resources spent for this purpose will of course have to be reimbursed through the premium. Also, if the insurer is uncertain whether he has the full information, he may ask for a higher premium for safety reasons. The duty of disclosure is therefore a tool to obtain a more correct premium, and — contrary to what the assured may believe - this premium may also be lower than if there was no such duty.
Section 20 provides that the contract of marine insurance will be voidable for misrepresentation. Although the doctrine of misrepresentation applies to contract law in general, the provisions of section 20 will prevail in the context of marine insurance. The fundamental considerations underlying the rules of misrepresentation in marine insurance,
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Traditionally, the remedy for misrepresentation has always been rescission, granted by the courts of equity in line with normal equitable principles, this remedy is discretionary only (although it is almost always granted in insurance law). The common law gave no remedy for innocent misrepresentation, although it always recognized fraud. The remedy for non-disclosure is common laws remedy of avoidance of the contract ab initio. And it is not discretionary, but the injured party's right. If misrepresentation and non¬disclosure are now, to all intents and purposes, the same creature and an equitable creature, this automatic right to avoid the contract must become question- able. Will the judiciary be able to deny avoidance, even if materiality and inducement are proved, and insist instead that the innocent party settles for damages?
2.6 The test of materiality
The concept of materiality is necessary in order to delimit the obligation to disclose. It has been suggested that such a limitation is not a "logically necessary requirement" to the duty of non- misrepresentation. Materiality is required in the Marine Insurance act, 1906 (UK) both in the context of disclosure and misrepresentation.
Section 18(2) suggests that the test of materiality is objective. Section 18(2)
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18 is capable of working such great hardship on the assured... (T)he fairness of the English rule is not at once obvious and hardly seems to reflect the duty of utmost good faith under s. 17 which, be it noted, is owed both ways. Why, if the insurer would have accepted the risk in any event, albeit at an increased premium, should he be able to avoid the claim altogether? Since the English law is so favourable to the underwriter in this respect, the least that should normally be expected of the underwriter is to show that a prudent insurer would have charged an increased
A defendant is liable for fraud themselves if they had a "reason to expect" transmission when they made a misrepresentation to one person intending that it be repeated and acted upon by the buyer as the seller has. In Geernaert v. Mitchell, Gerald and his wife Pamela brought an action for damages against two defendants who had formerly owned their home. The property has had three separate owners before Gerald and his wife. The plaintiffs alleged fraudulent misrepresentation and concealment regarding significant structural and foundation problems with the property. Defendant, Robert J. Mitchell owned the property from May 1978 until October 1982, that's when he sold the property to defendant
DiMarcurio assumed all of the provisions of the policy when it was assigned to them by Rosalie & Matteo Corporation. 2. One example would be if an insurance company sold a policy to someone who did not have the ability to understand what they were signing. An insurance company should not sell a policy to someone who
The case United States v. Lawson, 2009 WL 1916063 (Ky. 2009) deals extensively with FRE Rule 404(b). In the case four different items of evidence are viewed for admissibility under Rule 404. The case focuses on three co-defendants who are charged with five counts of bribery conspiracy and three counts of conspiracy on construction or repair of state roads and highways. The motion viewed focuses on Nighbert, a co-defendant, and his objections to admitting certain evidence against him under Rule 404(b). The four items are: an FBI report of an alleged conversation Nighbert had with the mayor regarding his son, failed disclosure on financial forms of his ownership of a company, an FBI interview concerning Kentucky road contracts and Nighbert, and a newspaper article regarding the defendant’s property and nearby construction.
Argument Summary judgment is appropriate when the moving party can show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cecil v. Cardinal Drilling Co., 244 Mont. 405, 409, 797 P.2d 232, 234 (1990); Mont. R. Civ. P. 56(c). A material fact involves the elements of the cause of action or defenses at issue to an extent that necessitates resolution of the issue by a trier of fact. Arnold v. Yellowstone Mountain Club, LLC, 2004 MT 284, ¶ 15, 323 Mont. 295, 100 P.3d 137.
