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Coverage Opinions
Effective Date: April 17, 2023
Vol. 12 - Issue 3
Click The Title Of The Article To Read It.

Encore: Randy Spencer's Open Mic
The Most Interesting Insurance Man In The World

Insurance Key Issues: Last Time On Sale (49% Off) In 2023
My Wall Street Journal Op-Ed On 1800s Litigation Over Horse Racing Disputes
You'd Better Be Very Sure You Are Right Before Disclaiming Coverage To This Insured
Smokey The Bear Is Probably Not This Insurer's Mascot
First Court Ever Addresses Whether Blood Is A "Pollutant" For "Pollution Exclusion"
This Insured Has A Lot To Say About Getting SCOTUS To Hear His Coverage Case
Court Addresses Coverage For The "Nimrod Bull Bash"
Sofa Being Carried Down Stairs Causes Millions In Damages.  Is That "Use Of An Auto"? 
SCOTUS And Number Of Occurrences -- In 1874!

Duty To Defend Not Based On Potential For Lability, But Potential For Coverage

Take Care: It's A $6 Million Issue

Insurer Has No Duty To Pay Defense Costs Of Self-Represented Insured

Tapas: Small Dishes Of Insurance Coverage
• Role Of Diminished Mental Capacity On Intentional Act Exclusion


Back Issues:
  Volume 5 - Issue 12 -December 7, 2016
  Volume 6 - Issue 2 -February 13, 2017
  Volume 8 - Issue 1 - January 3, 2019
  Volume 9 - Issue 1 -January 8, 2020
  Volume 9 - Issue 2 -February 26, 2020
  Volume 9 - Issue 3 -March 24, 2020
  Volume 9 - Issue 4 -May 31, 2020
  Volume 9 - Issue 5 -July 16, 2020
  Volume 9 - Issue 6 -September 23, 2020
  Volume 9 - Issue 7 -October 30, 2020
  Volume 9 - Issue 8 -December 7, 2020
  Volume 10 - Issue 1 -January 11, 2021
  Volume 10 - Issue 2 -March 8, 2021
  Volume 10 - Issue 3 -April 28, 2021
  Volume 10 - Issue 4 -June 17, 2021
  Volume 11 - Issue 1 -January 3,2022
  Volume 11 - Issue 2 -February 28,2022
  Volume 11 - Issue 3 -June 15,2022
  Volume 11 - Issue 4 -August 15,2022
  Volume 11 - Issue 5 -October 15,2022
  Volume 11 - Issue 6 -Decmber 16,2022
  Volume 12 - Issue 1 -January 12,2023
  Volume 12 - Issue 2 -March 14,2023
  Volume 12 - Issue 3 April 17,2023



Vol. 12 - Issue4
May 8, 2023


Encore: Randy Spencer’s Open Mic

The Most Interesting Insurance Man In The World



This “Open Mic” column appeared in the November 13, 2013 issue of Coverage Opinions
A really old one.  And one of my favorites.







Vol. 12 - Issue 4

May 8, 2023



It was great to see so many people take advantage of the recent 49%-off sale on Insurance Key Issues. The sale was supposed to conclude at the end of April -- and the book would then likely go on sale again in the Fall.  But that is not going to be the case.  Insurance Key Issues will not be on sale again in 2023.  For this reason, the sale has been extended through May 12.    
It’s the last opportunity this year to take advantage of a deep-discount to see what Key Issues is all about or pick up the new edition if you are using an older one.  As each new edition adds about 900 new cases, older ones are much less effective.     

For more information on Insurance Key Issues and links to Amazon to order, click here:


After May 12, contact me directly if you are interested in a discounted bulk purchase and I can arrange that.  






Vol. 12 - Issue 4

May 8, 2023


My Wall Street Journal Op-Ed On 1800s Litigation Over Horse Racing Disputes


Last Friday, the day before the Kentucky Derby, I published an op-ed in The Wall Street Journal looking at judicial decisions, from the 1800s, addressing disputes over horse racing.  It’s a narrow subject, for sure.  I hope you can check it out.  Regular readers of Coverage Opinions know that I am a long-time student of the intersection of the law, sports and pop culture – and with a particular interest in old, old cases.  This one checked all the boxes. 







