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Vol. 3, Iss. 16
December 3, 2014

The Selection Process: Ten Most Significant Coverage Decisions Of 2014


Welcome to the 14th annual look back at the year’s ten most significant insurance coverage decisions. As I always do at the outset, here is my description of the selection process (repeated from past years’ editions). The process is highly subjective, not in the least bit scientific, and is in no way democratic. But just because the selection process has no accountability or checks and balances whatsoever does not mean that it wants for deliberativeness. To the contrary, the process is very deliberate and involves a lot of analysis, balancing and hand-wringing. It’s just that only one person is doing any of this.

The selection process operates throughout the year to identify coverage decisions (usually, but not always, from state high courts) that (i) involve a frequently occurring claim scenario that has not been the subject of many, or clear-cut, decisions; (ii) alter a previously held view on an issue; (iii) are part of a new trend; (iv) involve a burgeoning or novel issue; or (v) provide a novel policy interpretation. Some of these criteria overlap. Admittedly, there is also an element of “I know one when I see one” in the process.

In general, the most important consideration for selecting a case as one of the year’s ten most significant is its potential ability to influence other courts nationally. Many courts in coverage cases have no qualms about seeking guidance from case law outside their borders. In fact, it is routine--especially so when in-state guidance is lacking. The selection criteria operates to identify the ten cases most likely to be looked at by courts on a national scale and influence their decisions.

That being said, the most common reasons why many unquestionably important decisions are not selected are because other states do not need guidance on the particular issue, or the decision is tied to something unique about the particular state. Therefore, a decision that may be hugely important for its own state – indeed, it may even be the most important decision of the year for that state – nonetheless will be passed over as one of the year’s ten most significant if it has little chance of being called upon by other states at a later time.

For example, this year the Nevada Supreme Court issued its first-ever decision addressing whether the pollution exclusion should be interpreted narrowly (limited to traditional environmental pollution) or broadly (applying to all hazardous substances). See Century Sur. Co. v. Casino West, Inc. Resolution of this issue was a long-time coming for Nevada. But courts nationally are hardly in need of guidance on whether to interpret the pollution exclusion narrowly or broadly. Thus, despite the decision’s significance for the Silver State, it was not considered for inclusion on the annual Top 10 Best in Show.

The year’s ten most significant insurance coverage decisions are listed in the order that they were decided.

 

 
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