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9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowCoverage OpinionsEffective Date: September 23, 2020Vol. 9 - Issue 6Click here for PDF ArchivesBack Issues:Declarations: The Coverage Opinions Interview With Trey GowdyProsecutor: "That's the job I want to be known for."Trey Gowdy is of course well-known for his eight years in the U.S. House ofRepresentatives. But he disliked the experience and wants to be known for his sixteenyears as a prosecutor. I spoke to Gowdy about his time as an assistant U.S. attorney andstate district attorney, as well as his recent #1 NYT bestseller about the art of persuasion.An hour on the phone with Gowdy and I didn't ask him a simple political question. He hadno complaints.Randy Spencer's Open MicThis Coverage Dispute Is The PitsEncore: Randy Spencer's Open MicInsurance For The Summer Road TripIntroducing The "At-Home Version" Of Insurance Key /CurrentIssue-Download.htmlVolume 2 - Issue 20 - October 30, 2013Volume 2 - Issue 21 - November 13, 2013Volume 2 - Issue 22 - November 27, 2013Volume 2 - Issue 23 - December 18, 2013Volume 3 - Issue 1 - January 8, 2014Volume 3 - Issue 2 - January 29, 2014Volume 3 - Issue 3 - February 12, 2014Volume 3 - Issue 4 - March 5, 2014Volume 3 - Issue 6 - April 1, 2014Volume 3 - Issue 7 - April 23, 2014Volume 3 - Issue 8 - May 7, 2014Volume 3 - Issue 9 - June 4, 2014Volume 3 - Issue 10 - June 25, 2014Volume 3 - Issue 11 - July 16, 2014Volume 3 - Issue 12 - August 20, 2014Volume 3 - Issue 13 -September 10, 2014Volume 3 - Issue 14 -October 6, 2014Volume 3 - Issue 15 -November 5, 2014Volume 3 - Issue 16 -December 3, 2014Volume 4 - Issue 1 -January 14, 2015Volume 4 - Issue 2 February 18, 2015Volume 4 - Issue 3 March 18, 2015Volume 4 - Issue 4 -April 8, 2015Volume 4 - Issue 5 -May 20, 2015Volume 4 - Issue 6 -June 9, 2015Volume 4 - Issue 7 July 15, 20151/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowThis Could Be One Grouchy Insurance CompanyRandy Spencer Is Keeping The King SafeCourt Finds Russian Interference In The CGL Policy's Insuring AgreementThis Line From A Coverage Decision Made Me SmileNovak Djokovic Booted From U.S. Open: Was It For An "Accident?"Dog Gets "One Free Bite" – For CoverageIndependent Counsel Or Not: Two Common Construction Defect RORsInsurer Says USC-ya In Court: Policyholder Can't Compel ArbitrationPolicyholder Head Exploding DecisionInsured Must Request Defense Or No Coverage – Even If Insurer Knows AboutClaimSupreme Court Adopts A 12-Corners Test For Determining Insurer's Duty To DefendA Fish Tale Leads To A Coverage Dispute In A State High CourtLesson in Policy DraftingTapas: Small Dishes Of Insurance Coverage Challenge Of Allocation Of Defense Costs Between Covered And UncoveredClaims Physical Restraint And Physical Bodily Confinement Are Not "Bodily 6/CurrentIssue-Download.htmlVolume 4 - Issue 8 -August 26, 2015Volume 4 - Issue 9 -September 30, 2015Volume 4 - Issue 10 -October 28, 2015Volume 4 - Issue 11 -November 11, 2015Volume 4 - Issue 12 -December 16, 2015Volume 5 - Issue 1 - January 13, 2016Volume 5 - Issue 2 - February 10, 2016Volume 5 - Issue 3 - March 2, 2016Volume 5 -Special Issue - March 14, 2016Volume 5 - Issue 4-March 30, 2016Volume 5 - Issue 5-April 29, 2016Volume 5 - Issue 6-May 31, 2016Volume 5 - Issue 7-June 22, 2016Volume 5 - Issue 8-July 27, 2016Volume 5 - Issue 9-September 7, 2016Volume 5 - Issue 10 -October 12, 2016Volume 5 - Issue 11 -November 9, 2016Volume 5 - Issue 12 -December 7, 2016Volume 6 - Issue 1 -January 11, 2017Volume 6 - Issue 2 -February 13, 2017Volume 6 - Issue 3 -March 22, 2017Volume 6 - Special Issue-May 1, 2017Volume 6 - Issue 5 -May 17, 2017Volume 6 - Issue 6 -July 12, 2017Volume 6 - Issue 7 - September 13, 2017Volume 6 - Issue 9 - December 13, 2017Volume 7 - Issue 1 - January 31, 2018Volume 7 - Issue 2 - March 7, 2018Volume 7 - Issue 3 - April 11, 2018Volume 7 - Issue 4 - May 9, 2018Volume 7 - Issue 5 - June 6, 2018Volume 7 - Issue 6 - July 18, 2018Volume 7 - Issue 7 - September 26, 2018Volume 7 - Issue 8 - November 7, 2018Volume 7 - Issue 9 - December 19, 2018Volume 8 - Issue 1 - January 3, 2019Volume 8 - Issue 2 - February 6, 2019Volume 8 - Issue 3 - March 20, 2019Volume 8 - Issue 4 - April 30, 2019Volume 8 - Issue 5 - May 31, 2019Volume 8 - Issue 6 - July 10, 2019Volume 8 - Issue 7 - August 21, 2019Volume 8 - Issue 9 - November 6, 2019Volume 8 - Issue 10 - November 20, 2019Volume 8 - Issue 11 - December 18, 2019Volume 9 - Issue 1 -January 8, 2020Volume 9 - Issue 2 -February 26, 2020Volume 9 - Issue 3 -March 24, 2020Volume 9 - Issue 4 -May 31, 2020Volume 9 - Issue 5 -July 16, 20202/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowVol. 