CPCU 530

Question	Answer
Civil Law Systems	1) Foundation of law systems in continental Europe, Latin American, Scotland and Louisiana 2) French code of napoleon 3) Comprehensive code of written law 4) Relies on scholarly interpretation of their codes and constitutions rather than court decisions
Common-Law System	1) Body of Law derived from court decisions (stare decisis) 2) There must be strong reasons to depart from precedents 3) Threshold cases; no precedent exists. Judge attempts to arrive at fair decision by considering all applicable laws. This will set a precedent.
Criminal Law	Criminal law defines offenses, regulates investigating, charging (how can you try an accused), trying accused offenders; establishes punishments for convicted offenders. Addresses felonies, misdemeanors, and summary offenses.
Civil Law	Civil law protects rights and provides remedies for breaches of duties owed to others (
Subject matter laws	Laws can be classified by subject matter, i.e. criminal law, contract, torts, agency, and property law
Laws can be substantive or procedural	Substantive law creates, defines and regulates parties rights, duties and powers. Procedural law prescribes steps, or processes, for enforcing the rights and duties prescribed by substantive law.
Substantive law	Substantive law creates, defines and regulates parties rights, duties and powers. **what is a crime? What are the elements to be convicted of this crime?
Procedural law	Prescribes steps, or processes, for enforcing the rights and duties prescribed by substantive law.
Constitutions	- In the U.S., constitutions lay the foundation for both state and federal governments. - Each state has its own constitution, subservient only to the U.S. Constitution Outlines governments powers and limitations - Can be broader than federal law or U.S. Constitution but cannot violate U.S. Constitution. - U.S. Constitution provides for the separation of powers. Three branches - executive, legislative, judicial;
Constitutions, continued. Several provisions related to the insurance industry	- The Constitution establishes expressed and implied powers of Congress powers and delegates some powers to states that are not specifically reserved for federal government. - Commerce Clause gives Congress the power to regulate commerce (trade) with foreign nations and among states. - Fifth Amendment’s Due Process clause guarantees notice of public hearing before the federal government can deprive any person of life, liberty or property. - Fourteenth amendment’s Equal Protection clause also addresses individual rights by prohibiting state laws that discriminate unfairly or arbitrarily and requires equal treatment to all persons under like circumstances and conditions.
Commerce Clause	gives Congress the power to regulate commerce (trade) with foreign nations and among states.
Fifth Amendment’s Due Process clause	guarantees notice of public hearing before the federal government can deprive any person of life, liberty or property. Insurance is heavily regulated. If we want to change rates, we have to file a notice of hearing. This is due to the 5th amendment.
Fourteenth amendment’s Equal Protection clause	also addresses individual rights by prohibiting state laws that discriminate unfairly or arbitrarily and requires equal treatment to all persons under like circumstances and conditions.
Legislative Bodies	- Constitutions delegate the power to create law - U.S. Congress is bi-cameral (2 houses), as are most states and assemblies (senators and state representatives) - Many states have adopted uniform laws such as the Uniform Commercial Code (UCC) - Uniformity among states in the insurance industry continues. NAIC (national association of insurance commissioners) provides information to state regulators to help coordinate responses to changing conditions in the insurance marketplace.
Courts	Jurisdiction Federal court system State court systems
Courts Jurisdiction	- Power of the court (ie small claims court) to decide cases of a certain type or within a specific territory. Some jurisdiction is based on subject matter - Courts where cases are initiated have original jurisdiction - Courts who can hear appeals have appellate jurisdiction - Courts who can hear a variety of cases have general jurisdiction
Federal Court System	- Cases involving U.S. Constitution, federal laws, and when the U.S. is a plaintiff or defendant. - U.S. District courts are the trial courts of federal system - U.S. Circuit Court of Appeals has appellate jurisdiction
original jurisdiction	Courts where cases are initiated have original jurisdiction
appellate jurisdiction	Courts who can hear appeals have appellate jurisdiction
U.S. District courts	U.S. District courts are the trial courts of federal system
Federal court system	With proper filing, writ of certiorari, a party can ask the U.S. Supreme Court to hear their case. U.S. Supreme Court is the final avenue to appeal in our legal system.
State court systems	- Similar setup as the federal court system. - Court names are not consistent. The highest appellate court in most states is call the supreme court. - Typically there is an intermediate level appellate court --Trial courts are courts of general jurisdiction
Executive Branches	- President, Governors, Mayors, etc. - Ability to recommend legislation and to veto legislation - Appoint heads of administrative agencies
Administrative Agencies.	- Generally has authority to make rules and prescribe behavior - Agency rules, regulations and rulings have the full force of law and constitute to body of administrative law. - Legislative delegation of rulemaking power to administrative agency is constitutional if it meets: a. Legislation defines the scope of delegated power. b. Agency exercises its rulemaking power within its defined scope. c. Rules are subject to judicial review
Pretrial procedures	- Lawsuit (complaint) is filed by the plaintiff in the court with proper jurisdiction. - Court issues a summons notifying the defendant of the allegations and when an answer to the complaint is due. - Defendant will answer the complaint or may file an entry of appearance. Pleadings are the written legal documents outlining the facts and claims of each party to the complaint. - Motions are made by either party asking the court to take an action. - Discovery – exchange of all relevant information between the plaintiff and defendant. Depositions, interrogatories and subpoena are tools used in discovery. - Pre-trial conferences used to update the court, consider settlement, shorten the trial by stipulating to certain evidence.
Step 1 in Pretrial Procedures	Lawsuit (complaint) is filed by the plaintiff in the court with proper jurisdiction.