Vol. 12 - Issue 4

May 8, 2023


You’d Better Be Very Sure You Are Right Before Disclaiming Coverage To This Insured 


I couldn’t help but smile when I saw the caption on this recent decision from a Florida federal court.

Needless to say, if the insurer gets it wrong with this insured, a suit for bad faith may not be its biggest worry.  Not to mention, good luck keeping things privileged when the insured is all-knowing.




Vol. 12 - Issue 4

May 8, 2023


Smokey The Bear Is Probably Not This Insurer’s Mascot


I have long-enjoyed interesting names of insurance companies and have written about them in Coverage Opinions over the years.  My all-time favorite is Lightening Rod Mutual Insurance Company.  Here are a few others:

  • Accident Insurance Co. I hope they didn’t pay a naming consultant for that.
  • Balboa Insurance Company.  They must insure boxers.
  • Lewis & Clark LTC RRG, Inc.  Always exploring for coverage for its insureds.  
  • Elephant Auto Insurance Company.  They sell their policies for peanuts.

So, of course I was excited to come across this recent decision, from a Florida federal court, involving an unusually-named insurer.  I guess they issue fire policies.  Actually, I’m not sure what Accelerant does.  I checked out the insurer’s website.  I needed some vinaigrette to go with the word salad describing what they do.          





Vol. 12 - Issue 4

May 8, 2023


This Insured Has A Lot To Say About Getting SCOTUS To Hear His Coverage Case


Sergei Vinkov, pro se, has been involved in incredibly protracted litigation with Brotherhood Mutual Ins. Co. over coverage, under a multi-part liability policy, for disparaging social media posts that he made about a solar panel company.  He claimed that his church was not receiving the promised savings in energy costs from use of the company’s solar panels.  There are about 30 decisions included on Lexis.  And more to come – he is now seeking SCOTUS review of a decision.   

There is zero chance that the United States Supreme Court will hear this appeal -- a garden variety breach of contract dispute under state law.  Zero.  Like, there’s a better chance I could beat Steph Curry in a three-point shooting contest. 

But Mr. Vinkov must not see it this way.  He filed an application with the high court to exceed the word limit in his petition for certiorari.  I guess that since he is trying to convince the justices to do the impossible, he needs as many words as possible.  His application to Justice Jackson, and then referred to the court was, get this, denied.  Vinkov v. Brotherhood Mutual Ins. Co., 2023 U.S. LEXIS 1611 (U.S. April 17, 2023).    






Vol. 12 - Issue 4

May 8, 2023


Court Addresses Coverage For The “Nimrod Bull Bash”


The gods were clearly smiling on Coverage Opinions when this gem was handled down late last month from a Minnesota federal court.  In Scottsdale Ins. Co. v. Meech, No. 22-454 (D. Minn. April 25, 2023), the court addresses coverage for the Meeches, insureds who operate a ranch that annually hosts the “Nimrod Bull Bash.” 

The event includes “Cowboy Softball” where participants play softball while bulls roam the field.  Scott Sellers suffered personal injuries during a game.  Sadly, the court does not describe the details of the incident.  Perhaps there was some confusion over whose fly ball it was.  Sellers said “I got it” and the bull said “I got it” and then boom.
The issue before the court was the potential applicability of two policy exclusions: “Athletic or Sports Participants” and “Special Event Participant Exclusion.”  The Meeches agreed that these exclusions applied to injuries suffered by a “participant.” But, they argued, Sellers was not a “participant” because he was not authorized to play.  He did not register in advance nor sign a waiver, as required.

The court was not impressed with the argument, concluding that the exclusion made no distinction between authorized and unauthorized participants.

In a companion case, Peta is suing the Meeches on behalf of the bull for injuries it sustained.  For that claim, summary judgment is pending in the coverage case on the meaning of “participant” since the bull was authorized – in fact required – to play in the game.






Vol. 12 - Issue 4

May 8, 2023


Sofa Being Carried Down Stairs Causes Millions In Damages.  Is That “Use Of An Auto”?


