My latest insurance information video... How coinsurance works on your business property insurance policy.
The Water of the Flood
Courtesy of the institute of creation research, this article succinctly makes it point so well I wanted to share it:
From Where Did the Water Come?
December 30, 2009
"And the waters prevailed exceedingly upon the earth; and all the high hills, that were under the whole heaven, were covered." (Genesis 7:19)
Lack of an answer to this question led many theologians in the early 1800s to abandon the biblical doctrine of the global Flood in favor of uniformitarianism. At the time, scientists were saying that the concept of a young earth had been disproved and that since the mountains had been around since before the time of Noah, obviously they couldn't have been covered by the Flood waters. There is simply not enough water to cover the present mountain ranges, they said. Theologians responded by proposing a local flood incapable of laying down the fossilbearing rock of the world. Even today, most evangelical theologians, denominations, and seminaries teach this compromise.
The world before the Flood was quite different from the world today. A global water vapor canopy encircled the earth and contained vast amounts of water vapor (Genesis 1:6-8). Furthermore, the topography was much less pronounced, since all present mountain ranges are made up of sedimentary rocks or volcanoes attributable to the Flood. Since it didn't rain before the Flood (Genesis 2:5), yet rivers flowed (v. 10), there must have been great subterranean reservoirs of water.
At the proper time, these "fountains of the great deep" (Genesis 7:11) spewed out their contents and the "windows of heaven were opened" as the canopy was precipitated. The breaking up of those "fountains" which were on the sea bottom implies great tsunamis elevating water to an abnormal level on land. Coupling these mechanisms with the fact that most of the earth (70 percent) is still covered with water in sufficient quantity to cover the entire earth (if it were smoothed out) to a depth of about 7,500 feet, we can conclude that the biblical story is, indeed, quite reasonable. JDM
Institute for Creation Research | 1806 Royal Lane | Dallas | TX | 75229
Is the information in a statement by an Insured to an Insurer privileged?
Sangaralingam v. Sinnathurai, [2009] O.J. No. 5211 (Master).
During examinations for discovery, information gathered by insurance companies during its process of investigation into a claim, are sometimes the subject of dispute.
For example, counsel for an insurer will usually assert privilege over the document containing a statement made by an insured to the insurer during the course of investigation.
The document itself is privileged. But the question arises whether the "material information" in the statement is also privileged.
Master Short recently dealt with a motion in which the plaintiff sought an Order directing a defendant to disclose information contained in a statement delivered to his insurer following a motor vehicle accident.
Counsel for the plaintiff asserted that even if the statement is privileged, the contents of the statement must be disclosed on discovery.
Master Short quoted Justice Lane in Greco v. Thornhill, [1993] O.J. No. 1347, who wrote that information which is relevant may not be withheld from disclosure merely because it has also been incorporated into a privileged document. For example, with respect to surveillance the questioner is entitled to know what the investigator saw, his knowledge, information and belief, but not to have the document itself. However, the situation is different in the case where the witness has already testified to the facts and what is being requested is not the facts but what the witness said about the facts to her insurer. Justice Lane held that such questioning is clearly devoted solely to the credibility of the witness and the witness is not obliged to respond.
Master Short held that a witness who has been examined for discovery and makes him or herself available to the party opposite to answer any relevant questions is not obliged to then also provide the material information contained in a statement made to its insurer.
During examinations for discovery, information gathered by insurance companies during its process of investigation into a claim, are sometimes the subject of dispute.
For example, counsel for an insurer will usually assert privilege over the document containing a statement made by an insured to the insurer during the course of investigation.
The document itself is privileged. But the question arises whether the "material information" in the statement is also privileged.
Master Short recently dealt with a motion in which the plaintiff sought an Order directing a defendant to disclose information contained in a statement delivered to his insurer following a motor vehicle accident.
Counsel for the plaintiff asserted that even if the statement is privileged, the contents of the statement must be disclosed on discovery.
Master Short quoted Justice Lane in Greco v. Thornhill, [1993] O.J. No. 1347, who wrote that information which is relevant may not be withheld from disclosure merely because it has also been incorporated into a privileged document. For example, with respect to surveillance the questioner is entitled to know what the investigator saw, his knowledge, information and belief, but not to have the document itself. However, the situation is different in the case where the witness has already testified to the facts and what is being requested is not the facts but what the witness said about the facts to her insurer. Justice Lane held that such questioning is clearly devoted solely to the credibility of the witness and the witness is not obliged to respond.
Master Short held that a witness who has been examined for discovery and makes him or herself available to the party opposite to answer any relevant questions is not obliged to then also provide the material information contained in a statement made to its insurer.
What Is The Difference Between Accidental Death Vs Whole Life Insurance?
By Lisa Olsen Posted in Life Insurance News
Accidental death, sometimes referred to accidental death and dismemberment insurance is a policy that pays out additional benefits if the policy holder’s cause of death is not a work-related accident.Death in a car accident or a climbing accident would qualify under this policy. Also, a portion of the funds would be paid out to the policy holder if they lost an appendage or one of their senses (sight, hearing) in an accident. This type of insurance is for accidental death only and would not pay a death benefit if the policy holder died from an illness, suicide or natural causes.
There are four types of accidental death insurance; Voluntary, Group Life Supplement, Travel Accident or Business Trip, and Defendants. Voluntary accidental death insurance would be purchased as a single policy. Group Life Supplement would be an additional purchase to supplement an existing policy. Travel Accident or Business Trip insurance is for accidents on trips, whether for business or pleasure. This type of policy would be ideal for someone who travels a lot. A Dependent’s policy could be purchased for any dependent including children and disabled adults.
Whole Life Insurance
Simply a whole life policy covers the whole life of the policy holder. Premiums are typically paid for a certain number of years (ten to twenty) but the insurance remains active for the entire life of the person or until they reach endowment age. The age of endowment is usually 95+ at which point the policy holder can request the cash value of the policy or is can be paid out like an annuity.
Which Is Better
These plans are very different and serve a very different purpose. Businesses will sometimes take out Business Trip Accidental Death on their employees that travel a lot, leaving a portion for the dependents of the policy holder and pocketing the rest. Accidental Death can be added as a supplement to whole life insurance but usually whole life insurance covers unexpected or accident death within the policy itself. However, it does not cover dismemberment like the Accidental Death policies.
Affordable Term Life Insurance Explained
Ensuring a families financial future is paramount when considering an affordable term life insurance policy and this requires the services of life insurance agents and brokers with knowledge and experience. The loss of the main income earner can destroy a family’s financial picture.
When making a choice between an independent broker or a company life insurance agent, consumers should consider that a life insurance broker will work with a wide range of companies and can compare policies and quotes for consumers, much faster and more efficiently. If consumers must choose to research companies on their own, they must be sure to obtain several quotes for comparison.
They ought to be sure to consider the long-term financial requirements that would need to be met in the case of death. This would mean the replacement of income until the death of a spouse and, or until children are no longer dependent.
When dealing with independent agents and brokers, remember that all states have licensing requirements for these professionals and consumers should be able to verify the existence of such a license in good standing with the state insurance department. Other considerations are the level of experience that might play an important role in the services that an insurance professional provides. Background and education are two important considerations when selecting an agent or broker.
A good resource for finding qualified insurance professionals is the National Association of Insurance and Financial Advisors (NAIFA), which provides a listing of agents. The NAIFA is made up of over 700 state and local associations, which includes 200,000 members.
With a term life insurance policy, the applicant will select the most appropriate period of coverage as well as the amount of coverage. When establishing the amount of a life insurance policy, the goal is to ensure financial independence for those who depend on them now financially. This could mean that the coverage amount represents an aggregate amount of income that would have to be replaced over a given period, or it may be an amount that, if invested, would return a regular income that could sustain a consumer beneficiary.
It is an option to choose their term of the life insurance policy that means that coverage will end on a specific date. The date that the policy terminates may be a time when children become dependent, or when a major debt such as a mortgage is scheduled to be paid off.
Other considerations like a business continuation plan may be a factor for business owners. This is especially true if the business depends greatly on one single individual, or a few select individuals within the firm. If the loss of one of these individuals would cause a great financial hardship for any reason, then a term life insurance policy could be established to support business operations after the loss. Logic would dictate that the term could be set to expire on that person’s retirement date.