Step 2 in Pretrial Procedures	Court issues a summons notifying the defendant of the allegations and when an answer to the complaint is due
Step 3 in Pretrial Procedures	Defendant will answer the complaint or may file an entry of appearance
Step 4 in Pretrial Procedures	Pleadings are the written legal documents outlining the facts and claims of each party to the complaint
Step 5 in Pretrial Procedures	Motions are made by either party asking the court to take an action.
Step 6 in Pretrial Procedures	Discovery – exchange of all relevant information between the plaintiff and defendant. Depositions, interrogatories and subpoena are tools used in discovery.
Step 7 in Pretrial Procedures	Pre-trial conferences used to update the court, consider settlement, shorten the trial by stipulating to certain evidence.
Trial procedures	Trials allow for the judge or jury to observe witnesses, hear subjective arguments, and evaluate facts. - Juries decide questions of fact while the judge decides questions of law. - Jurors are selected by the parties. Challenges are used to remove a potential juror from the jury pool. - Trial process: Opening statements; Evidence is submitted; Closing arguments; Case is given to the jury to reach a conclusion. - Evidence must be relevant, material and competence. - General verdict is a complete finding and a single conclusion; Special verdict is a answer to questions presented by the judge. The judge will apply the law to the facts determined by the jury.
Trial process	Trial process: Opening statements; Evidence is submitted; Closing arguments; Case is given to the jury to reach a conclusion.
General verdict	General verdict is a complete finding and a single conclusion
Special verdict	Special verdict is a answer to questions presented by the judge. The judge will apply the law to the facts determined by the jury.
Jury Challenges	Challenges are used to remove a potential juror from the jury pool.
Doctrines evolved in common law to prevent re-litigation:	Res judicata – prevents raising facts or claims in a subsequent claim that could have been included in the original lawsuit Collateral Estoppel prevents re-litigating an issue on which a court has already ruled.
Res judicata	prevents raising facts or claims in a subsequent claim that could have been included in the original lawsuit Example: Contractor did work in kitchen, living room, bathroom etc, water damage afterwards. The original lawsuit only filed for damages for the kitchen rather than the other locations. Unable to re-litigate saying all of the locations were impacted if the original just listed one location.
Collateral Estoppel	Collateral Estoppel prevents re-litigating an issue on which a court has already ruled.
Appeals	- Request to a higher court to review a case. - Trial transcript is used along with the briefs of the appellant and appellee. - Court can affirm the lower court’s ruling, reverse the lower court’s ruling, or send the case back to the lower court for new trial.
Trial procedures	Trial procedures, continued All lower courts can appeal to a higher court. Cannot re-litigate cases that have already been decided
alternative dispute resolutions	Arbitration Mediation Negotiations
Arbitration	- Case is presented to a third party for a final and binding decision - Many states have laws covering arbitration. The Uniform Arbitration Act and Federal Arbitration Act provide remedies if one party refuses to arbitrate. - American Arbitration Association developed a process for selecting the arbitrator. - Arbitrators decision is filed with the court and is as enforceable as any court judgement. - FINAL AND BINDING!
Mediation	- Impartial intermediary is used to assist in making a decision. - Nonbinding
Negotiations	Involved parties discuss all issues to reach a mutually satisfactory resolution.
aspects of administrative agency procedures	Rulemaking function Adjudicatory function Investigative powers Judicial review
The Uniform Arbitration Act and Federal Arbitration Act	The Uniform Arbitration Act and Federal Arbitration Act provide remedies if one party refuses to arbitrate
American Arbitration Association	American Arbitration Association developed a process for selecting the arbitrator.
Rulemaking function	Agencies promulgate three types of rules: - Legislative rules (substantive rules) has same force as one enacted by Congress or legislature. - Interpretive rules provide guidance for agency staff and regulated parties. Lack force and extent of law, not binding on individuals. - Procedural rules, primarily internal.
Administrative Procedure Act (APA)	Administrative Procedure Act (APA) federal level. Proposed regulation is published in the Federal Register.
Model State Administrative Procedure Act (MSAPA)	Most states follow Model State Administrative Procedure Act (MSAPA). - Requires agencies to follow three steps: Provide notice of intent to adopt a regulation; invite comments by a certain date. - Provide opportunity for public comment. -Publish the final regulation. Typically effective 30 days after publishing
Adjudicatory function	- Similar to court cases. No juries; rules governing witnesses and evidence are relaxed. - The Due Process Clause grants parties affected by an agency decision to be heard. Requires: Appropriate notice; Legal authority and jurisdiction; Particular statute or rule involved; and the matters at issue. - Agencies can impose fines or grants; revoke, or suspend licenses. - Appeals are available prior to a judicial review. - Provide advisory opinions. Good indication how the agency will decide a case based on a set of facts.
The Due Process Clause	The Due Process Clause grants parties affected by an agency decision to be heard. Requires: Appropriate notice; Legal authority and jurisdiction; Particular statute or rule involved; and the matters at issue.
Investigative powers	Investigative powers - Can issue subpoenas - Limitations on investigative powers: * Fourth Amendment – protection against unreasonable searches and seizures. * Fifth Amendment – protection against self-incrimination The Privacy Act and Freedom of Information Act protect the public from agency misuse of collected information.
The Privacy Act and Freedom of Information Act	The Privacy Act and Freedom of Information Act protect the public from agency misuse of collected information.
Fourth Amendment	Fourth Amendment – protection against unreasonable searches and seizures.
Fifth Amendment	Fifth Amendment – protection against self-incrimination
Judicial review	- A party must have standing to sue in order to bring administrative action to court for judicial review. - Only occurs after the agency has issued a final order; and the doctrine of exhaustion of administrative remedies has been exhausted.
Court can set aside on the following grounds:	- Action was arbitrary and capricious; abuse of discretion; or unlawful - Action was unconstitutional - Action violated statutory authority - Action violated agency procedural rules. - Action is not supported by substantial evidence in the record.

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