Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
The 'Sophisticated Insured' Defense
A majority of courts consider the contra proferentem doctrine to be a pillar of insurance law. The doctrine requires ambiguous terms in an insurance policy to be construed against the insurer and in favor of coverage for the insured. A prominent rationale behind the doctrine is that insurance policies are usually standard-form contracts drafted entirely by insurers.
In certain cases, insurers have asserted two reasons for setting aside the contra proferentem doctrine: 1) the insured is a large, 'sophisticated' corporate entity which should not benefit from ambiguity in the policy when it had the bargaining power and/or expertise to modify the language; and 2) the insured actually participated in negotiating or drafting the policy and, therefore, should not benefit from ambiguity, when it is just as responsible as the insurer for any ambiguity that exists.
Insurers have invoked this 'sophisticated insured' defense frequently in the third-party insurance context, with mixed results. Compare, e.g., Eagle Leasing Corp. v. Hartford Fire Insurance Co., 540 F.2d 1257, 1261 (5th Cir. 1976), with CPS Chemical Co., Inc. v. Continental Insurance Co., 536 A.2d 311, 318 (N.J. Super. Ct. App. Div. 1988). The defense has been less common in the first-party context, although there is no particular reason to believe that courts would treat the sophisticated insured defense differently in this context. The first-party cases discussed below show that insurers have invoked the sophisticated insured defense in first-party cases not only to persuade the court to set aside the contra proferentem doctrine, but also to convince the court to construe notice and suit-limitation provisions strictly against the insured.
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.