When President Trump put forward 10th Circuit Judge Neil Gorsuch for the top court, the media, understandably, took sides, for and against the nomination. The only point of agreement was that Judge Gorsuch is a graceful writer.
In Western World Insurance Company v Markel American Insurance, a garden variety coverage dispute involving apportionment of loss between two insurers who both wrote CGL coverage for the Bricktown Haunted House in Oklahoma City, Judge Gorsuch opened his opinion (and foreshadowed his conclusion) as follows:
Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.
In brief, the District Court ruled that Markel properly invoked its “other insurance” escape clause to avoid paying anything toward the defense and indemnity of the Haunted House. Western World (which did defend and indemnify the insured) appealed, contending that Markel’s escape clause was buried in an endorsement modifying the definition of WHO IS AN INSURED, and thus was ambiguous and contrary to Oklahoma’s reasonable expectations doctrine. Judge Gorsuch agreed, yet in his ruling, Judge Gorsuch, gracefully, gave Markel its due:
We must and do readily concede Markel’s complaint that the reasonable expectation doctrine tends to disfavor insurers, that it places a thumb on the scale of the insured seeking coverage. But some ambiguity-resolving rule of decision is necessary. And the Oklahoma Supreme Court has adopted the rule it has because, often enough in its view, “[i]nsurance contracts are contracts of adhesion” forced by insurers on insureds with inferior bargaining power…. Neither may we, obliged to apply state law in this diversity action, rightly do anything other than faithfully follow that state policy direction.
So, it seems, whatever lines are drawn in the confirmation battle, no fault line exists in Judge Gorsuch’s prose. And that’s it for this This and That. If you have any comments about this post, please call or email Dennis.