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Effect of Choice of Law on the Outcome in Insurance Disputes

While other bloggers are taking up lighthearted summer topics,'s Marc Mayerson tackles the knotty issue of choice of law and the implications that it has to determine the outcome of a case with this detailed post, Conflict of Laws and Insurance Disputes:  Choice of Law or Choice of Outcome? Mayerson describes the problem in this opening paragraph:

Most insurance policies are silent as to which state’s substantive law governs their terms. As a result, insurance-coverage lawyers often find ourselves deep into the world of choice of law and conflict of laws, a subject most of us sidestepped in our law-school education. Conflicts issues are (largely) untethered from the merits yet can be outcome determinative, so it is crucial to understand and focus on choice-of-law principles in complex insurance disputes, which can yield the application of different state laws within a single case to issues of contract formation, performance, and bad faith.

Mayerson's analysis then leads readers through real-world examples of differing outcomes that result from one state law versus another and how state courts determine which laws apply. Mayerson also examines different approaches to choice of law, ranging from contractual choice of law clauses, state statutes that govern choice of law or the Restatements approach, which lists factors for courts to consider in identifying the state with a more substantial interest in application of its law to the case.

If you haven't looked at choice of law questions since law school, take a look at Mayerson's piece. It's a great refresher on choice of law and a really interesting read.

Posted by Carolyn Elefant on August 23, 2006 at 03:51 PM | Permalink | Comments (2)


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