The facts of Furnishare, Inc. v. Travelers, No. 22-2245 (S.D.N.Y. April 28, 2023) are like something out of a cartoon.  Furnishare buys and sells furniture through the internet.  Furnishare sent a team to a building in lower Manhattan to pick up a sofa that a customer had sold.  While being carried down the stairs from the seller’s sixth floor condominium, the sofa struck an exposed water head and caused millions of dollars of damages to the building’s residences and the belongings of its occupants.  [In the interest of completeness, the court noted that the sofa was also irreparably damaged.]

Coverage litigation ensued.  It wasn’t a question of whether coverage was owed, but, rather, whose policy was to pay.  Travelers insured Furnishare under a commercial general liability policy and State Farm wrote the Auto policy.  The CGL, subject to an excess as well, had much higher limits than the Auto.  Which policy applied was the difference between $5 million and $1 million in coverage.

CGL versus Auto disputes are not unusual and nor was the issue here.  Although, usually the incident at issue takes place in much closer proximity to the auto.  But, in any event, it’s a “loading and unloading” case.

The Travelers CGL policy excludes coverage for “’[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ . . . owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’”  The policy defined “loading and unloading” to include ‘handling of property . . . [a]fter it is moved from the place where it is accepted for movement into or onto an . . . auto.’

So the Travelers policy excludes coverage for the “handling of property . . . [a]fter it is moved from the place where it is accepted for movement into or onto an . . . auto.”

Conversely, the State Farm Auto policy excludes coverage for “damages resulting from . . . the handling of property before it is moved from the place where it is accepted by the insured for movement into or onto a vehicle.”

The issue is clear.  Did the accident take place before or after the sofa was accepted by the insured for movement into or onto a vehicle?  In other words, is it excluded “use of on auto” under a CGL policy or covered “use of an auto” under an Auto policy?

The competing arguments were as follows: “Travelers argues that ‘the place’ can refer only to the inside of the condominium apartment from which the Furnishare movers first lifted the couch.  On this reading, the automobile exclusion to the Travelers CGL Policy kicked in—and the responsibility to provide coverage shifted to State Farm’s Auto Policy—the moment the couch exited the apartment. Furnishare argues that ‘the place’ could equally refer instead to the Textile Building.  On that reading, because the couch was well inside the building, on a sixth-floor stairwell, at the time it struck the sprinkler head, the Travelers CGL Policy was in effect and the State Farm Auto Policy was not.”

There is a boatload of case law nationally addressing the “loading and unloading” issue.  Not surprisingly, the court had no shortage of New York law to turn to for guidance.

Following a lengthy discussion, the court held that the accident at issue did not occur during “loading.”  Thus, the Travelers CGL policy’s automobile exclusion did not apply.

The court’s decision is expressed in terms of its comparison to, and examination of, New York’s highly fact-specific case law.  Thus, it is hard to express in brief and simple terms why the court reached its decision.  However, in general, the court simply viewed the sofa mishap as being too far removed from the truck waiting on the street to transport the furniture. 

The court observed that “[i]n each case [referring to one involving a person bring transferred to an ambulance], the object being transported and the persons carrying it were still well inside the building at the time of the accident. And in each case, at the moment of the accident, the vehicle waiting outdoors (there, the ambulette; here, the Furnishare truck parked outside the Textile Building and across a sidewalk) was not in any way involved in the accident. Indeed, the accident could equally have occurred had the vehicles not yet arrived outside at all. Here, had the truck been delayed in traffic, or in the process of seeking a parking spot, or misdirected to a different location, the collision between the couch and the sixth-floor sprinkler was just as possible. That the moving truck, in fact, was waiting outside had no causal consequence.”

The court also found support in distinguishing a 1952 decision from the New York Court of Appeals: “First, there [Wagman v. American Fidelity & Casualty], the ‘loading’ was indisputably underway at the time of the accident. The store employees had brought several loads of clothes from the store to the truck and the supervisory employee was actively ‘engaged in counting and checking the clothes.’  By contrast, the accident on the stairwell here occurred well in advance of any act of loading anything onto the vehicle, or even opening its rear door to receive the couch. This fact also distinguishes this case from others cited by Travelers.”






Vol. 12 - Issue 4

May 8, 2023


SCOTUS And Number Of Occurrences -- In 1874!


Ok, there’s some hyperbole in that headline, but not entirely.  Imagine my surprise when, while doing research for the Wall Street Journal horse racing piece addressed above, I came upon Travelers Ins. Co. v. Seaver.  This is an 1874 United States Supreme Court case, addressing coverage under a life insurance policy, where the concept of number of occurrences was central to the court’s decision. 

