RLLI Section 44

1. Hypo: Chevron Life & Health issues a "life and accident" insurance policy to Strickland under which, among other benefits, $100,000 is to be paid to the insured following an injury that causes loss of a limb but only if there is dismemberment by severance within 90 days of the injury. Strickland is attacked by a bear while on a camping trip and has one of his legs terribly injured. Doctors struggle to save the leg and, 85 days after the injury, tell Strickland that if they believe they may be able to save the leg from an amputation if they can continue treatment for another three weeks. Strickland, who is aware of the 90 day limitation in the policy, decides to go ahead with the treatment. Unfortunately, 30 days later, doctors recognize their efforts have not succeeded and are forced to amputate Strickland's leg.  Strickland now seeks the $100,000 benefit from Chevron Life. He argues the provision is unconscionable. Assuming the ideas of this section apply to life and accident policies, how should the court decide the matter?

2. Take a jurisdiction, perhaps the state in which your law school is situated and do a search to find a case in which a court held a provision in an insurance policy to be unconscionable. Notice that I am not asking you to find instances where the claims behavior was unconscionable, but where the actual provision relied upon by the insurer was unconscionable. In some jurisdictions, this search may take considerable time. What is the ratio in your jurisdiction of cases in which the court rejected an unconscionability argument to one in which it was accepted? Why is this?