Term life insurance quotes are an important financial endeavor. The best life insurance brokers will be informed, educated and will have the ability to formulate a plan for the consumer or firm that will best suit then needs of their dependents in the event of a loss.
What Do Provisions Mean For A Life Insurance Policy?
By Patrick Cooper Posted in Life Insurance News
Provisions in a life insurance policy are contracted statements that life insurance policies are required to follow. These are legal provisions prepared and stated in your life insurance policy. All life insurance policies have provisions.
Common Provisions
Some of the more common provisions in insurance policies include but are not limited to; a grace period, entire contract clause, incontestable clause, misstatement of age clause, war clause, suicide clause, double indemnity clause, policy change clause, and a payer benefit clause.
The grace period clause is a period of time when changes can be made. This can apply to anything within the insurance policy. The war and suicide clause make special provisions for death by suicide or in wartime. The policy change clause usually states the terms in which a insurance policy can be changed and to what degree.
Importance of Provisions
The provisions aren’t there to make your life harder they in fact make it a little easier. While some of the provisions are in there to protect the interest of the insurance company, many of them are there to protect the policy holder. It is important to know what specific provisions are written into your policy. You can always request that changes be made or extra provisions be placed into the policy before you decide to sign on the dotted line. Insurance companies aren’t always forth coming about certain provisions in their policies but many are open to questions.
Know Your Provisions
It is very easy to incur a penalty to your life insurance policy if you do not know what the specific provisions of your policy are. Read through your policy carefully and ask questions about things that you don’t understand or are unsure about. It is better to ask too many questions than not enough, especially when it comes to your financial future.
How to Buy Nonprofit Directors and Officers Insurance
My guide to nonprofit directors and officers insurance is available at my store.
Go Here
Includes a description of coverages, endorsements, issues to watch out for and a worksheet to help you compare proposals.
Go Here
Includes a description of coverages, endorsements, issues to watch out for and a worksheet to help you compare proposals.
U.S. District Court holds that language of policy endorsement trumps reason endorsement was written
In my last post I started discussing Whittaker Corp. v. Am. Nuclear Insurers, __ F.2d __, 2009 WL 4342512 (D. Mass.).
Whittaker and Textron were former owners and operators of property that was declared a superfund site because of nuclear waste. They sought coverage for associated costs from American Nuclear Insurers, or ANI. At issue was an endorsement called a Facility Form in which ANI promised to pay "all sums which the insured shall become legally obligated to pay as damages because of . . . property damage arsing from the nuclear energy hazard."
ANI argued that there was no coverage for the loss. It argued that the Facility Form must be viewed in the context in which it was drafted. It contended that the Facility Form is a "creature of statute," intended to carry out the legislative goals of the Price Anderson Act, which was conceived in response to "the risk of potentially vast liability in the event of a nuclear accident of sizable magnitude." The Act required nuclear power licensees to purchase primary insurance of $60 million. The government agreed to act as an excess insurer, providing licensees with $500 million of indemnity over the primary policy. Licensees were relieved of any additional liability regardless of fault or causation.
ANI claimed that it developed the Facility Form to meet the primary policy requirement of the Price Anderson Act. It argued that if the Facility Form is interpreted to provide coverage for the "conventional" environmental cleanup, its ability to provide coverage for third-party claims in the event of nuclear catastrophe would be severely and possible fatally jeopardized.
The court rejected that argument. It noted that the Price Anderson Act is not a "nanny" act, in that it does not prohibit insurers from undertaking to provide coverage to nuclear plant operators for "conventional" environmental harm should they choose to do so. It did not dictate the terms of the Facility Form.
The court held that coverage under the Facility Form is determined by its terms, and that pursuant to those terms coverage was initially triggered.
As I will discuss in my next post, however, there was no coverage because the loss came within an exclusion.
Whittaker and Textron were former owners and operators of property that was declared a superfund site because of nuclear waste. They sought coverage for associated costs from American Nuclear Insurers, or ANI. At issue was an endorsement called a Facility Form in which ANI promised to pay "all sums which the insured shall become legally obligated to pay as damages because of . . . property damage arsing from the nuclear energy hazard."
ANI argued that there was no coverage for the loss. It argued that the Facility Form must be viewed in the context in which it was drafted. It contended that the Facility Form is a "creature of statute," intended to carry out the legislative goals of the Price Anderson Act, which was conceived in response to "the risk of potentially vast liability in the event of a nuclear accident of sizable magnitude." The Act required nuclear power licensees to purchase primary insurance of $60 million. The government agreed to act as an excess insurer, providing licensees with $500 million of indemnity over the primary policy. Licensees were relieved of any additional liability regardless of fault or causation.
ANI claimed that it developed the Facility Form to meet the primary policy requirement of the Price Anderson Act. It argued that if the Facility Form is interpreted to provide coverage for the "conventional" environmental cleanup, its ability to provide coverage for third-party claims in the event of nuclear catastrophe would be severely and possible fatally jeopardized.
The court rejected that argument. It noted that the Price Anderson Act is not a "nanny" act, in that it does not prohibit insurers from undertaking to provide coverage to nuclear plant operators for "conventional" environmental harm should they choose to do so. It did not dictate the terms of the Facility Form.
The court held that coverage under the Facility Form is determined by its terms, and that pursuant to those terms coverage was initially triggered.
As I will discuss in my next post, however, there was no coverage because the loss came within an exclusion.
Season's Greetings
Thank you to our readers and to those who have taken time to post comments on the blog this year. We appreciate your input and support. We wish you all the best in 2010. Happy holidays from the Ontario Insurance Law Blog!
John and Tara
John and Tara
GCS that Fluctuates Above 9 May Still be Considered Catastrophic
Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Limited)(2009), 97 O.R. (3d) 95 (C.A.).
The Court of Appeal has released a decision that may make it more difficult to resist a declaration that a claimant is catastrophically impaired.
In Liu, the plaintiff was injured in a motor vehicle accident on April 9, 1999. His initial Glasgow Coma Score (“GCS”) was 3/15. His GCS steadily increased and by the time he arrived at hospital 26 minutes later, his GCS was 14. The definition of “catastrophic impairment” is brain impairment that results in a score of 9 or less on the GCS according to a test administered “within a reasonable period of time after the incident by a person trained for that purpose”. The trial judge concluded that the appellant did not suffer a catastrophic impairment, and as a result, he was not entitled to receive a damage award for future medical, rehabilitation or attendant care expenses, which the jury assessed at $858,000.00. The issue of catastrophic impairment was therefore very important to both sides.
The Court of Appeal held that as long as there is one GCS score of 9 or less within a reasonable time following the accident, the plaintiff’s impairment falls within the definition of catastrophic impairment. The fact that there may have been other, higher scores also within a reasonable time after the accident is irrelevant.
This decision has implications in both the accident benefits sphere and on tort damages. Although it simplifies the definition of catastrophic impairment to a certain extent, it permits claimants who have met the definition for a limited period of time to access increased damages. It remains to be seen whether this decision will be appealed to the Supreme Court of Canada.
The Court of Appeal has released a decision that may make it more difficult to resist a declaration that a claimant is catastrophically impaired.
In Liu, the plaintiff was injured in a motor vehicle accident on April 9, 1999. His initial Glasgow Coma Score (“GCS”) was 3/15. His GCS steadily increased and by the time he arrived at hospital 26 minutes later, his GCS was 14. The definition of “catastrophic impairment” is brain impairment that results in a score of 9 or less on the GCS according to a test administered “within a reasonable period of time after the incident by a person trained for that purpose”. The trial judge concluded that the appellant did not suffer a catastrophic impairment, and as a result, he was not entitled to receive a damage award for future medical, rehabilitation or attendant care expenses, which the jury assessed at $858,000.00. The issue of catastrophic impairment was therefore very important to both sides.
The Court of Appeal held that as long as there is one GCS score of 9 or less within a reasonable time following the accident, the plaintiff’s impairment falls within the definition of catastrophic impairment. The fact that there may have been other, higher scores also within a reasonable time after the accident is irrelevant.