[I’m not sure how this life insurance dispute, involving nothing more than the applicability of a policy exclusion, got to SCOTUS.  That sure isn’t happening today.  I guess things were different in 1874.  In any event, fine points of U.S. Supreme Court jurisdiction isn’t something I’m versed in.]

A man named Seaver was killed during a horse race in Morrisville, Vermont.  He had been riding in a sulky – a two-wheeled seat behind the horse (harness racing) – when his sulky collided with another horse’s sulky.  Seaver jumped out of his seat and landed on his feet, uninjured.  All would have been fine if he had just stayed there.  But, instead, he called out to his horse, who slowed down, and then Seaver ran toward her to get hold of the reins to stop her.  But Seaver became entangled in the reins and was dragged by the horse until his head hit a stone. He died the next day.

His wife, Elizabeth Seaver, sough the benefits of a life insurance policy on her husband.  Travelers denied the claim, citing a policy exclusion for death “caused by dueling or fighting, or other breach of the law on the part of the assured, . . . or by his willfully exposing himself to any unnecessary danger.”  Mrs. Seaver filed suit.

The key to the case was the cause of Mr. Seaver’s death.  First, at the time of his death, he was engaged in a horse race where a large sum of money had been wagered.  A Vermont statute, against wagering on a horse race, clearly declared Seaver’s act to be a misdemeanor.  However, the collision between the sulkies may have been caused by Gilmore, the other rider, engaging in an improper racing maneuver in an effort to get the inside track. 

The coverage dispute went to trial and the jury found for Mrs. Seaver.  The U.S. Supreme Court reversed and granted a new trial.

At issue was the propriety of a lengthy jury charge concerning the cause of Mr. Seaver’s death. It is too tedious to address it all here.  But one aspect of the charge was as follows: “That if the jury should find that Seaver was killed by the race itself, by an ordinary accident of the race, so that the race was the proximate cause of the death, the plaintiff could not recover; but if the jury should find that Gilmore turned his horse in intentionally and tortiously, with the purpose of winning the race at all hazards, whether he should crowd Seaver from the track or not, then that the conduct of Gilmore and not the race would be the proximate cause of the death, and the plaintiff would be entitled to recover.”

In essence, if Seaver was killed by an ordinary accident of the race, then his wife could not recover as he had been engaged in an illegal act and the policy exclusion -- breach of the law or by willful expose to any unnecessary danger -- would apply.  But if Seaver had been killed because of Gilmore’s improper riding, then policy proceeds were owed.

By its verdict, the jury concluded that Seaver’s death was not caused by the violation of the law “in trotting for a wager.”

However, the U.S. Supreme Court’s Justice Miller saw it differently and reversed and granted a new trial:

“But we do not think this new force or cause is sufficiently made out by this verdict. The leap from the sulky and securing the reins, and the subsequent fall and injury to Seaver are so close and immediate in their relation to his racing, and all so manifestly part of one continuous transaction, that we cannot, as this finding presents it, say there was a new and controlling influence to which the disaster should be attributed. If he had been landed safely from his sulky and, after being assured of his position, had, with full knowledge of what he was doing, gone to catch the animal, his death in that pursuit when the race was lost might have been too remote to bring the case within the exception.

“But as the finding presents it, we cannot say that the accident was not caused by the race which was itself a violation of the law, and which might still have gone on had he caught his mare in time.”

While the court was not addressing number of occurrences in the traditional CGL-policy sense, the decision has similarities to courts today that are confronted with counting occurrences.  Most states adopt the “cause test” to determine number of occurrences.  While that can often lead to a finding of a single cause for all injuries, not always.  Sometimes multiple injuries have multiple causes – even if the court is required to apply the “cause test.” 

In making this determination, courts sometimes look at whether causes are simultaneous or linked in time or space.  Or does the role of intervening acts lead to multiple causes? 

And that’s not unlike what was in Justice Miller’s mind when addressing the cause of Mr. Seaver’s death.  Was there simply one cause of Mr. Seaver’s death – everything was tied to the illegal horse race?  In other words, everything was so closely related to the horse race that it was all part of what he called “one continuous transaction.”  Or is it possible that there was, in the Justice’s terms, a “new and controlling influence” – a non-illegality that happened after Seaver came off the sulky -- that caused his death?

