CPCU 410 Flashcards – Module 5

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[h] CPCU 410 – Module 5

[q] Comparative negligence

[a] A principle that requires the two parties to share the financial burden of a loss based on their respective degrees of fault.

[q] Rules for applying comparative negligence

[a] Rules:

Pure comparative negligence rule – plaintiff can recover a percentage of their damages.

50% rule – plaintiff can only recover a percentage of their damages if their liability is 50% or less.

49% rule – plaintiff can only recover a percentage of their damages if their liability is 49% or less.

Slight vs. gross rule – plaintiff can recover only if their fault is slight in comparison.

[q] Release

[a] A contract that will release parties from further obligation after the contract is fulfilled.

[q] Exculpatory clause

[a] A contract clause in which one party agrees not to sue if injured.

[q] Gross negligence

[a] The failure to exercise even the slightest amount of care.

[q] Immunity

[a] A defense that shields certain parties from negligence claims.

[q] Sovereign immunity

[a] Governmental immunity; a defense that protects the government against tort lawsuits.

[q] Public official immunity

[a] A type of immunity that applies to local government officials.

[q] Charitable immunity

[a] A defense that shields charitable organizations from liability.

[q] Statute of limitations

[a] A statute that places a limit on the time period a plaintiff has to file suit.

[q] Statute of repose

[a] A statute that requires a plaintiff to file a lawsuit within a certain period of time after the defendant commits a wrongful act.

[q] Tortfeasor’s capacity

[a] A defense to a tort claim that may be available if the tort requires intent.  Lack of capacity can potentially be used as a defense.

[q] Battery

[a] A type of intentional tort that involves hostile or offensive bodily contact.  Can be considered both a crime and a tort.

[q] Defenses to battery

[a] Defenses:

The plaintiff consented to the act.

An act of self defense or defense of others.

An act of discipline.

[q] Assault

[a] A type of intentional tort that does not involve physical contact.  The other person must expect contact and fear harm.

[q] False imprisonment

[a] The confinement of a person without consent or authority.  Unlawful non-physical restraint.

[q] False arrest

[a] The restraint of a person without authority.  Unlawful physical restraint.

[q] Intentional infliction of emotional distress

[a] A type of intentional tort involving mental anguish resulting in physical symptoms.

[q] Defamation

[a] A false statement that harms someone’s reputation.  Can involve slander or libel.

[q] Slander

[a] The act of making a false spoken statement damaging to a person’s reputation.

[q] Libel

[a] The act of making a false written statement damaging to a person’s reputation.

[q] Defenses to defamation

[a] Defenses:

The statement was true.

The defendant retracted the statement.

The statement had privilege.

[q] Invasion of privacy

[a] Several common law torts that are based on an individual’s right to be left alone.

[q] Torts involving use or disclosure of information

[a] Torts:

Public disclosure of private facts.

Publicity placing the plaintiff in a false light.

Unauthorized release of confidential information.

Appropriation of the plaintiff’s name or likeness.

[q] Defenses to invasion of privacy

[a] Defenses:

Plaintiff previously published the information.

Plaintiff consented to the publication.

Plaintiff is a public figure.

Information was part of a news event.

Publication would not offend an ordinary person.

Information is of public interest.

[q] Elements required to prove fraud

[a] Elements required:

A false representation was made.

The representation was material.

The misrepresentation was knowingly made.

There was intent to deceive.

The plaintiff relied on the misrepresentation.

The plaintiff suffered actual damage.

[q] Bad faith

[a] A breach of the duty of good faith.

[q] Defenses to bad faith

[a] Defenses:

Lack of intent or recklessness.

No outrageous conduct occurred.

No contractual duty owed to plaintiff.

[q] Injurious falsehood

[a] Torts involving disparagement that causes harm to a legally protected intangible property right.

[q] Wrongful-life action

[a] A lawsuit on behalf of a child born with birth defects.

[q] Malicious prosecution

[a] The improper institution of legal proceedings against another

[q] Malicious abuse of process

[a] The use of civil or criminal procedures for a purpose for which they were not designed.

[q] Probable cause

[a] The grounds that would lead a reasonable person to believe the defendant committed an act.

[q] Nuisance

[a] Interfering with the use or enjoyment of property.

[q] Private nuisance

[a] The unlawful interference with another’s enjoyment of their real property.

[q] Public nuisance

[a] An act that affects the public at large, interfering with public enjoyment regarding property.

[q] Intentional nuisance

[a] Purposeful interference with a person’s enjoyment of their property.