This decision has implications in both the accident benefits sphere and on tort damages. Although it simplifies the definition of catastrophic impairment to a certain extent, it permits claimants who have met the definition for a limited period of time to access increased damages. It remains to be seen whether this decision will be appealed to the Supreme Court of Canada.
United States District Court holds that uncertainty over insurance policy terms does not create duty to defend
My next several posts will discuss Whittaker Corp. v. Am. Nuclear Insurers, __ F.2d __ (D. Mass. 2009), 2009 WL 4342512, in which historical owners of property sought insurance coverage for their costs associated with the property being declared a superfund site.
One of the issues was whether Endorsement 112, which would have excluded coverage, was properly added to the insurance policy. In a previous decision the court had held that pending the resolution of that factual question, the insurer, ANI, had a duty to defend. On a motion to reconsider, to his credit Judge Stearns reversed that ruling:
One of the issues was whether Endorsement 112, which would have excluded coverage, was properly added to the insurance policy. In a previous decision the court had held that pending the resolution of that factual question, the insurer, ANI, had a duty to defend. On a motion to reconsider, to his credit Judge Stearns reversed that ruling:
This ruling put the cart before the horse by conflating the duty to defend with the existence of coverage in the first place. Before a court can determine whether a policy imparts a duty to defend, an applicable policy must be identified.
New Insurance Book Shop Open For Business
My new book shop is open. Books, teleseminars, white-papers, workbooks, ebooks - to help you manage your business better.
www.InsuranceBookShop.com
www.InsuranceBookShop.com
Employment Practices Liability Insurance Exclusions
EPLI policies routinely exclude a number of employment-related actions from coverage including:
-Workers' compensation claims,
-ERISA actions,
-Employment wage disputes (Fair Labor Standards Act),
-Unemployment Insurance,
-Disability benefits law,
-National Labor Relations Act,
-Worker Adjustment and Retraining Notification Act,
-Occupational Safety and Health Act
-Workers' compensation claims,
-ERISA actions,
-Employment wage disputes (Fair Labor Standards Act),
-Unemployment Insurance,
-Disability benefits law,
-National Labor Relations Act,
-Worker Adjustment and Retraining Notification Act,
-Occupational Safety and Health Act
Insurance Success Tip #9 - Consider Pollution Insurance
Almost all liablity insurance policies exclude pollution claims. Consider buying separate policies.
Oil leaks from a heating oil storage tank? No coverage.
Stored chemicals contaminates a neighbor's well? No coverage.
Pollution is found at a vacant site you own? No coverage.
You buy land and find it is contaminated? No coverage.
Your property insurance provides extremely limited coverage for cleanup of pollution at your location when the cause of the loss is a peril covered by your building insurance. The coverage is probably less than $15,000.
Oil leaks from a heating oil storage tank? No coverage.
Stored chemicals contaminates a neighbor's well? No coverage.
Pollution is found at a vacant site you own? No coverage.
You buy land and find it is contaminated? No coverage.
Your property insurance provides extremely limited coverage for cleanup of pollution at your location when the cause of the loss is a peril covered by your building insurance. The coverage is probably less than $15,000.
Superior Court allows adjustment of premiums over insured's argument of mistake
In Nat'l Fire & Marine Ins. Co. v. AT Equipment, Inc., 2009 WL 3086233 (Mass. Super.), AT was insured by National. AT's insurance broker filled out and delivered to AT an insurance application when it was time to renew the policy. The broker had filled in gross sales figures from previous years despite a recent substantial increase in gross sales. AT's managers did not read the entire application, but signed it on behalf of AT.
National issued a new policy which gave National the right to audit AT's records and charge additional premiums if the audit determined that such payments were appropriate. An audit revealed that an additional $102,405 was due in premiums. It sued AT for those premiums and moved for summary judgment.
The Superior Court rejected AT's argument that the policy should be reformed (apparently by removing the clause allowing adjustment of premiums) or voided on the grounds of fraud or mistake. It rejected the fraud argument because no facts indicated actual or constructive knowledge of the falsity of the application on the part of National.
It held that the policy could not be reformed on the grounds of mutual mistake because the parties were not mistaken as to the same matters. AT was mistaken about the accuracy of the contents of its application, and National was mistaken about the appropriate premium.
The court held, finally, that the contract could not be reformed on the grounds of unilateral mistake because National had the right to conduct an audit and correct the premium. Therefore AT, the party seeking to void the contract, bore the risk of the mistake.
National issued a new policy which gave National the right to audit AT's records and charge additional premiums if the audit determined that such payments were appropriate. An audit revealed that an additional $102,405 was due in premiums. It sued AT for those premiums and moved for summary judgment.
The Superior Court rejected AT's argument that the policy should be reformed (apparently by removing the clause allowing adjustment of premiums) or voided on the grounds of fraud or mistake. It rejected the fraud argument because no facts indicated actual or constructive knowledge of the falsity of the application on the part of National.
It held that the policy could not be reformed on the grounds of mutual mistake because the parties were not mistaken as to the same matters. AT was mistaken about the accuracy of the contents of its application, and National was mistaken about the appropriate premium.
The court held, finally, that the contract could not be reformed on the grounds of unilateral mistake because National had the right to conduct an audit and correct the premium. Therefore AT, the party seeking to void the contract, bore the risk of the mistake.
Occupier's Liability Act - Definition of Recreational Trail
Schneider v. St. Clair Region Conservation Authority (2009), 97 O.R. (3d) 81 (C.A.)
Schneider was injured while skiing in a conservation area when she left a marked trail and her ski struck a wall hidden by snow. During the winter months, the area was used for activities such as skiing, tobogganing and hiking, but the defendant did not perform any maintenance of the area. Section 3 of the Occupier’s Liability Act imposes a duty on occupiers to take reasonable care to ensure that people are reasonably safe while on the premises. Where a person willingly assumes the risks of entering premises, section 4(1) of the Act substitutes a lesser duty on the occupier to not create a danger with deliberate intent to do harm and to not act with reckless disregard. Section 4(3) of the Act is a deeming provision that provides that a person who enters certain types of premises that are outlined in section 4(4) is deemed to have willingly assumed the associated risks. Those premises outlined in section 4(4) include such property as rural premises and recreational trails.
The trial judge held that the lesser duty of care did not apply because the premises did not come within one of the categories listed in section 4(4). He noted that although the premises contained recreational trails, the concrete wall was not on one of the trails.
The Court of Appeal allowed the appeal and dismissed the action. The court reviewed the purpose and history of the Occupier’s Liability Act. The purpose of section 4 was to encourage land owners to make their lands available to the public for recreational use. The Court of Appeal sensibly stated that it would make little sense to impose a lesser standard when users remained on the trail, but to impose a higher standard when they veered off of it. The trail was being used by Ms. Schneider for recreation and it met the definition of recreational trail, thus bringing it within the provisions of section 4.
Schneider was injured while skiing in a conservation area when she left a marked trail and her ski struck a wall hidden by snow. During the winter months, the area was used for activities such as skiing, tobogganing and hiking, but the defendant did not perform any maintenance of the area. Section 3 of the Occupier’s Liability Act imposes a duty on occupiers to take reasonable care to ensure that people are reasonably safe while on the premises. Where a person willingly assumes the risks of entering premises, section 4(1) of the Act substitutes a lesser duty on the occupier to not create a danger with deliberate intent to do harm and to not act with reckless disregard. Section 4(3) of the Act is a deeming provision that provides that a person who enters certain types of premises that are outlined in section 4(4) is deemed to have willingly assumed the associated risks. Those premises outlined in section 4(4) include such property as rural premises and recreational trails.
The trial judge held that the lesser duty of care did not apply because the premises did not come within one of the categories listed in section 4(4). He noted that although the premises contained recreational trails, the concrete wall was not on one of the trails.
The Court of Appeal allowed the appeal and dismissed the action. The court reviewed the purpose and history of the Occupier’s Liability Act. The purpose of section 4 was to encourage land owners to make their lands available to the public for recreational use. The Court of Appeal sensibly stated that it would make little sense to impose a lesser standard when users remained on the trail, but to impose a higher standard when they veered off of it. The trail was being used by Ms. Schneider for recreation and it met the definition of recreational trail, thus bringing it within the provisions of section 4.