Certainly a neat 150-year-old find!






Vol. 12 - Issue 4

May 8, 2023


Duty To Defend Not Based On Potential For Lability, But Potential For Coverage


In one way, this is an unusual duty to defend case.  The underlying facts are set out by the court:

“Husband and wife Simeon and Roslyn Peroff filed suit against [Poonam] Dua and Eric Taylor (Taylor) for personal injuries and property damages caused by Taylor’s dogs.  In their complaint, the Peroffs alleged that while they were walking their two dogs on a street in Calabasas, California, Taylor was also walking his dogs, and Taylor’s dogs attacked the Peroffs’ dogs. The Peroffs alleged that as they walked by Taylor, they saw two pit bull dogs standing by him on retractable leashes. They alleged that the dogs were ‘let loose by Taylor,’ and Taylor’s dogs attacked the Peroffs’ dogs. Both of the Peroffs’ dogs were physically injured. The complaint alleged that this experience also caused mental and emotional distress to the Peroffs as witnesses of the attack.”

At issue was coverage under the liability section of a Stillwater Insurance homeowner’s policy issued to Dua.  The policy contains an “Animal Liability Exclusion” as follows: “This insurance does not apply to any occurrence or damages caused by any animal, at any time, at any premises insured hereunder, or caused by, arising out of, or in any way related to any animal owned by or in the care, custody, or control of the insured, or any member of the insured’s family or household.”

Stillwater denied coverage, citing the “Animal Liability Exclusion.”  Dua settled with the Poroffs and filed suit against Stillwater.  The trial court found for Stillwater.  But the California appeals court, in Dua v. Stillwater Ins. Co., No. B314780 (Cal. Ct. App. May 5, 2023), reversed.

The appellate court noted that, under California law, the determination of an insurer’s duty to defend allows for the consideration of extrinsic evidence.  This Stillwater did not do: “When Dua sought Stillwater’s defense against the Peroffs’ lawsuit, she informed Stillwater that she did not own the dogs and that the dogs were in the care, custody, and control of her boyfriend when the dog attack occurred because Taylor was walking the dogs. Stillwater responded with a letter stating there was no coverage, citing Exclusion 2. Stillwater ignored the facts provided by Dua suggesting that the policy’s animal exclusions did not apply because she did not own the dogs, nor were they in her care, custody, or control.”

Cases involving the role of extrinsic evidence, in the determination of an insurer’s duty to defend – when permitted -- are not unusual.  Here’s where Dua v. Stillwater addresses an additional, and unusual issue.

Stillwater argued that “if Dua lacked ownership, care, custody, or control of the dogs, then there is no possibility that Dua could be held liable under the Peroffs’ complaint.”

The appeals agreed that that may be an accurate statement of tort law.  However, the court went on to state that “Stillwater conflates the possibility of Dua’s liability with Stillwater’s duty to defend. Even if Dua cannot be found legally liable under the Peroffs’ complaint as pleaded, and is therefore not entitled to indemnity coverage under the policy, Stillwater may still be required to defend her. The Peroffs’ claims, when evaluated in light of the facts presented by Dua to Stillwater when she tendered the claim, may have been frivolous and unmeritorious, but did not come within the animal liability exclusion. They thus created at least a possibility of coverage and the duty to defend.”

The court noted that Stillwater was not considering that insurers must defend groundless, false or fraudulent actions.

The court could not rule out the possibility that “Stillwater unreasonably or improperly failed to defend when it was presented with facts suggesting that the animal liability exclusions did not apply.”  Hence, Stillwater’s motion for summary judgment on bad faith was denied.






Vol. 12 - Issue 4

May 8, 2023


Take Care: It’s A $6 Million Issue


At issue in Commerce Ins. Co. v. Philadelphia Indem. Ins. Co., No. 21-40053 (April 27, 2023) was a dispute between two insurers over coverage for a rape.  The victim was in her office. The rapist had been seen earlier in the building and his presence reported to building management and security, but neither took steps to remove him.

