Here’s a taste:

TWO burning questions are at the center of America’s health care debate. First, should employers be required to pay for their employees’ health insurance? And second, should there be a “public option” that competes with private insurance?

Answers might be found in San Francisco, where ambitious health care legislation went into effect early last year. San Francisco and Massachusetts now offer the only near-universal health care programs in the United States . . . .

[W]e have seen how concern over employer costs can be a sticking point in the health care debate, even in the absence of persuasive evidence that increased costs would seriously harm businesses. San Francisco’s example should put some of those fears to rest. Many businesses there had to raise their health spending substantially to meet the new requirements, but so far the plan has not hurt jobs . . . .

So how have employers adjusted to the higher costs, if not by cutting jobs? More than 25 percent of restaurants, for example, have instituted a “surcharge” — about 4 percent of the bill for most establishments — to pay for the additional costs. Local service businesses can add this surcharge (or raise prices) without risking their competitive position, since their competitors will be required to take similar measures. Furthermore, some of the costs may be passed on to employees in the form of smaller pay raises, which could help ward off the possibility of job losses. Over the longer term, if more widespread coverage allows people to choose jobs based on their skills and not out of fear of losing health insurance from one specific employer, increased productivity will help pay for some of the costs of the mandate.

In case you think this is all a bunch of liberal, Democratic mishigosh, one of the authors of this op-ed happens to be non-other than William Dow, a senior economist who worked for President George W. Bush’s Council of Economic Advisers.

In other words, increasing evidence is out there that health care reform with a public option and an employer pay or play mandate might be just what our system needs to rein in health care costs while at the same time providing health insurance to a much larger segment of American society.

[Cross-posted on Workplace Prof Blog]

The first of my favorites is considered in my Torts class.  It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982).  It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property.  It is referenced to show how, at times, state legislatures see fit to modify common law rules.  The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another. 

The plaintiff broke her leg when she stepped into a hole on a golf course fairway.  She alleged that the hole was not easily visible.  In holding that the statute was not applicable to the plaintiff’s case, the court construed the legislative intent for the statute to apply to “the type of activity that one associates being done on land in its natural undeveloped state as contrasted to the more structured, landscaped and improved nature of a golf course.” 106 Wis.2d at 693, 317 N.W.2d  at 472.  This case also allows noting to the students that the Wisconsin Legislature subsequently amended the statute (now § 895.52) and in so doing stated that the new “legislation should be liberally construed in favor of property owners to protect them from liability” and that it “is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.” 1983 Act 418, § 1.  It helps for the students to be aware that, at times, member of the legislature do read court decisions interpreting legislation and can act to overturn interpretations they do not like.  I close the discussion of the case by noting that I am unaware if Quesenberry was one of the cases the legislature was unhappy with.  I also note that when I first read the opinion I sent a letter to its author, Justice Day.  Therein I said that either he was a scratch golfer or never played the game because the vast majority of golfers spend most of their time on the “natural undeveloped” portions of golf courses.

The second “favorite” is Gross v. Lloyds of London Ins. Co., 121 Wis.2d 78, 358 N.W.2d 266 (1984), which is considered in my Insurance course.  In August 1982, at The Experimental Aircraft Association’s annual fly-in at Oshkosh, an unoccupied aircraft owned by the insured rolled into the tent occupied by a young woman. She was severely injured by its operating propeller. The plane owner’s insurer investigated and determined that the woman’s damages greatly exceed the policy limits of $100,000 and that their insured’s liability was clear.  It unsuccessfully attempted to settle the case for that amount with the woman’s attorney. It then attempted to tender the policy limits into court so as to be relieved from any further duty to defend its insured.  The Supreme Court held that because the insured had not received notice of the change in the duty to defend provisions of the policy, the insurer’s tender of policy limits into court did not relieve it of the duty to defend.  It further held that “for an insurer to be relieved of its duty to defend upon tender of the policy limits, the ‘tendered for settlements’ language must be highlighted in the policy and binder by means of conspicuous print, such as bold, italicized, or colored type.” 121 Wis.2d at 89, 358 N.W.2d at 271.  Then Justice, now Chief Justice, Abrahamson concurred in remanding the case to the trial court, but she argued that it should be remanded for an evidentiary hearing as to whether the insured knew before the fact that the insurer could terminate its defense effort.  She noted that an appellate court cannot make a finding of fact.  She also said she “cannot join the majority in its adoption of a ‘readability’ and ‘notice’ rule for binders and insurance policies. These are matters for the legislature and the commissioner of insurance.” 121 Wis.2d at 91, 358 N.W.2d at 272.  I also advise my students that the case caused me to write a letter to Justice Abrahamson in which I stated that for the first time I could remember I agreed with one of her opinions in a case dealing with a subject I teach.  The letter came back a few days letter with a penned note at its foot: “My God, I must have done something wrong!  S.”

