Of course I was disappointed when U.S. Supreme Court Justice Sonia Sotomayor declined my request to be interviewed for Coverage Opinions. But I was not disappointed, nor surprised, in how gracious Her Honor was in turning me down. If nothing else it was exciting to see Coverage Opinions mentioned on Supreme Court letterhead.
See Justice Sotomayor’s letter here

Justice Sotomayor is not going to see any liability coverage cases at One First Street. That’s for sure. Liability coverage issues never get to the U.S. Supreme Court. [There is a greater chance of me playing in the NBA than the Supreme Court agreeing to hear a pollution exclusion case.] But then-Judge Sotomayor was involved in a lot of them during her time on the Second Circuit and District Court.

When Judge Sotomayor was nominated to the Supreme Court in 2009, by a Democratic President, she was, not surprisingly, labeled a liberal in this age of the politicization of the Supreme Court nomination process. At the time of her nomination I looked at Judge Sotomayor’s body of opinions that she had authored in liability coverage cases. My conclusion -- Judge Sotomayor had been very (make that very, very) insurer-friendly during her time on the bench. In fact, at one point in my review, I actually said to myself, Has she ever ruled in favor of a policyholder? She had, of course, but her record reflects that her decisions had overwhelmingly been in favor of insurers. In general, not what you would have expected from someone being tagged as a liberal. The final score was insurers by a landslide. [My report on Judge Sotomayor’s insurance record was picked up by The Philadelphia Inquirer, the insurance press and loads of blogs. It was pretty neat.]

Here are some key quotes from a sample of Judge Sotomayor’s opinions in coverage cases that have favored insurers:

Maska U.S., Inc. v. Kansa General Ins. Co., 198 F.3d 74, 84 (2d. Cir. 1999) (Sotomayor, J.) (“We hold that the absolute pollution exclusions in the Zurich policies do not violate any established Vermont public policy, and that Maska has waived its contention that Zurich's failure to comply with the statutory filing requirements voids the exclusions. We further hold that coverage is not available under U.S. Fire’s Defender policy because the underlying environmental liability claims were neither asserted against Maska nor reported to U.S. Fire during the policy period.”).

Greenidge v. Allstate Ins. Co., 446 F.3d 356, 364 (2d. Cir.) (Sotomayor, J.) (“Unfortunately, it was the Greenidges’ own actions, and not Allstate’s, that put them at risk of a large adverse judgment. The law of bad faith is not intended to reduce the incentives of insured parties to protect their own interests in situations where they are empowered to do so. In the instant case, the Greenidges had ample opportunity to protect their own interests. Allstate was aware of the options available to the Greenidges, and it was also aware that the Greenidges were represented by private counsel. Allstate was therefore entitled to assume that the Greenidges would take steps to protect their own interests. The Greenidges’ failure to do so does not convert Allstate's refusal to accept the Seay plaintiffs’ settlement offer into a display ‘of recklessness on the part of the insurer.’”).

Hugo Boss Fashions, Inc. v. Federal Insurance Co., 252 F.3d 608, 625 (2d. Cir. 2001) (Sotomayor, J., Dissenting): “I am in agreement with the majority on all matters except the duty to defend. The majority holds that even when an insurance policy exclusion unambiguously denies coverage, an insurer will need to defend a suit whenever it is ‘uncertain’ that this Court would have concluded that the policy exclusion was unambiguous. … Because I find no such requirement in New York law, I respectfully dissent from Part II.A. of the majority’s opinion.”).

Tradin Organics USA, Inc. v. Md. Cas. Co., 2009 U.S. App. LEXIS 7918, *1-2 (2d. Cir.) (Summary Order) (“Exclusions like the ‘Your Product’ exclusion here are ‘intended to exclude coverage for damage to the insured’s product, but not for damage caused by the insured’s product to persons or property other than the insured’s own product. … As such, the risk that [Tradin] would be required to make good on its warranty of quality was a contractual or commercial risk that [Maryland] did not intend to insure. The policy provided by Maryland was a liability policy, not a performance bond. Because Tradin’s claim was based on damage to Tradin’s product--a risk specifically excluded by the ‘Your Product’ provision--Maryland properly denied coverage of the claim.”) (citations and internal quotation marks deleted).

United States Underwriters Ins. Co. v. Affordable Hous. Foundation, 88 Fed. Appx. 441, 441-42 (2d. Cir. 2004) (Summary Order) (“For substantially the reasons discussed by the district court, and after conducting our own close reading of the policy, we conclude that - despite the L-257 endorsement letter - the policy remains unambiguous with respect to the question disputed by the parties. Examining the policy as a whole, we find that the policy, irrespective of whether the conditions of the L-257 letter are met, unambiguously excludes bodily injuries to the employees of contractors from coverage.”) (citations and internal quotation marks deleted).

A.M. v. Royal Ins. Co. of Am., 2000 U.S. App. LEXIS 12036, *2-3 (2d. Cir. 2000) (Summary Order) (“Hazard claims, however, that these exclusions (‘the Abuse Exclusions’) do not apply because, as the settlement agreement with A.M. and D.M. stipulates, he was criminally insane when he committed the underlying acts against A.M., and an insane individual cannot form legal intent under Vermont law. … We reject this argument. Unlike the ‘intentional acts’ exclusion in the policy at issue in Combs, which barred coverage for intentional conduct by the insured, the Abuse Exclusions in this case do not, on their face, require that the insured have acted intentionally. Moreover, we are unpersuaded by Hazard’s claim that the exclusions contain an implicit intent requirement. Given that a separate provision of each policy expressly excludes coverage for injury ‘which is expected or intended’ by the insured, reading an intent requirement into the ‘Abuse Exclusions’ as well would render the latter provisions all but superfluous.”).

Mount Vernon Fire Ins. Co. v. Chios Constr. Corp., 1996 U.S. Dist. LEXIS 414, *9-10 (S.D.N.Y.) (Sotomayor, J.) (“Thus, there is not even a metaphysical possibility that the Doctor injury claim is covered. Although Frka, the Chios employee on site, states that ‘no subcontractor was permitted to work at any of the job sites without Chios supervision,’ this statement does not magically transform C & T from an independent contractor into a Chios employee or agent. On the factual record before me, it is clear that Chios never treated its subcontractors as employees or agents and that C & T controlled the means and manner by which its work was performed.”).

I am disappointed that I won’t be able to ask Justice Sotomayor, as, of course, I would have, whether Her Honor misses hearing liability coverage cases. [Like there could be any doubt.] But I appreciate that she took the time to consider my request.