And now for something completely different . . .
An early 1970's pop-culture look at insurance fraud, with Farrah Fawcett and Colonel Potter thrown into the mix:
The Sound of Money
The Sound of Money
First Circuit holds that D and O policy does not provide coverage where directors and officers are not defendants
In Medical Mut. Ins. Co. v. Indian Harbor Ins. Co., 583 F.3d 57 (1st Cir. 2009) the United States Court of Appeals held that under Maine law a Director and Officer ("D & O") liability policy did not provide coverage where only a company, and not its officers and directors, was the defendant--even though the allegations included wrongful conduct on the part of the officers and directors.
Judge Selya held:
Judge Selya held:
D & 0 polices exist to fund indemnification covenants that protect corporate directors and officers from personal liability, not to protect the corporation by which they are employed. The position advanced by the company in this case - extending coverage to situations in which the directors and officers are not themselves the actual targets of the claims made - would if accepted transmogrify D & 0 policies into comprehensive corporate general liability policies. Because such a tansmogrification is contrary to both the letter and the spirit of the D & O policy at issue here, we affirm the district court's entry of summary judgment in favor of the insurer.
Changes to the Rules of Civil Procedure - Part 6
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 6 of our review of the amendments.
A new rule has been introduced which imposes additional requirements on experts. Rule 4.1 requires experts to sign an acknowledgment agreeing that they have a duty to provide evidence that is:
a) fair, objective and non-partisan;
b) related only to matters within the expert’s expertise;
c) to provide the court with assistance it needs to determine a matter in issue.
Both plaintiffs and defendants have experts that they use and know have a particular slant. Whether this rule actually results in more balanced reports remains to be seen.
The acknowledgement of duty is contained in Form 53 and it must be attached to every expert report to be relied on at trial. A copy of form 53 can be found on the Ministry of the Attorney General website at:
http://www.ontariocourtforms.on.ca/english/civil/
In addition, expert must include additional information in their reports, such as the information relied on in preparing the report. This may open up an argument that the instructing letter should be disclosed. Counsel should therefore be cautious in what information is provided to the expert.
A new rule has been introduced which imposes additional requirements on experts. Rule 4.1 requires experts to sign an acknowledgment agreeing that they have a duty to provide evidence that is:
a) fair, objective and non-partisan;
b) related only to matters within the expert’s expertise;
c) to provide the court with assistance it needs to determine a matter in issue.
Both plaintiffs and defendants have experts that they use and know have a particular slant. Whether this rule actually results in more balanced reports remains to be seen.
The acknowledgement of duty is contained in Form 53 and it must be attached to every expert report to be relied on at trial. A copy of form 53 can be found on the Ministry of the Attorney General website at:
http://www.ontariocourtforms.on.ca/english/civil/
In addition, expert must include additional information in their reports, such as the information relied on in preparing the report. This may open up an argument that the instructing letter should be disclosed. Counsel should therefore be cautious in what information is provided to the expert.
Massachusetts Appellate Division overturns summary judgment to PIP insurer for failure to show decision-making process
In N.E. Physical Therapy Plus, Inc. v. Commerce Ins. Co., 2009 WL 3381750 (Mass. App. Div.), physical therapist NEPT sued Commerce pursuant to Mass. Gen. Laws ch. 90 § 34M (the PIP statute) and ch. 93A § 11 (the consumer protection statute) for failing to pay physical therapy bills on behalf of Commerce's insured, who was entitled to PIP benefits.
After suit was filed Commerce paid the disputed bill, which extinguished the ch. 90 § 34 M claim. Commerce then moved for summary judgement on the 93A claim. In support of its motion Commerce submitted only an affidavit of a Commerce employee.
The court denied Commerce's motion for summary judgment, holding:
After suit was filed Commerce paid the disputed bill, which extinguished the ch. 90 § 34 M claim. Commerce then moved for summary judgement on the 93A claim. In support of its motion Commerce submitted only an affidavit of a Commerce employee.
The court denied Commerce's motion for summary judgment, holding:
The Affidavit is composed almost entirely of the affiant's facile and conclusory characterizations of Commerce's claims records. Even if the Affidavit were admissible in its entirety, a question we do not reach here, Commerce's summary judgment materials provide no insight into Commerce's strategy for handling NEPT's claims; into the particulars of Commerce's decision-making process with respect to those claims; into the results of any expert review of the claims; or, in fact, into any of the subjective questions on which G.L. c. 93A claims generally rise and fall.
"Blind Side" Movie Review
I normally do not do movie reviews, but the The Blind Side is a movie that is so meaningful that I just must encourage you togo and see it.
Sandra Bullock is entirely convincing as a strong Southern woman of conviction. Tim McGraw has no trouble looking like a man married to a woman like her, since he has a lot of practice married to superstar Faith Hill.
I think that the character who plays Michael Oher was strong, but vulnerable in way I did not think a man his size could be.
This is a true story, based a Memphis family and Oher played at Briarcrest Christian School (something they changed in the movie). It is not just "a football movie." Non sports fans have loved it too.
There is some objectionable language, but it is not gratuitous. It is rather realistic. Parental guidance, if it is truly guidance, can make this a movie for younger than age 13 in some families.
Oher now plays very well for a very average Ravens NFL team.
But 1 Corinthians chapter 13, says that love never fails.
In fact, love overcomes racial, socioeconomic and cultural differences. .. If we just let it.
Client Comment
"Your work for us is as important as any insurance policy we buy."
Bill Swales
Bangor Savings Bank
Bill Swales
Bangor Savings Bank
Risk Management Advice
Each fall I teach a class on small biz management at a local community college. We just finished a unit on risk management. Here are some of the suggestions I made...
--Review your insurance with your insurance agent at least annually
--Backup your computer data up every night - off site.
--Hire employees slow. Fire them fast. - Good people a gold. Deadwood will kill
your company.
--Run background checks on every new hire, check references, credentials, and
talk with former employers.
--Build a company culture that values honesty and integrity.
--Build systems that prevent employee theft.
Judge Fremont-Smith of the Superior Court holds that damages both did and may not have arisen out of use of a vehicle
In Leone v. Schwartz, 2009 WL 3416398, the plaintiff, Leone, was a police officer who responded to an accident in which Schwartz's car had crashed through a fence and some small trees. Leone alleged that as he approached the car on foot, he lost his balance and fell in an area that was covered with debris from the fence, broken tree limbs, and snow and ice.
Leone sued Schwartz's homeowner's insurer, Great Northern, and automobile insurer, Arbella. Judge Fremont-Smith held on summary judgment that there was no coverage under the homeowner's policy because the policy excludes "damages arising out of the . . . use . . . of any motorized land vehicle." He wrote:
Judge Fremont-Smith then turned to the automobile policy, which provided coverage for "damage to people injured or killed in accidents if you or a household member is legally responsible for the accident." "Accident" is defined in the policy as "an unexpected, unintended event that caused bodily injury or property damages arising out of the ownership, maintenance or use of an auto."
Although two paragraphs earlier Judge Fremont Smith had held that as a matter of law the accident arose out of the use of the car, he now wrote:
Judge Fremont-Smith concluded that if Leone fell on pieces of broken fence or other debris caused by the accident there would be coverage under the policy, but that if he slipped only on snow and ice or other debris that was not caused by the accident there would be no coverage.
I'm all for splitting hairs in interpreting insurance policies. I make my living doing it. But I do not see how the same opinion can hold as a matter of law that the damages arose out of the use of a vehicle and also hold that whether the injury arose out of the ownership, maintenance or use of the auto is a question of fact. In my opinion the judge can't have it both ways.
Leone sued Schwartz's homeowner's insurer, Great Northern, and automobile insurer, Arbella. Judge Fremont-Smith held on summary judgment that there was no coverage under the homeowner's policy because the policy excludes "damages arising out of the . . . use . . . of any motorized land vehicle." He wrote:
The allegations are that Schwartz negligently drove his motor vehicle off a road and into a lawn, causing the plaintiff to investigate the accident scene and suffer a "slip and fall" injury. The only theory on which Schwartz could be held liable, then, is as a result of his allegedly negligent operation of a motor vehicle, for which the policy excludes coverage.
