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We Didn't Really Mean 'Intentional': Structural Ambiguity Created by 'Personal Injury' Coverage
The purpose of insurance is to insure. In attempting to see that this purpose is achieved, courts have developed the following rules of construction that are beyond dispute. First, grants of coverage are broadly construed. See, e.g., Federal Home Loan Mtg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 444 (3d Cir. 2003); Community Found. for Jewish Educ. v. Federal Ins. Co., 16 Fed. Appx. 462, 465 (7th Cir. 2001); Blum v. Allstate Ins. Co., No. 4:03CV401 CDP, 2003 WL 23009136, at *2 (E.D. Mo. Dec. 15, 2003). Second, exclusions to coverage are strictly construed. See, e.g., Auto-Owners Ins. Co. v. Churchman, 489 N.W.2d 431 (Mich. 1992); Napoli, Kaiser & Bern, LLP v. Westport Ins. Co., No. 02 Civ. 7931 (JGK), 2003 WL 22952171, at *7 (S.D.N.Y. Dec. 15, 2003); Dursham v. Nationwide Ins. Co., 92 F. Supp.2d 353 (D. Vt. 2000). Third, if there is any doubt as to whether coverage exists, such doubts should be resolved in favor of the existence of coverage. See, e.g., American Bumper & Mfg. Co. v. Hartford Fire Ins. Co., 550 N.W.2d 475, 481 (Mich. 1996); Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090 (Colo. 1991). All of these doctrines, while generally recognized, result in endless disputes between the insurance purchasers (policyholders) and insurance sellers (insurance companies) on a daily basis when the specific facts of a claim develop. But one recurring scenario is not addressed by these broad maxims of insurance law: What should a court do with the insurance contract that is, by its very nature, internally structured so that there is an inherent conflict that renders a determination of available coverage ambiguous before a claim is even presented?
The Personal Injury Structural Ambiguity
General liability coverage sold in this country has historically provided coverage for “unintentional” acts. Prior to the adoption of “occurrence”-based liability insurance policies, this concept was embodied in the term “accident,” which in common parlance, means something that was not intended to happen. See Eugene R. Anderson, Jordan S. Stanzler, Lorelie S. Masters, “Insurance Coverage Litigation” ” 1.02, 7.04, 1-9, 7-9 – 7-10 (2d ed. 2002). The transition to “occurrence” did not fundamentally alter this concept, as that term has historically been defined to mean actions that are “unexpected and unintended” from the policyholder's perspective. See Id. ” 1.05, 7.04, at 1-32, 7-9 – 7-10. Indeed, “occurrence” is typically defined as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Id. ' 1.05, at 1-31 – 1-32. “Occurrence” has also been defined as “either an accident or happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally causes injury to persons or tangible property during the policy period.” South Macomb Disp. Auth. v. American Ins. Co., 572 N.W.2d 686, 696 (Mich. App. 1997).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?