Putting aside who insured whom, who was the landlord and who was the tenant and additional insured issues under the lease – none relevant to the discussion -- Commerce Insurance settled the underlying negligent security claim for $6 million and sought indemnification from Philadelphia Indemnity Ins. Co.     

At issue before the court was the applicability of an Abuse or Molestation exclusion under Philadelphia’s commercial general liability policy.  The exclusion provided: “This insurance does not apply to “‘bodily injury’ . . . arising out of: . . . [t]he actual or threatened abuse or molestation by anyone of any person while in the care, custody, or control of any insured.’”

First, the court held that, while “molestation” was undefined, rape fit within its definition.  The issue that received more attention was whether the victim was in the “care” of the insured-landlord at the time of the assault.

The court first looked at the definition of “care,” noting that it includes “charge, supervision, management: responsibility for or attention to safety and well-being . . . . One may be in the care of another, without being in the custody of or in the control of another.” (citations and internal quotes omitted).

Based on this definition of “care,” the court held: “A tenant is in the care of his or her landlord. . . .  That the Underlying Defendants were responsible for the safety and well-being of Rosenquist in the building is supported by the fact that the Underlying Defendants provided security services to the building and were informed of Damon’s presence before the attack, yet the building security guard failed to remove him from the premises, as is undisputed by the parties.”






Vol. 12 - Issue 4

May 8, 2023


Insurer Has No Duty To Pay Defense Costs Of Self-Represented Insured


I’ve never seen this duty to defend issue addressed.  And since there’s so much duty to defend case law, its unusual to see something new.  It’s a very brief decision, but the court didn’t need to say a lot to make its point.

Travelers retained counsel and defended Kathleen March, Patrick Bright and Walking U Ranch LLC is an “underlying property dispute.”  [That was the extent of the court’s description of the case.]  March and Bright are attorneys and performed some legal work on the case.  They sought to be paid for their efforts.  The brief opinion does not say what they did nor the nature of the work performed.  It’s not relevant to the issue, but it would have been interesting to see.

A California district court held that March and Bright were not entitled to recover their fees and the Ninth Circuit agreed.  The court cited a few rationales for its decision.

First, as a general principle, under California law, attorneys may not recover fees for work that they perform representing themselves.  The court then took that general principle and concluded that it also barred self-represented attorneys from recovering fees from insurers that have a duty to represent them.

The court also concluded that March and Bright could not recover their fees because they performed work on behalf of attorneys that Travelers had appointed to represent them.  “Attorneys,” the court concluded, “may not circumvent the restriction on fees for self-representation by hiring a ‘straw man’ attorney to nominally represent them while they do all the work.”

Their last argument was the most interesting and seemed to me, at least on paper, to be their strongest to get around the general principle that self-represented attorneys may not recover their fees.  But it was rejected by the court as being based on a fiction:      

“March and Bright argue that they are entitled to attorney's fees because they represented Walking U Ranch, LLC, a distinct legal entity. Under California law, however, attorneys may not recover for work performed only on behalf of themselves and another party with identical interests. . . . March and Bright are married, and are the sole owners of Walking U Ranch, LLC. The Insureds therefore all shared the same interest in the outcome of the underlying action. There is also no indication that March or Bright spent any extra time in the underlying action representing Walking U Ranch, LLC rather than themselves.”





Vol.12 - Issue 4

May 8, 2023

Role Of Diminished Mental Capacity On Intentional Act Exclusion

I don’t often address expected or intended cases in CO as they are so fact specific.  So that’s why I relegated W. National Mutual Ins. v. Donahue, No. A22-1630 (Ct. App. Minn. April 24, 2023) to the Tapas column.  The court addressed the role of diminished mental capacity and the insured’s PTSD on the applicability of an exclusion [in an auto policy; that’s unique] for any insured who “intentionally causes ‘bodily injury.’”  If you have this issue, the case is worth checking out.  The court explained: “The district court determined that Donahue’s intent to injure is inferred from her commission of the offense of fleeing the police. Generally, courts infer intent to injure as a matter of law when the injury involves a criminal act of a serious nature.  But courts will not infer intent based on an actor’s commission of a serious criminal act if the act occurs when the actor is deemed to be unable to form the requisite intent because of serious mental illness.”  (citations and internal quotes omitted).