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How to Research Insurance Law   Tags: insurance  

Last Updated: Sep 10, 2014 URL: http://lawguides.bc.edu/insurance Print Guide RSS Updates

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Introduction

Be aware that insurance law is generally a matter of state law.

Pursuant to the McCarran-Ferguson Act, 15 U.S.C. Sec. 1011 et seq., the regulation of insurance is left to the states.  "No Act of Congress shall be construed to invalidate, impair or supercede any law enacted by any State for the purpose of regulating the business of insurance, unless such Act specifically relates to the business of insurance."  McCarran-Ferguson gives state insurance laws supremacy over federal statutes not specifcally about insurance, such as bankruptcy, securities regulation, antitrust and arbitration.  This is known as the McCarran-Ferguson Reverse Preemption Doctrine.  However, when Congress enacts federal legislation which specifically addresses insurance (for example, the Federal Crop Insurance Act or the Employee Retirement Income Security Act) the federal law controls.

 

Selecting An Appropriate Secondary Source

One of the most important steps in researching insurance law is consulting an appropriate secondary source.  Secondary sources will give you:

  • an overview
  • guidance
  • keywords and legal terms of art
  • help with spotting legal issues
  • primary legal source citations

This LibGuide includes many insurance secondary sources, arranged by type of resource (eg. policy forms, digests, treatises, legal periodicals) and by topic under the Topical Insurance Treatises tab (eg. auto insurance, life insurance, liability insurance, bad faith).  Consider the type of law you're researching when selecting your secondary source.  For example, if you are researching specific policy language, you'll want to consider policy forms, annotated policies, digests, ALRs and treatises.  If you are researching an insurance statute, you may want to consider annotated statutes, NAIC model laws, statutory surveys and legislative history.  Also consider the insurance topic involved in your research.  For example, if your research problem involves an uninsured motorist, you should consult a specialized treatise on uninsured motorist benefits.

There are two premier insurance treatisesCouch on Insurance 3rd and Holmes Appleman on Insurance 2nd.  These treatises are discussed in greater detail under the comprehensive insurance treatises tab.

 

How to Approach An Insurance Research Problem

There are 4 sources of legal obligations in insurance law:  policy terms, common law doctrines, statutes and regulations.  Think of insurance law as layers of law creating or modifying the parties' legal obligations.  A good research strategy will include each of the four sources.  Prepare a research checklist to make sure you touch all the bases.  Below is a sample checklist for researching the meaning and validity of a policy provision:

1) Read the policy terms carefully. 

2) Consult an appropriate secondary source to spot issues and find primary law citations.

3) Check for caselaw interpreting the policy language at issue. 

4) Consider whether common law doctrines invalidate or modify the policy terms or impose additional obligations on the parties?

5) Check for a controlling state or federal statute.  If there is a controlling state statute, is the statute based upon a NAIC model law?

6) Check for a controlling state or federal regulation. If there is a controlling state regulation, is it based upon a NAIC model regulation?

7) Check for other administrative legal materials, such as administrative rulings, guidelines or bulletins.

8) Update and verify your research with citators like Shepard's and KeyCite.

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Karen Breda
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