Investigating and Disciplining Off-Duty Sexual Conduct: Is There a Right to Privacy?
Karen Kruger, September 2008
Thomas Nixon, an officer with the Houston, Texas, Police Department (HPD), wrote in an opinion column about Houston police activities, without authorization from the HPD. When a citizen complained about his articles, the HPD found that he had made "caustic, offensive, and disrespectful" statements toward citizen groups. The HPD terminated Nixon's employment, finding that his conduct "undermined the efficiency of services provided by the HPD." Nixon sued the HPD, claiming that it had violated his First Amendment rights.
Insurable Interest: An Ancient Doctrine Confronts Modern Problems
Bryan Bolton and Michael Cunningham, September 2008
This article appeared in the September 2008 issue of For the Defense. The article analyzes the application of the insurable interest doctrine in the context of modern viatical settlements and related financial transactions, including those commonly referred to as stranger-owned life insurance or speculator-initiated life insurance.
an Employment Disciplinary Action Violate the Fourteenth Amendment's Protection of the Liberty Interest?
Karen Kruger, March 2008
In 1985 the Supreme Court decided a case that set standards for government agencies terminating an employee. The case examined the Fourteenth Amendment due-process rights of public employees and recognized that they may be either "property" or "liberty" rights. In 2007, the Supreme Court denied review of a decision made by the U.S. Court of Appeals for the Fourth Circuit that examined the "liberty" rights of a probationary police officer.
Worth a Thousand Words — or Maybe Several Hundred Thousand Dollars: Video Evidence in Police Misconduct Cases
Karen Kruger, November 2007
Pregnancy & Policing: Are They Compatible? Pushing the legal limits on behalf of equal employment opportunities
Karen Kruger, Spring 2007
Although law enforcement is a male-dominated profession, women's contributions as police officers are being increasingly recognized. These contributions may be lost, however, if law enforcement agencies fail to recognize that officers become pregnant. Officers should not be forced to choose between their profession and parenthood. This happens when agencies fail to accommodate pregnancy. Unfortunately, current law does not compel law enforcement agencies to accommodate pregnancy.
State Regulatory Oversight of the Role and Responsibilities of an Insurance Company's Corporate Directors
Donna Imhoff, Spring 2007
Whenever state regulators conduct a financial examination of an insurance company, they assess corporate governance against established insurance regulatory standards. In the Spring 2007 issue of the Journal of Insurance Regulation, Funk & Bolton's Donna Imhoff published an article that discusses those standards as they relate to corporate directors, and describes new standards the National Association of Insurance Commissioners (NAIC) recently adopted for all insurers.
The article is an educational tool for corporate directors. It discusses current regulatory standards, the role of directors in risk management, and new guidelines that regulators use in assessing director activities, as published in the 2007 edition of the NAIC's Financial Condition Examiners Handbook.
To obtain a copy of Corporate Governance: A Self-Evaluation Tool for Insurance Company Directors, contact Ren Tundermann.
Life and Health Insurance Update
Hisham Amin, May 2007
Funk & Bolton member Hisham M. Amin prepared this Update for the recent 2007 Life, Health, Disability and ERISA Claims Seminar. The paper highlights important decisions and emerging trends in recent life and health insurance litigation cases. As Mr. Amin concludes, success in litigating an insurance case requires careful compliance with applicable law and hard work to gather information from a variety of sources. In the final analysis, although litigating a life or health insurance case is never easy, the diligent practitioner often is the successful practitioner. Keeping abreast of the law is the first measure of necessary diligence.
Duty to All–Duty to No One: Examining the Public-Duty Doctrine and Its Exceptions
Karen Kruger, May 2007
Transfer and Reassignment: An Important but Sometimes Risky Management Prerogative
Karen Kruger, February 2007
Important Terms for
Inclusion in Confidential Settlement Agreements for Financial Services Companies
Bryan Bolton, 2006
In a fast-paced financial world, it is easy to understand how parties agree on a settlement figure, assume the final
documents resolving the matter are worth only perfunctory consideration, and press on to the next matter. This article
questions the wisdom of approaching a rapidly changing financial services world armed with nothing more than a traditional
Declaratory Judgment Expenses: The Issue that Just Won't Go Away
Thomas Klemm, September 2006
This article in the quarterly newsletter of Arias (the AIDA Reinsurance and Insurance Arbitration Society) addresses the
issue of declaratory judgment actions, wherein an insured files an action to determine whether its insurer must defend it
against a liability. It remains a topic of hot debate under thousands of reinsurance contracts written before such actions
were as common and costly as they have become.
Governmental Immunity in Maryland: a Practitioner's Guide to Making
and Defending Tort Claims
Karen Kruger, Fall 2006
Tort suits that involve the government require the advocates to consider the impact of sovereign immunity on the litigation.
For governmental defendants, sovereign immunity is an important defense, as it can deprive a court of jurisdiction
and completely deter a lawsuit. Those suing the government must have a command of the waivers of sovereign immunity and of the
procedural requirements that often accompany those waivers.
Maryland Court of Appeals issues opinion on required exclusions from auto liability policies in
Harleysville Mutual Insurance Co. v. Walter Zelinski et al
Maryland Court of Appeals issues annexation opinion in Mayor and Town Council of Oakland v. Mayor
and Town Council of Mountain Lake Park
Policy: Law and Philosophy
Karen Kruger, March 2006
Not only have women proven to be as capable as men in law enforcement duties, but studies have also shown that women excel at defusing violent situations and demonstrating empathy and are less likely to be accused of using excessive force. It is critical that law enforcement agencies recruit and retain women as police officers. One important tool in achieving these goals is a favorable policy relating to pregnancy.