Judge Fremont-Smith then turned to the automobile policy, which provided coverage for "damage to people injured or killed in accidents if you or a household member is legally responsible for the accident." "Accident" is defined in the policy as "an unexpected, unintended event that caused bodily injury or property damages arising out of the ownership, maintenance or use of an auto."
Although two paragraphs earlier Judge Fremont Smith had held that as a matter of law the accident arose out of the use of the car, he now wrote:
The fact that Schwartz's operation of a motor vehicle provides the only possible basis for his liability, so that Great Northern's motion must be allowed, does not necessarily mean that Arbella's motor vehicle policy provides coverage. It is true that, but for Scwartz's vehicle having gone off the road and onto a lawn, Leone would not even have been there. But this does not necessarily mean that Leone's injury arose out of Schwartz's operation of a vehicle. The vehicle was stationary when Leone arrived at the scene, and he has admitted that the yard in which he fell was covered by debris, snow, and ice. Even if the undisputed facts were to indicate that Schwartz was negligent in his operation of his vehicle, it is a disputed question of fact whether Leone's injuries arose out of Schwartz's use of his motor vehicle.
Judge Fremont-Smith concluded that if Leone fell on pieces of broken fence or other debris caused by the accident there would be coverage under the policy, but that if he slipped only on snow and ice or other debris that was not caused by the accident there would be no coverage.
I'm all for splitting hairs in interpreting insurance policies. I make my living doing it. But I do not see how the same opinion can hold as a matter of law that the damages arose out of the use of a vehicle and also hold that whether the injury arose out of the ownership, maintenance or use of the auto is a question of fact. In my opinion the judge can't have it both ways.
Appellate Division holds that insurer does not need to show prejudice from violation of duty to cooperate
In Trinidad v. Pilgrim Insurance Company, 2009 WL 3844469 (Mass. App. Div.), the insured sought PIP coverage. He skipped two medical examinations scheduled by the insurer. The insurer denied coverage on the grounds that the insured failed to cooperate.
The insured argued that the insurer failed to prove that it had been prejudiced by his failure to cooperate. The Massachusetts Appellate Division held that a showing of prejudice is not required. It noted that both the PIP statue and the policy required the insured to submit to medical exams by physicians selected by the insurer. The court held:
The insured argued that the insurer failed to prove that it had been prejudiced by his failure to cooperate. The Massachusetts Appellate Division held that a showing of prejudice is not required. It noted that both the PIP statue and the policy required the insured to submit to medical exams by physicians selected by the insurer. The court held:
Neither the policy, nor the statute, requires an insurer to show prejudice before invoking the defense of noncooperation by the claimant as a condition precedent to denying a claim.
Changes to the Rules of Civil Procedure - Part 5
Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 5 of our review of the amendments.
Rule 20 governs summary judgment. The amendments to this rule are substantial and have the potential to make it a more valuable tool than it currently is. The changes to rule 20 will permit judges expansive powers; they will be able to weigh evidence, make inferences and evaluate credibility. Judges will also be able to hear oral evidence on a summary judgment motion to order to assist them in making decisions, rather than relying on affidavit evidence.
These changes have the potential to assist in disposing of claims at an early stage, rather than waiting until a full trial occurs, with its associated time and expense. What remains to be seen is whether judges are prepared to utilize the new rule to its full potential.
If a judges declines to grant summary judgment or grants summary judgment in part, judges have a wide variety of powers. One of the more interesting powers is the ability to order that each party's expert meet to discuss areas of agreement and disagreement. This power appears contradictory to the intent of the amendments, which focuses on reducing costs and increasing access to justice, as well as proportionality. Requiring experts to meet will increase costs to litigants and adds a level of administration because it requires coordination of the experts' schedules. Practically speaking, one would think that this would be an exceptional remedy due to the costs considerations and that where experts are diametrically opposed, there is no real use in having them try to persuade each other.
Another substantial change to summary judgment is that the costs consequences of a failed summary judgment motion have been relaxed. The current rule imposes substantial indemnity costs against the unsuccessful party; the new rule eliminates the presumption of substantial indemnity costs. The current rule has served as a deterrent to bringing summary judgment motions for fear of the costs consequences. The new rule may encourage its use as even if a party is not successful, the consequences are not as severe as in the past.
Rule 20 governs summary judgment. The amendments to this rule are substantial and have the potential to make it a more valuable tool than it currently is. The changes to rule 20 will permit judges expansive powers; they will be able to weigh evidence, make inferences and evaluate credibility. Judges will also be able to hear oral evidence on a summary judgment motion to order to assist them in making decisions, rather than relying on affidavit evidence.
These changes have the potential to assist in disposing of claims at an early stage, rather than waiting until a full trial occurs, with its associated time and expense. What remains to be seen is whether judges are prepared to utilize the new rule to its full potential.
If a judges declines to grant summary judgment or grants summary judgment in part, judges have a wide variety of powers. One of the more interesting powers is the ability to order that each party's expert meet to discuss areas of agreement and disagreement. This power appears contradictory to the intent of the amendments, which focuses on reducing costs and increasing access to justice, as well as proportionality. Requiring experts to meet will increase costs to litigants and adds a level of administration because it requires coordination of the experts' schedules. Practically speaking, one would think that this would be an exceptional remedy due to the costs considerations and that where experts are diametrically opposed, there is no real use in having them try to persuade each other.
Another substantial change to summary judgment is that the costs consequences of a failed summary judgment motion have been relaxed. The current rule imposes substantial indemnity costs against the unsuccessful party; the new rule eliminates the presumption of substantial indemnity costs. The current rule has served as a deterrent to bringing summary judgment motions for fear of the costs consequences. The new rule may encourage its use as even if a party is not successful, the consequences are not as severe as in the past.
Competition
To me competition is the best way to get the best price and best insurance coverage. Getting multiple agents and multiple insurers beating each other like a cheap drum always results in good things for the insurance buyer.
Having only one agent who works with multiple insurance companies may be better than just renewing your current insurance. However, true competition only exists when everyone involved in the bid process thinks they may lose.
The threat of loss is a huge motivator for insurers and insurance agents, as it should be.
Having only one agent who works with multiple insurance companies may be better than just renewing your current insurance. However, true competition only exists when everyone involved in the bid process thinks they may lose.
The threat of loss is a huge motivator for insurers and insurance agents, as it should be.
The Limit to the Question of Limits
Reader Question:
Hi Scott –
I have read your articles at Guidestar and on your site about D&O for nonprofits. What I can’t seem to find is what criteria to use to determine the limit. I’m part of a nonprofit COO group on LinkedIn and asked others in the group. The few answers I received indicated that limits were suggested by the Board in relation to how risk averse certain individual board members were.
I’d like something a bit more analytical and my board is looking to me to help them analyze and assess their risk. Going from a $2M to a $5M limit increases our premium pretty significantly, so I’d like to make sure that it is called for. Any guidance you can give?
My Reply:
This is the most common question I get.
There are no quantitative answers - past a minimum level. Anyone who gives you a formula is making stuff up.
I have reviewed your financials. To me, $5m is a minimum for you. Your assets and the overall operations tell me you are well past the $2m point.
Beyond $5m I recommend a value based approach. How much is the next million and is it worth it to you and the board? If the 6th m cost $500 you buy it. If it's $5,000 you probably don't buy it.
Sorry I have no magic formula. It just does not exist - beyond superfluousness.
More important than the 5 to 6 million decision is the quality of your coverage. Is the coverage what it should be? What exclusions exist? Can you get a better policy at a better price with another insurer?
Glad to help more if I can.
There are no quantitative answers - past a minimum level. Anyone who gives you a formula is making stuff up.
I have reviewed your financials. To me, $5m is a minimum for you. Your assets and the overall operations tell me you are well past the $2m point.
Beyond $5m I recommend a value based approach. How much is the next million and is it worth it to you and the board? If the 6th m cost $500 you buy it. If it's $5,000 you probably don't buy it.
