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Vol. 6, Iss. 2
February 13, 2017

SCOTUS Nominee Judge Neil Gorsuch And Insurance Coverage:
Haunted Houses And Lost Fenders

Many are busy these days delving into SCOTUS nominee Judge Neil Gorsuch’s decade of decisions from the Tenth Circuit to determine what his views may be on a host of important issues likely to come before the high court. One conclusion that these voyeurs have reached (and an easy one at that) is that the guy is a masterful writer. He employs a conversational, storytelling style and often uses a catchy lede to grab the reader’s attention from the get-go. Assuming he is confirmed, the legal press and blogosphere will have a wonderful time reporting on the latest Gorsuch yarn, turn of phrase or clever prose.

I took a look at Judge Gorsuch’s opinions in liability insurance coverage cases. Just curious what I’d find. Any trends? Did he show a propensity to find or deny coverage? Could his approach to policy interpretation be discerned? The result was both unsatisfying and fascinating.

Judge Gorsuch participated as a panel member in many decisions in liability coverage cases. But he authored just a very small number. In fact, the number is so small, compared to how many in which he participated, that you get the impression that he was purposely trying to avoid having to write the opinion in coverage cases. If that’s so, then the Judge is of course pleased that the U.S. Supreme Court does not take insurance coverage cases. If he enjoyed them, he’d be out of luck. Like enjoying ice fishing and moving to the Sahara.

So while there were not enough Gorsuch-authored opinions in liability coverage cases to draw any conclusions about the judge’s views, I did find a few that make the point about his wonderful writing style. Here are the ledes in a few of his insurance coverage and related cases.

Western World Ins. Co. v. Markel Am. Ins. Co., 677 F.3d 1266 (10th Cir. 2012) (“other insurance” clause dispute)
“Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.

The problems began at the front door of the Bricktown Haunted House in Oklahoma City. There Mr. Hodges was working the twilight hours checking tickets as guests entered. When the flashlight he used began flickering and then died, he ventured inside in search of a replacement. To navigate his way through the inky gloom, Mr. Hodges used the light of his cell phone. But when an actor complained that the light dampened the otherworldly atmosphere, Mr. Hodges turned it off and stumbled along as best he could. He was aiming for the freight elevator, where (imprudently, it turns out) spare flashlights were stored. When he reached the elevator, Mr. Hodges lifted the wooden gate across the entrance and stepped in. But because of the brooding darkness, Mr. Hodges couldn’t see that the elevator was on a floor above him and he crashed 20 feet down the empty elevator shaft.”

Johnson v. Liberty Mut. Fire Ins. Co., 648 F.3d 1162 (10th Cir. 2011)
“This case is about a pair of missing tail lights and the limits of reasonable foreseeability. Russell and Jennifer Johnson blame Liberty Mutual for failing to hold onto a pair of tail lights that, they say, would have helped them win a personal injury lawsuit they wanted to bring. Problem is, the Johnsons never asked Liberty Mutual to keep the tail lights, never mentioned their intent to sue, and allowed years to pass without a word. Now they fault the company for failing to divine their hidden (and perhaps not yet formed) intentions. Because the Johnsons, quite unsurprisingly, cannot identify a statutory or contractual basis for their claim, they ask us to create one for them in the common law of tort. But, we hold, the common law doesn’t require such uncommon foresight.”

Regional Air, Inc. v. Canal Ins. Co., 2011 U.S. App. LEXIS 683 (10th Cir. Jan. 14, 2011)
“Sometimes litigation takes so many twists and turns that, by the end of it all, it’s hard to tell who won and who lost. Ours is such a case. After much motions practice and a trial, Canal paid Regional Air just less than $60,000 for an insurance loss. After trial, both sides declared victory. And this led to a whole new fight over who won and who lost the last fight. Claiming to be the ‘prevailing party,’ each side argued that Oklahoma law entitled it to recover attorneys’ fees, costs and, in Regional Air’s case, interest from its opponent.”

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