Articles

GOVERNANCE BY WEB UPDATES: THE COMMONWEALTH OF PENNSYLVANIA’S REGULATION BY WEBSITE GUIDANCE IN RESPONSE TO COVID-19 AND OTHER TRANSPARENCY CONCERNS
Kevin M. Levy, Esq.

The world is a much different place than it was just a few months ago due to the omnipresence of the novel coronavirus known as COVID-19. Businesses have opened, closed, reopened, and reclosed. In the Commonwealth of Pennsylvania, residents and businesses have urgently looked to government officials for guidance and hope. And while Commonwealth officials have
performed steadfastly in combatting the scourge of COVID-19, their practice of governing by multiple overlapping government orders, guidance, other sorts of regulatory actions, and even quasi- or non-binding recommendations has been confusing, delayed, contradictory, or otherwise insufficient at times. This Commentary discusses the lightning speed at which policy has been developed in Pennsylvania to combat COVID-19, the lack of recourse to which Pennsylvania constituents have been entitled during the ongoing pandemic, and the issues raised by continuous, constant, and silent implied changes to Pennsylvania COVID-19 compliance requirements.

UNSETTLING THE LAW OF INSURANCE SETTLEMENTS: SECTIONS 24 AND 27 OF THE RESTATEMENT OF THE LAW LIABILITY INSURANCE
Kim V. Marrkand, Martha J. Koster, and Joel S. Nolette

The American Law Institute’s Restatement of the Law Liability Insurance, specifically Sections 24 and 27, problematically departs from established legal principles governing insurers’ duty to settle claims. While the duty to settle traditionally evolved from the implied covenant of good faith and fair dealing in insurance contracts, requiring proof of bad faith involving moral fault or ill will, Section 24 abandons this requirement in favor of a simple negligence standard that contradicts the majority of courts. This approach essentially creates strict liability for insurers since there is always risk of an adverse verdict when settlement is declined, while also controversially imposing duties to initiate settlement discussions against majority precedent and allowing insureds to settle without insurer consent under certain conditions. Section 27 compounds these problems by permitting recovery of punitive damages from insurers, a position rejected by most courts that recognize punitive damages should punish the actual wrongdoer rather than be shifted to insurers for unrelated conduct. These innovations represent significant departures from well-settled law and should be approached with caution by courts, as they reflect policy preferences rather than accurate restatements of existing legal principles, potentially forcing insurers to settle cases unnecessarily or at inflated values while passing costs to policyholders through increased premiums.