My gosh.  I can’t believe I’ve been doing this thing for nearly two decades.  I definitely enjoy writing an annual Top 10 cases article.  Some years more than others.  I haven’t stopped for one reason -- lots of people tell me that they look forward to it and enjoy it.  Plus, nobody needs their brother-in-law’s Netflix password to read it.  These are all good enough reasons to keep at it.  Thanks to everyone for reading the annual coveragepalooza and those who tell me that they look forward to it.  Without that, I would have stopped a long time ago. 

As I set out every year, here is the selection process.  It is a one-man show, devoid of input from others, accountability or checks and balances.  It is highly subjective and not the least bit scientific.  But none of this is to say that the selection process is willy-nilly.  To the contrary, it is very deliberate and involves a lot of analysis, balancing, hand-wringing and tossing and turning at night.  It’s just that only one person is doing any of this. 

As for the selection process, it goes 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 addition, cases that meet the selection criteria are usually (but not always) not included when the decision is appealed.  In such situation, the ultimate significance of the case is up in the air. 

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 reason why many unquestionably important decisions are not selected is 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 themost important coverage 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, consider a state high court that issues its first decision addressing the scope of the pollution exclusion.  The case answers whether the pollution exclusion should be interpreted broadly, applying to all hazardous substances, or narrowly, applying solely to so-called traditional environmental pollution. This would be a very significant decision for that state.  However, given the enormous body of case law nationally, addressing the pollution exclusion, such a decision would be very unlikely to have any influence nationally.  It would be just one decision in an ocean of many on the issue.  Thus, the decision would not be selected for inclusion here.

And some decisions are not selected because they involve narrow issues that rarely arise.  In 2019, there was lots of discussion about the California Supreme Court’s decision in Pitzer College v. Indian Harbor Insurance Co., holding that a policy’s choice of law provision was not enforceable since the law of the state listed in the policy conflicted with California public policy.  The issue was late notice and the policy stated that New York law applied.  However, in 20+ years reading insurance policies, I can count on one hand the number I’ve seen that include a choice of law provision.  The hyperventilation over this case was unwarranted.

If you think I missed a case, tell me.  I’ll be the first to admit that I goofed (and I have).  It is impossible to be aware of every coverage case decided nationally.
      
Best wishes for a healthy and prosperous 2020 and may any resolutions that you make last at least until February.  

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