Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 109

In spite of the sustained criticism from insurers and allies, the RLLI was adopted by the ALI at its 2018 Annual Meeting by an overwhelmingly positive vote91. Given that the Institute was concerned enough in May 2017 to postpone final adoption of the RLLI, the ease of adoption in May 2018 came as a surprise to many. It was almost eerily without bellicosity in light of the strong lobbying that preceded the Meeting.

As was the case with earlier meetings, insurers or insurer counsel brought the bulk of the written motions submitted. Only one motion was submitted by policyholder counsel seeking a clarification of the circumstances in which an insurer might rescind a policy due to failure to disclose a known loss92. It passed by a roughly 9:1 ratio.In response to one of the motions made by prominent insurer counsel, the Reporters were persuaded to increase the requirements of disclosure to insurers if a policyholder was to settle a claim without insurer consent93. This friendly or hybrid motion passed by a similar 9:1 vote.

More partisan motions favored by insurers lost by similar lopsided votes, including two motions designed to bar courts from considering industry custom and practice in construing policy language unless the policy text was facially ambiguous94. Comment c to RLLI §3 provides that courts may consider such evidence as part of the background or context used to understand the words in the policy – and that this does not count as permitting extrinsic evidence to countermand clear policy text95. These motions lost, again by a very lopsided, 9:1 vote.

One significant insurer motion sought to strike the word “substantial” from the portion of the RLLI dealing with rescission of an insurance policy due to material misrepresentation. The section provided that a “material” misrepresentation of fact was one that, if known, would have caused the insurer not to have issued the policy in question or to have issued it on “substantially” different terms or for a “substantially” higher premium. The motion argued that this was too demanding a definition of materiality that would unduly hinder insurers in rescinding policies in cases where they had been given incorrect information. The motion failed by a 9:1 ratio.

Another significant motion involved an effort to delete commentary in §27, Comment e, which dealt with the issue of whether an insurer that had unreasonably failed to settle a case that then resulted in both compensatory and punitive damages against the policyholder could limit its liability to the policyholder to only the compensatory damages liability in states where public policy prohibits insurance for punitive damages96. Although case law, in the form of decisions in California, Colorado, and New York was to the contrary, the RLLI Reporters noted that two of these cases were decided on 4-3 votes97, with strong dissents that the Reporters (and the bulk of the Advisers) found persuasive98. The ALI membership rejected the insurer argument that a Restatement should not be adopting a dissenting, the amendment was defeated –also by the 9:1 ratio– implicitly concluding that the better rule of law can in some circumstances be contained in a dissent.

The nature of insurer complaints against the RLLI may have explained some of the Institute’s support for the Reporters and the project. As one cerebral insurer-side attorney put it, the ALI “responds to light, not heat99”. Many of the insurer attacks on the RLLI had been long on heat – e.g., claims that the RLLI was unsupported in law, announced many new rules of law, was lopsidedly pro-policyholder, violated states’ rights or separation of powers, would endanger the financial health of the insurance industry, would result in a large increase in premiums. These criticisms were so outlandishly wrong that they may have operated as the thirteenth chime of the metaphorical clock, making it hard to credit the better arguments made by insurers.

In its ALI electioneering, insurers displayed a tin ear for the audience. When lobbying Republican-dominated state legislatures such as those of South Carolina, Iowa, Nebraska, Texas or Utah (whose governors signed the anti RLLI letter discussed at the beginning of this article), invoking Antonin Scalia may operate as an effective signaling device because it has become an article of faith on the American Right that Scalia was the best modern Supreme Court Justice100. Mere incantation of his name may be all that is needed to persuade the average Republican politician.

The ALI, by contrast, although a most judge-friendly organization, has avoided having favorite or outcast judges. It respects Supreme Court Justices of all ideological stripes. But elements of the insurance industry appear to have wrongly assumed that the same sort of litmus tests, dog whistles, and signaling devices that work among the state officials or electorate at large would work with the ALI membership and leadership. Hence, the continued references to the Scalia criticism of Restatements, relentless to the point of comedy or boredom.

Irrespective of the substantive positions espoused its black letter, the RLLI contains extensive scholarship about insurance reflected not only in the comments but also in the Reporters’ Notes. The Notes in particular collect cases and commentary both supporting and opposing the RLLI black letter. As a consequence, the RLLI can serve as a valuable legal research tool for lawyers and courts, even though some lawyers and judges will undoubtedly disagree with some of its black letter provisions or commentary or illustrations, which is hardly unusual in a 50-section, 500-page (with Comments and Reporters’ Notes) document.

That said, does the RLLI lean in the policyholder’s direction? On some issues. The duty to defend provisions101 and attitude toward contract construction and the role of extrinsic evidence and reasonable expectations analysis102 can be described as more favorable to policyholders than the approaches of many courts. But on other issues – some of them affecting billions of dollars in coverage liability, the RLLI takes a decidedly pro-insurer tilt. Most prominently, it adopts pro-rata allocation of insurer responsibility in the case of long-tail mass torts rather than the “all sums” approach103. RLLI §39 regarding attachment of excess insurance permits insurers to avoid coverage even for claims reaching the excess layer and even if the full amount of an underlying limit has been paid simply because the payment was by the policyholder rather than an underlying insurer, a development that in many cases does not increase the excess insurer’s risk and does not justify the windfall of letting the excess insurer walk away without payment. In sum, the RLLI is a document that largely tracks existing law.

Although the RLLI passed with ease, it remains to be seen whether it will be well received by courts. To date, the evidence is mixed. The RLLI has been cited roughly 30 times in judicial decisions, including citations to drafts104. It is too early to engaging in precise empiricism regarding the impact of the RLLI. Early returns suggest relatively low visibility in that scores of insurance cases are decided each day so the potential for use of the RLLI is potentially vast but as yet unrealized. But neither has the RLLI met with strong judicial opposition. In many or perhaps even most of these cases, the RLLI was not a determinative factor or even influential in the court’s decision but was cited only in passing for a proposition of law or as part of a supporting citation for a decision already made by the court105. But in several decisions, the RLLI received serious focus, with courts adopting an RLLI position106 or rejecting it107.

At this juncture, it seems safe to say that the RLLI has not been the sweeping anti-insurer force alleged by the insurance industry nor has it been a boon to policyholders. Rather, as one might expect, the RLLI has had impact akin to a well-regarded treatise or the guidelines issued by a respected bar association. It remains possible that the RLLI will gather momentum that may place it in the more influential category of the Contract and Tort Restatements but early signs are not that encouraging even if the RLLI appears safe from judicial rejection notwithstanding the torrent of insurer criticism.