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January 16, 2013
Inside The Insurance Mind Of
Justice Sandra Day O’Connor

As discussed nearby, I’ve never considered the coverage issues associated with Chinese drywall to be significant in scope. But I took great interest in the Eleventh Circuit’s recent decision in Granite State Insurance Company v. American Building Materials, holding that the pollution exclusion precluded coverage for damages associated with defective Chinese drywall. My interest in the case stemmed not from the coverage issues, but, instead, one of the three judges on the panel – retired United States Supreme Court Justice Sandra Day O’Connor sitting by designation. Justice O’Connor has not been unwilling to lend her services to Circuit Courts of Appeal since her retirement from the nation’s top court. And she’s even confronted some coverage issues in this designated hitter role.

But now here was Justice O’Connor, having at times been called one of the most powerful women in the world, and having provided crucial votes in cases addressing some of the most important issues of our time – campaign finance, abortion, school vouchers, Bush v. Gore, affirmative action, freedom of association, and on and on and on, being called upon to address whether drywall that emits the smell of rotten eggs qualifies as a solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.

What must she have been thinking? I can think of a few things. (1) Next time I’ll read the fine print before agreeing to sit by designation on the Court of Appeals. (2) This is why we never let insurance coverage cases get to the Supreme Court. (3) Yes, the drywall smells, but that’s not why I’m turning up my nose at this case. (4) Wait, I have an idea. I’ll just declare Chinese drywall to be unconstitutional and go home. (5) There’s an exclusion for pollution? How can that be? Doesn’t that violate freedom of leach? (6) What’s a pollutant? Wait, didn’t Justice Stewart know it when he saw it. (7) Hmm, I might have been wrong to blame Scalia for leaving an egg salad sandwich in the refrigerator for too long. Maybe the Supreme Court has Chinese drywall.

That’s my time.

I’m Randy Spencer.

Contact Randy Spencer at Randy.Spencer@coverageopinions.info

Some Samples:
Volume 1 - Issue 1 - October 17, 2012
Volume 1 - Issue 4 - November 28, 2012
Volume 2 - Issue 2 - January 16, 2013
Volume 2 - Issue 3 - January 30, 2013
Volume 2 - Issue 4 - February 13, 2013
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