Last Class Review

1. Last Class Review • Preexisting Conditions: health condition you have had before your first day of coverage • Bullwinkel – Pre-Hipaa Holding • Sarchett – deference to health care provider • Ambiguity revisited • Reasonable expectations revisited • Friendly Fire v. Hostile fire

2. Homeowners’ Insurance • Broad scope of homeowners’ insurance • Stanley • Open question: whether child care for pay is excluded as a "business pursuit" or is an exception to this exclusion because it is "incident to non-business pursuit"

3. Three Approaches • Stanley • Child care for compensation was a business pursuit not ordinarily incident to non-business pursuits • Is the contract ambiguous? • Yes. But what all know what it means on this point, Stanley says • Even Stanley agrees casual babysitting is different. Why? • As of 1989, Maryland follows Stanley • Stanley is criticized because it focuses too much on the business nature of child care and always renders the exception to the exclusion inapplicable in the child care context regardless of the specific activity that actually created the liability

4. Child Care and Coverage • Second approach: anti-Stanley • This approach has been criticized as too broad because the "ordinarily incident to non-business pursuits" exception swallows the "business pursuits" exclusion, at least in the context of child care. • Third approach • why did the loss occur? Was it because of the child care? Is the type of accident associated with the injury associated with child care

5. Stanley Notes • Note 1: types of homeowners insurance • Automobile exclusion • Negligent entrustment • Split of authorities

6. Intentionally Caused Losses • Haht • Facts: boy didn’t mean to kill but meant contact • Majority: 11 year old boy can’t form intent • Dissent: intent is intent • Believes ruling is result oriented • Nationwide v. U. of Ill • A little bit of intent is enough

7. General Commercial Liability Policies • GATX • Employees stealing • Is stealing employees an accident or an even causing an occurrence under an insurance policy? • Goes to heart of what is an occurrence with respect to accident v. intent.

8. Toxic Tort and Repeat Exposure Claims • Possible Methods to Determine Coverage • Date of exposure • Date of Injury in Fact • Discovery of harm • Continuous trigger

9. Coverage for Punitive Damages • Why should punitive damages be covered? • Why shouldn’t punitive damages be covered?