Sorry I have no magic formula. It just does not exist - beyond superfluousness.
More important than the 5 to 6 million decision is the quality of your coverage. Is the coverage what it should be? What exclusions exist? Can you get a better policy at a better price with another insurer?
Glad to help more if I can.
Superior Court declines to interpret against insurer policy language that was not part of preprinted form
In Dulac v. Chicago Title Ins. Co., 2009 WL 3838999 (Mass. Super.), the owner of a two-family home sued his title insurer for declining coverage when a prospective buyer backed out of the sale because of a perceived defect in the title.
The policy included an exclusion with an exception that stated:
The insured attached to the complaint an opinion by a land court examiner which identified a likely defect in the title. At issue was whether that opinion came within the exception.
Judge Kaplan held that the exclusion was ambiguous. However, he declined to interpret it against the insurer and held that a question of fact existed as to what the parties understood the exclusion to mean at the time the policy issued. He wrote:
The policy included an exclusion with an exception that stated:
Exception for Notice of Land Court Petition recorded with the Worcester Registry of Deeds at Book 13029, Page 124. Note: This policy affirmatively insures against loss or damage as a result of the attempted assertion of paramount title due to any matter set forth in said petition.
The insured attached to the complaint an opinion by a land court examiner which identified a likely defect in the title. At issue was whether that opinion came within the exception.
Judge Kaplan held that the exclusion was ambiguous. However, he declined to interpret it against the insurer and held that a question of fact existed as to what the parties understood the exclusion to mean at the time the policy issued. He wrote:
Although an ambiguity is generally construed against an insurer, this exclusion is not part of a preprinted form and it is possible that Dulac [the insured] understood the exclusion in the manner that Chicago Title now explains it
Will you sign the "Manhattan Declaration?"
Manhattan Declaration: A Call of Christian Conscience
Drafted October 20, 2009
Released November 20, 2009
Preamble
Christians are heirs of a 2,000-year tradition of proclaiming God’s word, seeking justice in our
societies, resisting tyranny, and reaching out with compassion to the poor, oppressed and
suffering.
While fully acknowledging the imperfections and shortcomings of Christian institutions and
communities in all ages, we claim the heritage of those Christians who defended innocent life by
rescuing discarded babies from trash heaps in Roman cities and publicly denouncing the
Empire’s sanctioning of infanticide. We remember with reverence those believers who sacrificed
their lives by remaining in Roman cities to tend the sick and dying during the plagues, and who
died bravely in the coliseums rather than deny their Lord.
After the barbarian tribes overran Europe, Christian monasteries preserved not only the Bible but
also the literature and art of Western culture. It was Christians who combated the evil of slavery:
Papal edicts in the 16th and 17th centuries decried the practice of slavery and first
excommunicated anyone involved in the slave trade; evangelical Christians in England, led by
John Wesley and William Wilberforce, put an end to the slave trade in that country. Christians
under Wilberforce’s leadership also formed hundreds of societies for helping the poor, the
imprisoned, and child laborers chained to machines.
In Europe, Christians challenged the divine claims of kings and successfully fought to establish
the rule of law and balance of governmental powers, which made modern democracy possible.
And in America, Christian women stood at the vanguard of the suffrage movement. The great
civil rights crusades of the 1950s and 60s were led by Christians claiming the Scriptures and
asserting the glory of the image of God in every human being regardless of race, religion, age or
class.
This same devotion to human dignity has led Christians in the last decade to work to end the
dehumanizing scourge of human trafficking and sexual slavery, bring compassionate care to
AIDS sufferers in Africa, and assist in a myriad of other human rights causes – from providing
clean water in developing nations to providing homes for tens of thousands of children orphaned
by war, disease and gender discrimination.
Like those who have gone before us in the faith, Christians today are called to proclaim the
Gospel of costly grace, to protect the intrinsic dignity of the human person and to stand for the
common good. In being true to its own calling, the call to discipleship, the church through service
to others can make a profound contribution to the public good.
Declaration
We, as Orthodox, Catholic, and Evangelical Christians, have gathered, beginning in New York on
September 28, 2009, to make the following declaration, which we sign as individuals, not on
behalf of our organizations, but speaking to and from our communities. We act together in
obedience to the one true God, the triune God of holiness and love, who has laid total claim on
our lives and by that claim calls us with believers in all ages and all nations to seek and defend
the good of all who bear his image. We set forth this declaration in light of the truth that is
grounded in Holy Scripture, in natural human reason (which is itself, in our view, the gift of a
beneficent God), and in the very nature of the human person. We call upon all people of
goodwill, believers and non-believers alike, to consider carefully and reflect critically on the issues
we here address as we, with St. Paul, commend this appeal to everyone’s conscience in the sight
of God.
While the whole scope of Christian moral concern, including a special concern for the poor and
vulnerable, claims our attention, we are especially troubled that in our nation today the lives of the
unborn, the disabled, and the elderly are severely threatened; that the institution of marriage,
already buffeted by promiscuity, infidelity and divorce, is in jeopardy of being redefined to
accommodate fashionable ideologies; that freedom of religion and the rights of conscience are
gravely jeopardized by those who would use the instruments of coercion to compel persons of
faith to compromise their deepest convictions.
Because the sanctity of human life, the dignity of marriage as a union of husband and wife, and
the freedom of conscience and religion are foundational principles of justice and the common
good, we are compelled by our Christian faith to speak and act in their defense. In this
declaration we affirm: 1) the profound, inherent, and equal dignity of every human being as a
creature fashioned in the very image of God, possessing inherent rights of equal dignity and life;
2) marriage as a conjugal union of man and woman, ordained by God from the creation, and
historically understood by believers and non-believers alike, to be the most basic institution in
society and; 3) religious liberty, which is grounded in the character of God, the example of Christ,
and the inherent freedom and dignity of human beings created in the divine image.
We are Christians who have joined together across historic lines of ecclesial differences to affirm
our right—and, more importantly, to embrace our obligation—to speak and act in defense of
these truths. We pledge to each other, and to our fellow believers, that no power on earth, be it
cultural or political, will intimidate us into silence or acquiescence. It is our duty to proclaim the
Gospel of our Lord and Savior Jesus Christ in its fullness, both in season and out of season.
May God help us not to fail in that duty.
Life
So God created man in his own image, in the image of God he created him; male and female he
created them. Genesis 1:27
I have come that they may have life, and have it to the full. John 10:10
Although public sentiment has moved in a pro-life direction, we note with sadness that pro-
abortion ideology prevails today in our government. The present administration is led and staffed
by those who want to make abortions legal at any stage of fetal development, and who want to
provide abortions at taxpayer expense. Majorities in both houses of Congress hold pro-abortion
views. The Supreme Court, whose infamous 1973 decision in Roe v. Wade stripped the unborn
of legal protection, continues to treat elective abortion as a fundamental constitutional right,
though it has upheld as constitutionally permissible some limited restrictions on abortion. The
President says that he wants to reduce the “need” for abortion—a commendable goal. But he
has also pledged to make abortion more easily and widely available by eliminating laws
prohibiting government funding, requiring waiting periods for women seeking abortions, and
parental notification for abortions performed on minors. The elimination of these important and
effective pro-life laws cannot reasonably be expected to do other than significantly increase the
number of elective abortions by which the lives of countless children are snuffed out prior to birth.
Our commitment to the sanctity of life is not a matter of partisan loyalty, for we recognize that in
the thirty-six years since Roe v. Wade, elected officials and appointees of both major political
parties have been complicit in giving legal sanction to what Pope John Paul II described as “the
culture of death.” We call on all officials in our country, elected and appointed, to protect and
serve every member of our society, including the most marginalized, voiceless, and vulnerable
among us.
A culture of death inevitably cheapens life in all its stages and conditions by promoting the belief
that lives that are imperfect, immature or inconvenient are discardable. As predicted by many
prescient persons, the cheapening of life that began with abortion has now metastasized. For
example, human embryo-destructive research and its public funding are promoted in the name of
science and in the cause of developing treatments and cures for diseases and injuries. The
President and many in Congress favor the expansion of embryo-research to include the taxpayer
funding of so-called “therapeutic cloning.” This would result in the industrial mass production of
human embryos to be killed for the purpose of producing genetically customized stem cell lines
and tissues. At the other end of life, an increasingly powerful movement to promote assisted
suicide and “voluntary” euthanasia threatens the lives of vulnerable elderly and disabled persons.