The Nose Knows: The Odor of Marijuana and Probable Cause
Karen Kruger, October 2005
Practical Considerations in Defending Mental Illness Disability Claims
Bryan Bolton and Hisham M. Amin, 2005
Building a mental disability case can be a treacherous task. Neither the science nor the law is well settled, leaving many aspects ripe for litigation. Adding to the complexity are the jurisdictional differences that have emerged. Handling a mental disability claim, therefore, requires familiarity with relevant legal trends, a working knowledge of leading mental disability texts, and the willingness to carefully review mental health records.
Chief’s Counsel: The Police Officer as Expert Witness
Karen Kruger, June 2005
During criminal and civil litigation, police officers on the witness stand are sometimes asked to offer their opinions. According to two state court rulings, some officers who offer opinion testimony are expert witnesses and should be presented as such.
The Role and Impact of Police Practices Experts on Litigation
Karen Kruger, June 2004
This article examines the role of expert testimony in police misconduct litigation. Experts are afforded "extraordinary credence," and so it is essential for law enforcement managers and their attorneys to be cognizant of the legal and strategic issues that relate to relying on or defending against police practices experts.
Hot Topics in Disability
Bad Faith Litigation: An Overview and Some Recent Trends
Bryan Bolton and Alan Nochumson, 2004
The tort of bad faith refusal to settle a first-party insurance claim was first recognized in 1973 by the California Supreme Court.
This paper covers a number of current topics related to bad faith litigation.
Supreme Court Decision Further Illuminates the Two Rights to Counsel
Karen Kruger, April 2004
Each of the Fifth and Sixth Amendments guarantees a right to counsel in certain situations. But the two rights apply in different
circumstances and involve different rules. This creates a sometimes confusing body of law that officers must nonetheless understand.
Special Considerations in the
Investigation and Defense of Clinical Depression and Mental Illness Disability Claims
Bryan Bolton, 2003
This paper discusses various aspects and challenges involved in the process of adjudicating and defending against mental
illness disability claims.
A Tough Pill to Swallow: The Impact of State Independent Review Laws
on Appropriate Health Care Claims Handling
Bryan Bolton, 2003
The particulars of independent review differ from state to state, but the statutes all require the use of an independent reviewer
when requested by an insured, the treating physician, or some other individual acting on behalf of the patient. The intent of this
paper is to assist health care plans by identifying and summarizing key elements of the current independent review statutes.
Is Any Care Appropriate Care? The Scope and Application of
Appropriate Care Provisions in Individual Disability Income Insurance Policies
Bryan Bolton, 2003
Although relatively few cases have squarely addressed the "appropriate care" language found in many of today's disability income
insurance policies, the courts that have addressed this provision recognize that "appropriate care" is a higher standard than regular
care. At the same time, the courts appear to be struggling with enunciating a clear standard for what is "appropriate care."
Health and Welfare Benefit Compliance in
Bryan Bolton, 2002
Covers ERISA compliance issues, HIPAA plans and compliance issues, and medical plans
Dealing with Domestic Violence in Law Enforcement Relationships
Karen Kruger, July 2002
Domestic violence remains a prevalent problem in the US, and the public demands that law enforcement agencies work to prevent it.
Sadly, studies show that too many law enforcement officers themselves commit acts of domestic abuse, which is not only
devastating to their families but also damaging to the agencies and communities that they serve. This unlawful behavior undermines
the credibility and effectiveness of the officer and diminishes the standards of the department and the profession. From the FBI Law Enforcement Bulletin.
Collecting Statistics in Response to Racial Profiling Allegations
Karen Kruger, May 2002
As this article for the FBI Law Enforcement Bulletin observes, the simple collection of data will neither prevent so-called
"racial profiling" nor accurately document a law enforcement agency's
activities as a means of protecting it from public criticism, scrutiny, and litigation. Law enforcement agencies, therefore, must take
additional steps to ensure that the numbers they collect accurately reflect reality and support the positive enforcement and crime
prevention efforts that they conduct.
Is Any Care Appropriate Care?
Bryan Bolton, 2001
The Scope And Application of Appropriate Care Provisions in Individual Disability Income Insurance Policies
Disability Hot Spots
Bryan Bolton, 2000
This paper provides the reader with a comprehensive overview of three areas of disability claims. First, the paper examines the
law evolving in the area of risk of relapse disability claims. Second, the paper reviews the case law surrounding legal versus
factual disability claims. Third, the paper discusses the emerging case law on the question: What is "Your Occupation"?
Rights and Obligations
Arising from Remediation and Rehabilitation Clauses
Bryan Bolton, 2000
This paper provides the reader with an overview of how courts have interpreted and applied disability policies to remediation
or rehabilitation of the insured. The reader should note, however, that many of the issues discussed in the cases span across many
topics covered in this paper and the topical assignments given to these cases is somewhat arbitrary.
ERISA Fiduciary Litigation
Bryan Bolton, 1998
Although the Supreme Court has rarely rendered decisions expanding participant and beneficiary claims under ERISA, the Court
did just that in Varity Corp. v. Howe (1996). In Varity, the Court expanded both the scope of fiduciary duty and the
claims available for a breach of that duty. In light of that expansion, and the onslaught of fiduciary litigation following
Varity, this paper focuses on certain topics of interest for ERISA plan administrators and other ERISA fiduciaries.