The most newsworthy civil matter seems to be Biskupic v. Cicero, 2007AP2314. Through this appeal Vince Biskupic seeks to have his libel and slander claims against various defendants reinstated. Biskupic, as you may know, is a former Outagamie County D.A. who ran for state attorney general in 2002. Biskupic v. Cicero, 2008 WI App 117, ¶ 1. The defendants include a Shawano newspaper, the Shawano Leader, which published a false report stating that Biskupic had been convicted of bribery and graft. Id. ¶1

The Defendants moved for summary judgment against Biskupic’s claims. The circuit court “concluded Biskupic was a limited purpose public figure, and the actual malice standard applied. The court held the summary judgment submissions showed ‘the defamation occurred as a result of confusion and negligence, not malice.’”  The circuit court also rejected Biskupic’s argument that he should be granted judgment against the newspaper defendants, or a jury instruction, based on a reporter’s destruction of interview notes. Id. ¶10-11. The Court of Appeals affirmed, and the Supreme Court has accepted Biskupic’s petition for review.

The next civil case, Hocking v. City of Dodgeville, 2007AP1754, is a certification from the Court of Appeals, asking, “Can an uphill landowner who has done nothing to affect surface water flow be held liable to the owner’s downhill neighbor for damages sustained as a result of the water flow?” The Hockings bought a house in 1978, and later, in 1991, the City of Dodgeville developed a subdivision around that home. The Hockings contend that the development changed the surface water flow and damaged their property. They sued the city and some individual homeowners, but the claim was dismissed on summary judgment because the property owners did nothing to their properties to alter the flow to the Hockings’ detriment, so that under the “reasonable use” doctrine, there was no liability. In its certification, the Court of Appeals explains,

The Hockings argue that the neighbors are liable for negligently failing to abate a nuisance, relying on a recent supreme court case, Milwaukee Metropolitan. This case involves damages caused by water in sewers and pipelines, not surface water. In Milwaukee Metropolitan, the sewerage district brought a claim for maintaining a nuisance against the City of Milwaukee for damage to a sewer allegedly caused by a collapse of the city’s water main. Id., ¶3. The supreme court cited with favor RESTATEMENT (SECOND) OF TORTS § 839, which imposes liability on a party who negligently fails to abate a nuisance condition. See id. The Hockings argue that the neighbors have not appropriately managed the surface water flow from their property and are thus subject to liability for negligently failing to abate this nuisance under Milwaukee Metropolitan.

Finally, Donaubauer v. The Farmers Auto Ins. Assoc., 2007AP1992. This case gives the court the opportunity to clarify whether the appraisal process of resolving an insurance dispute is equivalent to the arbitration process. The plaintiff’s home was burned down in a fire caused by a passing Union Pacific train. His insurer paid him $530,000 for the loss, but the plaintiff claimed that more money was due under his “Home Guard replacement endorsement.” After the lawsuit had been filed, the insurer asked the plaintiff to participate in an appraisal process to settle the claim, and the plaintiff initially agreed, but then wished to back out of the process. He also wanted to conduct futher discovery about the appraisal. The circuit court granted summary judgment against his claims, holding that the appraisal could not be set aside. The court of appeals affirms. The Wisconsin Supreme Court news release explains that in the petition,

Donaubauer has asked the Supreme Court to review if the standards for challenging appraisals and arbitrations precisely mirror one another and to provide guidance on the method to challenge an appraisal. He also asks if it was appropriate for him to be forced to participate in a binding appraisal process, even though nothing in his insurance policy mandated a binding process. He also wants the Supreme Court to review if he should have been allowed to conduct discovery on the undertakings of the appraisal process.