Eugenic notions such as the doctrine of lebensunwertes Leben (“life unworthy of life”) were first
advanced in the 1920s by intellectuals in the elite salons of America and Europe. Long buried in
ignominy after the horrors of the mid-20th century, they have returned from the grave. The only
difference is that now the doctrines of the eugenicists are dressed up in the language of “liberty,”
“autonomy,” and “choice.”
We will be united and untiring in our efforts to roll back the license to kill that began with the
abandonment of the unborn to abortion. We will work, as we have always worked, to bring
assistance, comfort, and care to pregnant women in need and to those who have been victimized
by abortion, even as we stand resolutely against the corrupt and degrading notion that it can
somehow be in the best interests of women to submit to the deliberate killing of their unborn
children. Our message is, and ever shall be, that the just, humane, and truly Christian answer to
problem pregnancies is for all of us to love and care for mother and child alike.
A truly prophetic Christian witness will insistently call on those who have been entrusted with
temporal power to fulfill the first responsibility of government: to protect the weak and vulnerable
against violent attack, and to do so with no favoritism, partiality, or discrimination. The Bible
enjoins us to defend those who cannot defend themselves, to speak for those who cannot
themselves speak. And so we defend and speak for the unborn, the disabled, and the
dependent. What the Bible and the light of reason make clear, we must make clear. We must be
willing to defend, even at risk and cost to ourselves and our institutions, the lives of our brothers
and sisters at every stage of development and in every condition.
Our concern is not confined to our own nation. Around the globe, we are witnessing cases of
genocide and “ethnic cleansing,” the failure to assist those who are suffering as innocent victims
of war, the neglect and abuse of children, the exploitation of vulnerable laborers, the sexual
trafficking of girls and young women, the abandonment of the aged, racial oppression and
discrimination, the persecution of believers of all faiths, and the failure to take steps necessary to
halt the spread of preventable diseases like AIDS. We see these travesties as flowing from the
same loss of the sense of the dignity of the human person and the sanctity of human life that
drives the abortion industry and the movements for assisted suicide, euthanasia, and human
cloning for biomedical research. And so ours is, as it must be, a truly consistent ethic of love and
life for all humans in all circumstances.
Marriage
The man said, "This is now bone of my bones and flesh of my flesh; she shall be called woman,
for she was taken out of man." For this reason a man will leave his father and mother and be
united to his wife, and they will become one flesh. Genesis 2:23-24
This is a profound mystery—but I am talking about Christ and the church. However, each one of
you also must love his wife as he loves himself, and the wife must respect her husband.
Ephesians 5:32-33
In Scripture, the creation of man and woman, and their one-flesh union as husband and wife, is
the crowning achievement of God’s creation. In the transmission of life and the nurturing of
children, men and women joined as spouses are given the great honor of being partners with God
Himself. Marriage then, is the first institution of human society—indeed it is the institution on
which all other human institutions have their foundation. In the Christian tradition we refer to
marriage as “holy matrimony” to signal the fact that it is an institution ordained by God, and
blessed by Christ in his participation at a wedding in Cana of Galilee. In the Bible, God Himself
blesses and holds marriage in the highest esteem.
Vast human experience confirms that marriage is the original and most important institution for
sustaining the health, education, and welfare of all persons in a society. Where marriage is
honored, and where there is a flourishing marriage culture, everyone benefits—the spouses
themselves, their children, the communities and societies in which they live. Where the marriage
culture begins to erode, social pathologies of every sort quickly manifest themselves.
Unfortunately, we have witnessed over the course of the past several decades a serious erosion
of the marriage culture in our own country. Perhaps the most telling—and alarming—indicator is
the out-of-wedlock birth rate. Less than fifty years ago, it was under 5 percent. Today it is over
40 percent. Our society—and particularly its poorest and most vulnerable sectors, where the out-
of-wedlock birth rate is much higher even than the national average—is paying a huge price in
delinquency, drug abuse, crime, incarceration, hopelessness, and despair. Other indicators are
widespread non-marital sexual cohabitation and a devastatingly high rate of divorce.
We confess with sadness that Christians and our institutions have too often scandalously failed to
uphold the institution of marriage and to model for the world the true meaning of marriage.
Insofar as we have too easily embraced the culture of divorce and remained silent about social
practices that undermine the dignity of marriage we repent, and call upon all Christians to do the
same.
To strengthen families, we must stop glamorizing promiscuity and infidelity and restore among
our people a sense of the profound beauty, mystery, and holiness of faithful marital love. We
must reform ill-advised policies that contribute to the weakening of the institution of marriage,
including the discredited idea of unilateral divorce. We must work in the legal, cultural, and
religious domains to instill in young people a sound understanding of what marriage is, what it
requires, and why it is worth the commitment and sacrifices that faithful spouses make.
The impulse to redefine marriage in order to recognize same-sex and multiple partner
relationships is a symptom, rather than the cause, of the erosion of the marriage culture. It
reflects a loss of understanding of the meaning of marriage as embodied in our civil and religious
law and in the philosophical tradition that contributed to shaping the law. Yet it is critical that the
impulse be resisted, for yielding to it would mean abandoning the possibility of restoring a sound
understanding of marriage and, with it, the hope of rebuilding a healthy marriage culture. It would
lock into place the false and destructive belief that marriage is all about romance and other adult
satisfactions, and not, in any intrinsic way, about procreation and the unique character and value
of acts and relationships whose meaning is shaped by their aptness for the generation, promotion
and protection of life. In spousal communion and the rearing of children (who, as gifts of God, are
the fruit of their parents’ marital love), we discover the profound reasons for and benefits of the
marriage covenant.
We acknowledge that there are those who are disposed towards homosexual and polyamorous
conduct and relationships, just as there are those who are disposed towards other forms of
immoral conduct. We have compassion for those so disposed; we respect them as human
beings possessing profound, inherent, and equal dignity; and we pay tribute to the men and
women who strive, often with little assistance, to resist the temptation to yield to desires that they,
no less than we, regard as wayward. We stand with them, even when they falter. We, no less
than they, are sinners who have fallen short of God’s intention for our lives. We, no less than
they, are in constant need of God’s patience, love and forgiveness. We call on the entire
Christian community to resist sexual immorality, and at the same time refrain from disdainful
condemnation of those who yield to it. Our rejection of sin, though resolute, must never become
the rejection of sinners. For every sinner, regardless of the sin, is loved by God, who seeks not
our destruction but rather the conversion of our hearts. Jesus calls all who wander from the path
of virtue to “a more excellent way.” As his disciples we will reach out in love to assist all who hear
the call and wish to answer it.
We further acknowledge that there are sincere people who disagree with us, and with the
teaching of the Bible and Christian tradition, on questions of sexual morality and the nature of
marriage. Some who enter into same-sex and polyamorous relationships no doubt regard their
unions as truly marital. They fail to understand, however, that marriage is made possible by the
sexual complementarity of man and woman, and that the comprehensive, multi-level sharing of
life that marriage is includes bodily unity of the sort that unites husband and wife biologically as a
reproductive unit. This is because the body is no mere extrinsic instrument of the human person,
but truly part of the personal reality of the human being. Human beings are not merely centers of
consciousness or emotion, or minds, or spirits, inhabiting non-personal bodies. The human
person is a dynamic unity of body, mind, and spirit. Marriage is what one man and one woman
establish when, forsaking all others and pledging lifelong commitment, they found a sharing of life
at every level of being—the biological, the emotional, the dispositional, the rational, the spiritual—
on a commitment that is sealed, completed and actualized by loving sexual intercourse in which
the spouses become one flesh, not in some merely metaphorical sense, but by fulfilling together
the behavioral conditions of procreation. That is why in the Christian tradition, and historically in
Western law, consummated marriages are not dissoluble or annullable on the ground of infertility,
even though the nature of the marital relationship is shaped and structured by its intrinsic
orientation to the great good of procreation.
