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Vol. 7, Iss. 1
January 31, 2018

Lawyers Dwell On Small Details: Court Defines “The” -- The Sometimes Overlooked Issue

When it comes to coverage rules, it is as black as coal that the interpretation of an insurance policy starts with its language. Policy language is king. And there may be no better example of this than claims whose outcome depends on the distinction between “the” insured and “any” insured. It is not the least bit uncommon for claims to turn on whether certain policy language uses one or the other of these seemingly innocuous (really innocuous) terms. That millions of dollars can be dependent upon whether an insurance policy says “the” insured or “any” insured is the kind of thing that causes some people to dislike lawyers and insurance companies. But, remember, policy language is king.

A common example of this is an exclusion that applies to the “criminal act of any insured.” Consider a suit filed by the victim of an attack at the hands of a teenager neighbor living in his parents’ home. The teenager, as an “insured” under his parents’ homeowners policy, will likely seek coverage for the suit under the liability section of such policy. In many instances, the policy will contain an exclusion for, among other things, bodily injury which results from “the criminal acts of any [or an] insured.” And not surprisingly, if the teenage perpetrator–insured was convicted of a crime, the criminal act exclusion will usually preclude coverage for him.

It is likely that the plaintiff’s attorney in the underlying case is well aware that coverage for the perpetrator may be hard to come by because of the possible existence of a “criminal act” exclusion. For that reason, the plaintiff may allege that the teen’s parents bear responsibility for the victim’s injuries, by failing to prevent their son from causing them. What’s at work here is, in all likelihood, an effort by the plaintiff to secure insurance dollars by arguing that, because the parents did not themselves commit a criminal act, they are not bound by the policy exclusion.

While it is true that the parents themselves did not commit a criminal act, insurers frequently argue that coverage nonetheless remains unavailable to them. The insurer’s expected argument will be that the exclusion at issue applies to injury that results from the “criminal acts of any insured”—and “any insured” (the parents’ son) in fact committed a criminal act. In other words, in such a situation, expect insurers to maintain that the applicability of the criminal act exclusion is not limited solely to the insured that actually committed the criminal act. Rather, so the argument goes, it applies to all insureds, including so-called “innocent co-insureds.” Insurers frequently make this argument for good reason—because many courts accept it. Others do not, based on a conclusion that such interpretation would be inconsistent with the policy’s severability of interests clause, i.e., that, except for limits, each insured is treated as if a separate policy was issued to it.

But despite concluding that no coverage is owed to the innocent co-insured, courts sometimes point out that their decision would have been different if the exclusion at issue had applied to “criminal acts of the insured.” If so, the exclusion’s applicability would have been limited solely to the insured that committed the criminal act (the teenage son) and coverage for his parents would have remained available. Likewise, when an exclusion uses the phrase “the insured,” and, as a result, does not preclude coverage for an innocent co-insured, courts sometimes point out that the insurer could have used different policy language to achieve a different result.

In my experience, despite the frequency in which this issue arises, and many judicial opinions addressing it, some insurers overlook it. And then when it’s pointed out to them, some are incredulous that, despite supporting precedent, a court would uphold a disclaimer based on the difference between the words “any” and “the.”

Artisan & Truckers Cas. Co. v. A&K Rentals, LLC, No. 17-27 (S.D. Ill. Jan. 3, 2018) is an “any” insured versus “the” insured decision. These cases are routine and there is nothing groundbreaking about it. I overlook many of these types of decisions when selecting cases to address in Coverage Opinions. But I chose A&K Rentals for this issue of CO. First, it is always good to have a refresher on the topic, especially since, as I mentioned, some insurers overlook it. Second, that policy language is king is made just about as clear as possible when you consider that the court defined the term “the” in reaching its decision.

Richard Thessing worked for American Complete Access Hoist and Platform LLC. He drove a tractor-trailer to deliver a building hoist—a large device used for lifting very heavy loads—to a construction site. Workers used a crane truck to unload the hoist. However, the crane dropped part of the hoist onto Thessing, killing him. A wrongful death action was brought against several companies, including A&K Rental, which owned the tractor-trailer, the crane truck and the hoist. Another defendant was American Complete.

The opinion is a tad unclear but it seems that Artisan issued an auto policy to A&K and American Complete was an additional insured. The insurer sought to deny coverage to A&K based on the policy’s Employer Liability Exclusion, which precluded coverage for “bodily injury to . . . an employee of any insured arising out of or within the course of (i) that employee’s employment by any insured; or (ii) performing duties related to the conduct of any insured’s business . . . .” (emphasis added).

Artisan’s argument was simple -- Thessing was an employee of any insured—American Complete. Therefore, the Employer Liability Exclusion in the policy applied to preclude coverage for A&K, even though Thessing was not an employee of A&K. In other words, all that needed to happen, for the Employer Liability exclusion to preclude coverage for A&K, was that Thessing be an employee of “any insured.” And he was -- Thessing was an employee of American Complete, which was “any insured.”

But A&K did not see it this way at all. It made the classic counter-argument that the policy’s severability of interests clause precluded the insurer’s position: “[A&K points] to a severability clause in the Artisan Auto Policy which provides: ‘[e]xcept with respect to the Limit of Liability, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or lawsuit is brought.’ A&K argues that the severability clause means that the policy covers A&K and American Complete as if they were separately insured—meaning that if Thessing was an employee of American Complete, then the exclusion would only preclude coverage from American Complete and not A&K.”

The court sided with the insurer, after turning to the dictionary for guidance, looking at the meaning of words that probably don’t get a lot of attention from dictionary users: “Merriam-Webster defines ‘the’ as ‘a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance.’ For example, ‘an employee of the insured’ indicates that the following noun—‘insured’—is a definite noun, specified by the context of the contract. So if A&K is the insured under the contract, and Thessing is not an employee of A&K, the employer’s liability exclusion would not apply to them because Thessing is not an employee of the insured. Unfortunately for A&K, the contract at issue excludes an injury to ‘an employee of any insured’—not ‘the insured.’ Merriam-Webster defines ‘any’ as ‘one or some indiscriminately of whatever kind.’ In that case, ‘an employee of any insured’ can be used to refer to one or some indiscriminate number of insureds in the contractual sphere outside of ‘the’ insured specifically at issue. . . . Even when you sever A&K away via the severability clause, Thessing is still an employee of ‘any insured’ of Artisan in this matter: American Complete.” (emphasis in original).

In reaching its decision the A&K court made the point that, under Illinois law, “the words of a policy should be accorded their plain and ordinary meaning.” In other words, policy language is king.

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