Farmers contends that Donaubauer agreed in writing to the appraisal process and that his attorney acknowledged doing so in court. Farmers also contends the Court of Appeals correctly decided that under the facts, requiring actual replacement under the policy was not unfair but commercially reasonable.

A decision by the Supreme Court could clarify law in this area.

As a national debate over the future of the nation’s health-care system swirls, a new report from a liberal think tank indicates fewer working-age Americans, including Ohioans, are being covered under employer-sponsored health plans.

A briefing paper from the Washington, D.C.-based Economic Policy Institute, titled The Erosion of Employer-Sponsored Health Insurance, shows employer coverage for workers and their families dropped for the seventh consecutive year. About 63 percent of Americans, or 164.5 million, under age 65 were covered in 2007, about 3 million workers fewer than in 2000, during which about 68 percent were covered.

Employer-sponsored insurance coverage for working-age Ohioans fell at a similar rate over the decade. Last year, 6.8 million Ohioans, or nearly 69 percent, were covered by their employers, down more than 400,000 from 7.2 million, or 74 percent, six years earlier.

To the extent that employers are seeking to cut labor costs by pulling out of voluntarily adopted health benefit plans, there could be a domino effect which neither presidential candidate has grappled with: the demise of the employer-provided health insurance system in this country.

There will be two potential approaches that could result: an amendment of ERISA to require employers to provide manadatory health plans or a switch to a government-based system (one way would be to expand Medicare and Medicaid-type coverages to the entire nation). After having studied what a number of countries have done in preparation for my forthcoming, co-authored case book on Global Issues in Employee Benefits Law, I am of the opinion that a hybrid system would be best. Such a system would provide a base-level coverage for all Americans through the government and then additional coverage and services could be provided through mandatory employer-provided coverage.

Cross posted at Workplace Prof Blog.

I suspect that will be true if a Republican is elected president. If a Democrat is elected, I also suspect there will be little change in tort law brought about by Congressional action, especially when one considers the financial support the organized plaintiffs’ bar is providing to the dems, particularly to their presidential candidate.

However, if the November election results in the continuation of Democrat control of Congress and puts a Democrat in the White House, there could be a significant impact on insurance law. That impact could well be a switch from state to federal regulation of insurance.

The McCarran-Ferguson Act (15 U.S. 1011) was passed by Congress on March 9, 1945, after the Supreme Court ruled (United States v. South-Eastern Underwriters, 322 U. S. 533 (1944)) that insurance could be regulated by the federal government via the Commerce Clause as interstate commerce. The McCarran-Ferguson Act provides that the Sherman Act, the Clayton Act, and the Federal Trade Commission Act apply to the business of insurance after June 30, 1948 “to the extent that such business is not regulated by state law” (emphasis added).

Needless to say, but I will anyway, state insurance regulators and the insurance industry, both comfortable with state regulation of insurance up to then, jumped into action. They worked together and quickly prepared a number of state regulatory laws (the “All-Industry Laws”) that foreclosed, at least up to now, federal intervention into the insurance business.

In recent years, efforts by Democrats in Congress to repeal McCarran-Ferguson have proved unsuccessful. Fewer insurers write coverage only in a single state than was the case in 1945. Many multi-state insurers might prefer one-stop regulating coming from Washington than from fifty separate states. They might see this as giving them a competitive advantage over smaller insurers writing in only a few states.

There are those who think that meaningful thought is impossible west of the Potomac River. Of course, regulation can be the predicate to increased taxation. Nevertheless, fifty-state regulation of the business of insurance works. It does not appear to be broken and should not be fixed by the folks who brought us such fine-tuned operations as the Post Office, Fanny Mae and Freddy Mac!