We understand that many of our fellow citizens, including some Christians, believe that the
historic definition of marriage as the union of one man and one woman is a denial of equality or
civil rights. They wonder what to say in reply to the argument that asserts that no harm would
be done to them or to anyone if the law of the community were to confer upon two men or two
women who are living together in a sexual partnership the status of being “married.” It would
not, after all, affect their own marriages, would it? On inspection, however, the argument that
laws governing one kind of marriage will not affect another cannot stand. Were it to prove
anything, it would prove far too much: the assumption that the legal status of one set of
marriage relationships affects no other would not only argue for same sex partnerships; it could
be asserted with equal validity for polyamorous partnerships, polygamous households, even
adult brothers, sisters, or brothers and sisters living in incestuous relationships. Should these,
as a matter of equality or civil rights, be recognized as lawful marriages, and would they have
no effects on other relationships? No. The truth is that marriage is not something abstract or
neutral that the law may legitimately define and re-define to please those who are powerful and
influential.
No one has a civil right to have a non-marital relationship treated as a marriage. Marriage is an
objective reality—a covenantal union of husband and wife—that it is the duty of the law to
recognize and support for the sake of justice and the common good. If it fails to do so, genuine
social harms follow. First, the religious liberty of those for whom this is a matter of conscience
is jeopardized. Second, the rights of parents are abused as family life and sex education
programs in schools are used to teach children that an enlightened understanding recognizes
as “marriages” sexual partnerships that many parents believe are intrinsically non-marital and
immoral. Third, the common good of civil society is damaged when the law itself, in its critical
pedagogical function, becomes a tool for eroding a sound understanding of marriage on which
the flourishing of the marriage culture in any society vitally depends. Sadly, we are today far
from having a thriving marriage culture. But if we are to begin the critically important process of
reforming our laws and mores to rebuild such a culture, the last thing we can afford to do is to
re-define marriage in such a way as to embody in our laws a false proclamation about what
marriage is.
And so it is out of love (not “animus”) and prudent concern for the common good (not “prejudice”),
that we pledge to labor ceaselessly to preserve the legal definition of marriage as the union of
one man and one woman and to rebuild the marriage culture. How could we, as Christians, do
otherwise? The Bible teaches us that marriage is a central part of God’s creation covenant.
Indeed, the union of husband and wife mirrors the bond between Christ and his church. And so
just as Christ was willing, out of love, to give Himself up for the church in a complete sacrifice, we
are willing, lovingly, to make whatever sacrifices are required of us for the sake of the inestimable
treasure that is marriage.
Religious Liberty
The Spirit of the Sovereign LORD is on me, because the LORD has anointed me to preach good
news to the poor. He has sent me to bind up the brokenhearted, to proclaim freedom for the
captives and release from darkness for the prisoners. Isaiah 61:1
Give to Caesar what is Caesar's, and to God what is God's. Matthew 22:21
The struggle for religious liberty across the centuries has been long and arduous, but it is not a
novel idea or recent development. The nature of religious liberty is grounded in the character of
God Himself, the God who is most fully known in the life and work of Jesus Christ. Determined to
follow Jesus faithfully in life and death, the early Christians appealed to the manner in which the
Incarnation had taken place: “Did God send Christ, as some suppose, as a tyrant brandishing
fear and terror? Not so, but in gentleness and meekness..., for compulsion is no attribute of God”
(Epistle to Diognetus 7.3-4). Thus the right to religious freedom has its foundation in the example
of Christ Himself and in the very dignity of the human person created in the image of God—a
dignity, as our founders proclaimed, inherent in every human, and knowable by all in the exercise
of right reason.
Christians confess that God alone is Lord of the conscience. Immunity from religious coercion is
the cornerstone of an unconstrained conscience. No one should be compelled to embrace any
religion against his will, nor should persons of faith be forbidden to worship God according to the
dictates of conscience or to express freely and publicly their deeply held religious convictions.
What is true for individuals applies to religious communities as well.
It is ironic that those who today assert a right to kill the unborn, aged and disabled and also a
right to engage in immoral sexual practices, and even a right to have relationships integrated
around these practices be recognized and blessed by law—such persons claiming these “rights”
are very often in the vanguard of those who would trample upon the freedom of others to express
their religious and moral commitments to the sanctity of life and to the dignity of marriage as the
conjugal union of husband and wife.
We see this, for example, in the effort to weaken or eliminate conscience clauses, and therefore
to compel pro-life institutions (including religiously affiliated hospitals and clinics), and pro-life
physicians, surgeons, nurses, and other health care professionals, to refer for abortions and, in
certain cases, even to perform or participate in abortions. We see it in the use of anti-
discrimination statutes to force religious institutions, businesses, and service providers of various
sorts to comply with activities they judge to be deeply immoral or go out of business. After the
judicial imposition of “same-sex marriage” in Massachusetts, for example, Catholic Charities
chose with great reluctance to end its century-long work of helping to place orphaned children in
good homes rather than comply with a legal mandate that it place children in same-sex
households in violation of Catholic moral teaching. In New Jersey, after the establishment of a
quasi-marital “civil unions” scheme, a Methodist institution was stripped of its tax exempt status
when it declined, as a matter of religious conscience, to permit a facility it owned and operated to
be used for ceremonies blessing homosexual unions. In Canada and some European nations,
Christian clergy have been prosecuted for preaching Biblical norms against the practice of
homosexuality. New hate-crime laws in America raise the specter of the same practice here.
In recent decades a growing body of case law has paralleled the decline in respect for religious
values in the media, the academy and political leadership, resulting in restrictions on the free
exercise of religion. We view this as an ominous development, not only because of its threat to
the individual liberty guaranteed to every person, regardless of his or her faith, but because the
trend also threatens the common welfare and the culture of freedom on which our system of
republican government is founded. Restrictions on the freedom of conscience or the ability to
hire people of one’s own faith or conscientious moral convictions for religious institutions, for
example, undermines the viability of the intermediate structures of society, the essential buffer
against the overweening authority of the state, resulting in the soft despotism Tocqueville so
prophetically warned of.1 Disintegration of civil society is a prelude to tyranny.
As Christians, we take seriously the Biblical admonition to respect and obey those in authority.
We believe in law and in the rule of law. We recognize the duty to comply with laws whether we
happen to like them or not, unless the laws are gravely unjust or require those subject to them to
do something unjust or otherwise immoral. The biblical purpose of law is to preserve order and
serve justice and the common good; yet laws that are unjust—and especially laws that purport to
compel citizens to do what is unjust—undermine the common good, rather than serve it.
Going back to the earliest days of the church, Christians have refused to compromise their
proclamation of the gospel. In Acts 4, Peter and John were ordered to stop preaching. Their
answer was, “Judge for yourselves whether it is right in God's sight to obey you rather than God.
For we cannot help speaking about what we have seen and heard.” Through the centuries,
Christianity has taught that civil disobedience is not only permitted, but sometimes required.
There is no more eloquent defense of the rights and duties of religious conscience than the one
offered by Martin Luther King, Jr., in his Letter from a Birmingham Jail. Writing from an explicitly
Christian perspective, and citing Christian writers such as Augustine and Aquinas, King taught
that just laws elevate and ennoble human beings because they are rooted in the moral law whose
ultimate source is God Himself. Unjust laws degrade human beings. Inasmuch as they can claim
no authority beyond sheer human will, they lack any power to bind in conscience. King’s
willingness to go to jail, rather than comply with legal injustice, was exemplary and inspiring.
Because we honor justice and the common good, we will not comply with any edict that purports
to compel our institutions to participate in abortions, embryo-destructive research, assisted
suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force
us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from
proclaiming the truth, as we know it, about morality and immorality and marriage and the family.
We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances
will we render to Caesar what is God’s.
Drafting Committee
Robert George Professor, McCormick Professor of Jurisprudence,
Princeton University
Timothy George Professor, Beeson Divinity School, Samford
University
Chuck Colson Founder, the Chuck Colson Center for Christian Worldview
(Lansdowne, VA)
1
Alexis de Tocqueville, Democracy in America
http://manhattandeclaration.org/sign-the-declaration
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