a dispute, it can encourage negotiation and settlement.
4. Summary jury trials are mock trials before juries. The parties an accept the jury’s advisory verdict, or the verdict can provide the basis for further negotiations toward settlement

Front 57

List the three types of administrative agency rules

Back 57

1. Legislative rules
2. Interpretative rules
3. Procedural rules

Front 58

What actions can an administrative agency take after it has reviewed all comments about a proposed rule

Back 58

1. Adopt the originally proposed rule
2. Make minimal or extensive changes to the rule
3. Nullify the proposed rule

Front 59

What must be included in an appropriate notice for an administrative agency adjudicatory proceeding?

Back 59

What must be included in an appropriate notice for an administrative agency adjudicatory proceeding?

Front 60

Describe the United States Constitutional limitations on agency investigations

Back 60

1. Fourth amendment protection against unreasonable searches and seizures
2. Fifth amendment protection against self-incrimination

Front 61

What is required before courts will review administrative agency decisions?

Back 61

1. Fourth amendment protection against unreasonable searches and seizures
2. Fifth amendment protection against self-incrimination

Front 62

What is required before courts will review administrative agency decisions?

Back 62

1. The plaintiff must have standing to sue
2. The agency must have issued a final order in the case
3. The plaintiff must have exhausted all administrative remedies

Front 63

4 Landmark cases that have moved the evolution of laws

Back 63

o Brown v. Board of Education
 Overruled previous cases condoning racial segregation in schools
o Miranda v. Arizona
 Requires police to inform suspects in criminal cases of their constitutional right against self-incrimination before questioning them. (Read them their Miranda rights)
o Paul v. Virginia (1869)
 Established that insurance is a contract delivered locally and governed by state law rather than federal law
o South-Eastern Underwriters Case (1944)
 Modified Paul v. Virginia in stating that federal law applies in some cases