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May 21, 2018

“ALI Restatement Should Not Reflect Aspirational Proposals”

A Crowell & Moring LLP partner said in a Law360 op-ed that the American Law Institute (ALI) should reject its proposed Restatement of the Law on Liability Insurance because “it continues to reflect aspirational proposals in addition to, or in place of, settled insurance law.”

Laura Foggan said the restatement “contains many provisions that conflict with the common law or statutory law, or that establish new rules where no law exists.” She pointed specifically to language in the restatement that imposes new liability on insurance companies for mistakes made by defense counsel. Foggan said the question over whether attorneys “must have malpractice insurance is a matter of public policy, best addressed by legislatures, not the ALI.”

The ALI will vote on the current restatement this week at its annual meeting.

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