[q] Nuisance per se

[a] An ongoing nuisance, under all conditions and in all circumstances.

[q] Conversion

[a] The unlawful exercise of control over personal property owned by another.  The interference must be major and not temporary.

[q] Products liability

[a] A liability for harm suffered by a buyer, user, or bystander as a result of a product that has a defect or inherent danger.

[q] Basis of most products liability suits

[a] Most product liability is based on:


Breach of warranty.

Strict liability.

[q] Defect in manufacture or assembly

[a] A major type of product defect in which the product does not match the original design.  Can lead to a lawsuit.

[q] Defect in design

[a] A major type of product defect in which the product matches the design but the design itself is flawed, resulting in injury.  Can lead to a lawsuit.

[q] Failure to warn

[a] A major type of product defect in which the product is dangerous and the manufacturer did not provide warning.  Can lead to a lawsuit.

[q] Defenses available in products liability suits

[a] Defenses available:

State of the art defense.

Open and obvious danger.

Plaintiff’s knowledge.

Assumption of risk.

Misuse of product.

Alteration of product.

[q] Federal Trade Commission Act

[a] A law that prohibits unfair practices and has been applied to data practices.

[q] Family Educational Rights and Privacy Act

[a] A law that protects students’ education records.

[q] Health Insurance Portability and Accountability Act

[a] A law that regulates how medical information can be stored and shared.

[q] Children’s Online Protection Act

[a] A law that imposes data collection and privacy requirements on websites targeted to children under 13.

[q] Gramm-Leach-Bliley Act

[a] A law that regulates collection, use, and disclosure of data by financial institutions.

[q] Homeland Security Act

[a] A law that addresses privacy issues related to homeland security.

[q] Federal Information Security Management Act

[a] A law that provides a mandatory framework for federal agencies to use in developing security programs.

[q] Cybersecurity Information Sharing Act

[a] A law that authorizes companies to monitor and defend their information systems.

[q] Categories of state data protection laws

[a] Categories:

Data privacy laws.

Breach notification laws.

Data security laws.

[q] Data privacy

[a] A concept representing the appropriate use of data.

[q] Data security

[a] The protection of data from unauthorized access.

[q] Cybersecurity

[a] The protection of data from unauthorized access through the internet.

[q] Breach notification laws

[a] Laws in all 50 states that require organizations to notify individuals of security breaches.

[q] Personally identifiable information

[a] Unique information for a person, including social security number or address, that requires safeguarding.

[q] Data security laws

[a] State laws relating to the security of data.

[q] Best practices when managing data

[a] Best practices:

Appoint a chief information security officer.

Limit the number of employees that can access personal data.

Install security features.

Train employees.

Destroy personal data that isn’t needed.

Establish an online privacy policy.

Learn from mistakes.

[q] Joint tortfeasors

[a] Two or more parties who act together to commit a tort.

[q] Uniform Contribution Among Joint Tortfeasors Act

[a] An act that allows those paying more than their share of damages to collect from other tortfeasors.

[q] Enterprise liability

[a] An expanded liability concept in which manufacturers within an industry share liability for defective products.

[q] Alternative liability

[a] An expanded liability concept that shifts the burden of proof to each of several defendants when it is uncertain as to who caused injury.

[q] Market share liability

[a] An expanded liability concept in which the plaintiff must sue all manufacturers comprising a substantial share of the market.

[q] Concert of action

[a] An expanded liability concept that applies when all defendants acted together or cooperatively.

[q] Conspiracy

[a] An expanded liability concept that applies when two or more parties worked together to commit an unlawful act.

[q] Vicarious liability

[a] A situation in which one party is held partly responsible for the unlawful actions of a third party.

[q] Relationships that can result in vicarious liability

[a] Relationships:



Parent and child.

[q] Negligent entrustment

[a] Leaving a dangerous instrument with a child.

[q] Negligent supervision

[a] A parent’s failure to exercise reasonable control over a child.

[q] Family purpose doctrine

[a] A situation in which the owner of an auto used by a family member can be held liable for damages while a family member is driving.

[q] Good Samaritan laws

[a] Laws that protect a person providing help to others.  Provides that a person will not be liable for damages as a result from rendering aid.

[q] Class action lawsuit

[a] A lawsuit that permits one person to file a suit on behalf of an injured group.

[q] Mass tort litigation

[a] A class-action suit based on tort law rather than contract law.

[q] Features that must be considered to classify a suit as a class action suit

[a] Features that must be considered:




Adequacy of representation.