9 - Issue 6September 23, 2020Trey Gowdy is of course well-known for his eight years in the U.S. House ofRepresentatives. But he disliked the experience and wants to be known for his sixteenyears as a prosecutor. I spoke to Gowdy about his time as an assistant U.S. attorney andstate district attorney, as well as his recent #1 NYT bestseller about the art of persuasion.An hour on the phone with Gowdy and I didn’t ask him a simple political question. He hadno complaints.I did the interview for the ABA Journal website. I hope you’ll check it out CurrentIssue-Download.html3/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowVol. 9 - Issue 6September 23, 2020This Coverage Dispute Is The PitsRandy Spencer is in a slump. The guy has let me down for the past several columns. They just haven't been very good. Hopefullyhe'll break out of it soon. If not, I'll have to consider looking for a replacement.FYI – I'll remind you that you do not pay for this fine publication. So if you believe that, on account of this slump, you are getting yourmoney's worth from CO, I'm not going to lose any sleep.***The end of summer has arrived. There will be many things to miss about it – especially in February. For me, near the top of the list, issummer fruit. My own grandmother could be granny smith herself, and I'd choose watermelon over any apple she offered me.Peaches, plums, cantaloupe, corn on the cob. I will miss them all. I know. I know. Corn on the cob is not a fruit. But it is sold in thefruit department. So that makes it a quasi-fruit. And it is something that I'll miss about summer -- so I am including it here.One of the kings of summer fruit is the cherry. Boy, how great are those red and white ones -- that cost like 12 a pound. They arecalled Rainier cherries. That's because only Prince Rainier can afford them.Cherries were recently at the heart of a lawsuit and subsequent coverage dispute. In 2019, Fred Crossman filed a putative classaction against four supermarkets in Rockingham County, New Hampshire. In Crossman, and all others similarly situated v. FranxMarkets, et al., No 19-2397 (Rockingham Cty. Sup. Ct. Nov. 11, 2019), Crossman alleged that the supermarkets pricing of cherrieswas fraudulent, as the per-pound price did not specify that it included the inedible pit. Crossman alleged that one-third of the weight ofa cherry is its pit. Thus, if cherries were priced as 3 per-pound, they were inflated by 1 per-pound. Crossman alleged that thesupermarkets should have included an explanation, next to the per-pound price of cherries, stating that one-third of the weight is for anon-edible portion of the fruit. Crossman asserted all manner of state consumer protection laws, as well as counts for breach ofcontract and common law fraud against the supermarket defendants.One of the defendants, Drum Markets, sought coverage for the Crossman action under its commercial general liability policy issuedby Live Free or Die Property & Casualty Insurance Company. Live Free or Die disclaimed coverage on the basis that the suit did notseek damages because of "bodily injury," "property damage" or "personal and advertising injury." Rather, as Live Free or Die saw it,the Crossman action alleged only economic losses suffered by the plaintiffs – paying one-third of the price for a pound of cherries thatwas not for an edible product.Drum retained its own counsel to defend the Crossman action and filed a coverage action. In Drum Markets v. Live Free or DieProperty & Casualty Insurance Company, No 20-1732 (Rockingham Cty. Sup. Ct. Aug. 29, 2020), the court denied Live Free or Die'smotion for summary judgment and granted Drum's. Thus, the court held that Live Free or Die owed a defense to Drum's.The court concluded that the Crossman action did, in fact, seek damages because of "property damage." The complaint alleged thatthe Crossman plaintiffs suffered a "loss of use of tangible property that is not physically injured," which is one of the definitions of"property damage" in the Live Free or Die CGL policy.Specifically, as the court put it: "The Crossman plaintiffs paid full price for entire cherries -- but lost the use of them, to the extent thatthey were not able to eat the portion that was the pit." The court declined to address Live Free or Die's argument that the "YourProduct" exclusion applied, as the insurer did not include the exclusion in the disclaimer letter, thereby waiving it.The court concluded by making the observation that the underlying Crossman suit was outlandish, but that was of no consequencefor the insurer's defense obligation, which applies even to groundless, false and fraudulent suits. Nonetheless, the court observedthat "the judiciary must act to stem the tide of this abuse."That’s my time. I’m Randy Spencer. Contact Randy Spencer oad.html4/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowVol. 