Case Summary Part 1 The prosecution is legally bound to disclose to the defense evidence that is favorable to the defendant. Three examples of the prosecutor’s obligations to disclose evidence are Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Agurs, 427 U.S. 97 (1976). According to Rule 3.8, “the prosecutor must make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by
Guilt can either be determined by factual guilt or legal
Even though the circumstantial evidence implicated Brad, the forensic evidence presented was sufficient to implicate Knox. The testimony made by Mrs. Knox was admissible as the spousal privilege was broken. However, the defense representing Knox could argue based on the Fourth Circuit to dismiss the testimony against him. The Fourth Circuit holds that Mrs. Knox’s statement should be inadmissible and as such, violates the confrontation clause. The use of this testimony to implicate Knox violates the aspect of spousal privileges.
At trial, a key witness for the prosecution was a co-conspirator who had been promised immunity from prosecution in exchange for his testimony. The prosecution failed to disclose to the defense that the witness had been promised immunity. The Supreme Court held that the prosecution's failure to disclose the promise of immunity violated Giglio's right to due process. The Court held that prosecutors are obligated to disclose any evidence favorable to the accused and are material to guilt or punishment, including evidence that could be used to impeach the credibility of a government witness.
Conseco Grp. Risk Mgmt. Co. v. Ahrens Fin. Sys., 2001 U.S. Dist. LEXIS 2306, at *1. Ultimately, the Court held that in matters involving public concern, whether private or public figure, a plaintiff was required to show actual malice in order to recover presumed or punitive damages.
Defendants are in great pressure to lie to their counsel regarding guilt or innocence. If the defendant decides to admit his or her guilt, it makes it difficult to help the defendant. Or if the defendant lies about involvement it is difficult to negotiate plea bargains or the plea agreement given. This scenario poses an ethical dilemma for the attorney, which is to permit a client to lie in court and plea guilty when they indicted their innocence. With the plea bargain the defendant is able to freely tell the truth with the knowledge that plea bargain will exist whether he denies guilt or not.
In other words, the people are assured the right of not being forced to be a witness against themselves. (Bohm & Haley, 2011, pp.
Deals Co. v. Mainland Motors Corp., 40 Mich. Application. 270, 198 N.W.2d 757 (1972) (defendant corporation which allegedly did not honor agreement had burden of raising statute of frauds
John Giglio was charged with passing forged money orders and sentenced to five years imprisonment. During the appeal, Giglio counsel discovered new evidence representing that the prosecutors had failed to reveal a promise made to its “key witness” that he wouldn’t be prosecuted if he testified for the government. The Court granted a certiorari to determine whether the evidence not revealed would require a retrial under the due process standards Napue v. Illinoi, 360 U.S. 264 (1959), and Brady v. Maryland, 373 U.S. 83 (1963). Evidence showed at trial, representatives at Manufacturers Hanover Trust Co. learned that Robert Taliento, key witness and co-conspirator, was a banker teller and also had cashed several forged money orders. He confessed to providing Giglio with a customer’s bank signature card used by John Giglio to forge $2,300 in money orders.
Before Markham reveals his estimate of the underfunding risk the previous values showed he should first seek the advice of his firm, to explain his situation of how his estimated pension values were significantly higher than the actuaries reported value, and then voice any concerns he had that was related to the liability risk associated with his estimated higher values of the pension fund which is a misleading to the pension board members. Markham gave his oath to the Code of Ethics and Standards of Profession Conduct and should adhere to the rules and regulations and not provide false information or mislead his clients under any circumstances (Code of Ethics and Standards of Professional Conduct,
In matters of confidentiality, Banking is risky due to the highly sensitive nature of information which is often exchanged, recorded and retained. The purpose of this article is to discuss the clash of confidentiality and disclosure in the banking sector across the globe. The Black’s Law Dictionary defines confidentiality as secrecy or the state of having the dissemination of certain information restricted. Breach of confidentiality, then, refers, to the violation of this trust that has been placed in another in a fiduciary relationship, in this case bank and their customers.