The new Restatement of the Law, Liability Insurance: a primer

Reprinted with permission from the Daily Journal. ©2019 Daily Journal Corporation. All rights reserved. This article includes citations to Proposed Final Draft language of the Restatement that has been updated. The Official Text of the Restatement of the Law, Liability Insurance is available to purchase now.

Restatements of the Law have been a feature of the legal landscape for nearly 100 years. Issued by the American Law Institute, they influence and shape the law. The Institute’s members include U.S. Supreme Court justices, judges of the highest courts of most states, law school deans, professors, and private practitioners. Putting it simply, when the institute speaks, courts and others tend to listen.

Now, for the first time, the institute has spoken on the subject of liability insurance. It has published the Restatement of the Law, Liability Insurance. This Restatement has proven to be controversial, both in its drafting process and since its final approval. Yet, it was not adopted lightly. It was the subject of seven institute annual meetings and a lengthy back-and-forth process involving more than 160 lawyers representing insurers, insureds, others. This process produced 29 drafts presented formally in institute meetings. Therefore, this Restatement may have a significant impact on the law  – exactly what it is intended to do.

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