A number of insurance law dissertations are invoked to provide guidance to lawyers and judges regarding the general insurance law condition. One of them is Couch on Insurance ( Couch ) published by Thomson Reuters. Merlin Law Group subscribes to a number of services that provide dissertation information on insurance law, including Couch in our Westlaw subscription. This service and information is not cheap. Thomson Reuters publishes a one-time purchase of the dissertation for $ 183, 493.00. The online advertisement for Couch states:
This new edition reflects the laws and practices of insurance issues today. It offers definitive treatment of virtually all types of insurance, including life, property, health and accidents, liability and compensation, car, fidelity guarantee, contract guarantee, group, reinsurance, annuities, government life and disability, ERISA and COBRA. Current topics in the insurance industry are treated, as well as insurance contracts, risks covered and commitments and guarantees. After being rewritten and reorganized by Steven Plitt, Daniel Maldonado and Joshua D. Rogers, who maintains an insurance dispute with Kunz, Plitt, Hyland, Demlong and Kleifield in Phoenix, the following authors are experienced litigation attorneys and experts in the insurance field
which will soon be published in the American Bar Association & # 39 ;s Tort, Trial and Insurance Practice Law Journal, COUCHS "PHYSICAL ALTERATION" FALLACY: ITS ORIGINS AND CONSEQUENCES has a stinging critique of Couch accuracy. The introduction explains the question:
Look at virtually every case of Covid-19 that benefits an insurer, and you will find a reference to section 148: 46 in Couch on Insurance. It's practically ubiquitous: insurance company courts refer to Couch as a 'common rule' on the meaning of 'physical loss or damage' words that are usually triggered by property insurance, including business income coverage. It has been cited, ad nauseam as evidence of a general consensus that all property insurance claims require certain "distinct, demonstrable, physical alterations to the property." Some insurance decisions actually replace a quote. to this section for an actual analysis of the specific language before the Court.
Couch is widely recognized as a significant insurance thesis, and courts have cited it for nearly a century. That respect began with the first edition written by George Couch and subsequent editions written by his successor.
This section, however, as formulated in the third edition of Couch, contains an unfortunate and serious error. Couch's obvious conclusion – that "direct physical loss" requires a "distinct, demonstrable, physical change" – is incorrect. It was wrong when Couch first did it in 1998, and it is wrong today.
As another well-respected dissertation puts it, "when an insurance covers physical loss of or damage to property," loss of property "requirement can be met by any" disadvantage "and a" disadvantage "may be present without it having there has been a physical change of the object. "the third edition. As originally published, it supported its claim by referring to five cases for support and two opposing cases, presenting the former as a "general" majority rule.
But none of these cases used the "distinct, detectable, physical change test" that Couch presents, and it was far from the majority rule. As of March 2020, there were at least thirty-five cases that adopted a broader rule (including many binding appeal decisions and several rulings of state supreme courts), and significantly fewer after the Couch test. from the thirteen current cases which then held the opposite.
We may never know why Couch got the law so deep back in this key issue. But one thing is clear: courts must stop listing it as sine qua non of what "physical loss or damage" means. It is not. If the courts, and in particular the federal courts, continue this path without Dealing with Couch's mistakes, it will have serious practical consequences. They risk violating decades of insurance laws and drastically limiting the scope of property insurance, which is the backbone of risk protection for homeowners, businesses and banks that lend to them. All of these policies are based on the same terms that Couch misunderstood. More immediately, the courts will deprive US companies of billions of dollars in coverage they paid for and need to survive the worst public health crisis in a century. Until Couch reckons on this error, busy trial and appeal judges cannot, and should not, trust that they give the straight answer to this fundamental question. (footnotes omitted)
After academically explaining why Couch can not be trusted in this important issue, and other dissertations find otherwise, the article concludes with the following:
This particular part of the sofa does not help courts in their efforts to faithfully enforce the law. Not only is there a flaw in the law, but it is urging courts to create a dangerous precedent that can sort out decades of real estate insurance legislation, which ordinary companies, banks and families rely on. If courts accept Couch's "physical change" mistakes, the results could be catastrophic. The subsequent legal regime may well deny policyholders the benefit of all the risk insurance they have purchased and, under pressure from the biggest health and economic dislocation in a century, send masses of policyholders into bankruptcy. It is both bad law and bad politics.
I will be curious if those who write and edit Couch will respond to these serious allegations. "Doing the right thing" when we have to be honest about the state of insurance law is what we pay dearly for with our subscription to Couch . If there is an error as this logically analyzed article suggests, it must be corrected as soon as possible. We will certainly send this article to our Westlaw account agent.
Thought For The Day
Accuracy is the twin brother of honesty; inaccuracy, dishonesty.
– Nathaniel Hawthorne