9 - Issue6September 23, 2020Encore: Randy Spencer’s Open MicInsurance For The Summer Road TripSummer is here. And for many that means a road trip. Pack up the station wagon, put the ear-phone wearing, sulking kids in theback seat, and take off to see this great country. And, of course, the best road trip is one that includes stops at roadside curiosities.And the country is full of them – there’s the 55 foot Jolly Green Giant statue in Blue Earth, Minnesota and the 33 foot tall office chairin Anniston, Alabama. And a million more.Most roadside curiosities seem innocent and safe enough. As far as I can tell from the pictures, the colossal Jolly Green Giant andmassive office chair look pretty sturdy.But, of course, as in all things in life, the unpredictable is always lurking around the corner. Thus, the purveyors of these quirkyattractions need to be insured for all possible mishaps. If they are not convinced that this is necessary, consider all of these thingsthat could go awry at some of America’s greatest roadside curiosities:World’s largest ball of twine (Cawker City, Kansas): The world’s largest kitten shows up and eats two visitors from SouthDakota.World’s largest donut (Inglewood, California): A gale force wind causes the world’s largest sprinkle to come loose and injures atourist from New Hampshire.World’s largest chicken wing (1,037 pounds) (Madeira Beach, Florida): The onset of coronary artery disease begins after lookingat it for five minutes.Eight foot tall bronze statue of The Toilet Paper Hero of Hoover Dam (Boulder City, Nevada): Statue blows over and wipes outthe nearby shopping center.World’s largest ketchup bottle (77 feet) (Collinsville, Illinois): Two smart-aleck teens from Seattle disturb wetlands whenattempting to build the world’s largest French fry on the site.World’s largest thermometer (134 feet) (Baker, California): It falls over causing massive mercury contamination of the town’saquifer.Plaque marking the spot in Madison, Wisconsin where, in June 1977, Elvis Presley exited his limo and performed karatemoves to stop two youths from beating another youth: Visitors take videos for Facebook, recreating the King’s karate kicks, andpull hamstrings.World’s largest wooden nickel (San Antonio, Texas): While advertised as 13 feet, visitors arrive and discover that it is, in fact, thesize of an ordinary wooden nickel. Sued for misrepresentation, the Wooden Nickel Museum (really) asserts the Don’t-take-anywooden-nickels defense.World’s largest charcoal grill (90 feet) (Magnolia, Arkansas): Father of five, wearing a “Kiss the Chef” apron, impales himself withthe world’s largest skewer, attempting to grill the world’s largest steak kabob.World’s largest spinach can (Alma, Arkansas) World’s largest e-coli outbreak after an overzealous tour group cracks the can,attempting to lug it to Chester, Illinois, for a photo op with the world’s largest Popeye statue (6 /CurrentIssue-Download.html5/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowWorld’s largest clothes pin (45 feet) (Philadelphia, Pennsylvania): Taxi driver is injured in a crash after several pairs of tatteredboxer shorts break free from the pin and land on his windshield, obstructing his view. Area frat boys later claim that the dryer wasbroken in their dorm.So have fun hitting the road and enjoying the monuments to the imagination and good fun of many people. Send a copy of yourself,standing in front of any of these curiosities, holding this issue of Coverage Opinions, and I will send you a Coverage Opinions coffeemug (next up on the swag to-do list). Believe me, I agree. It’s definitely not worth going out the way for, but if you happen to be in theneighborhood .That’s my time. I’m Randy Spencer. Contact Randy Spencer atRandy.Spencer@coverageopinions.infoVol. 9 - Issue 6September 23, 2020Introducing The “At-Home Version” Of Insurance Key IssuesThe recent 50% off-sale of Insurance Key Issues was a huge success. Lots of people took advantage of it – which I suspect wasdriven by the price and a desire to get a copy for the home-office, if your office office copy is no longer accessible.Given the big demand for an at-home version of Insurance Key Issues, I have decided to introduce a copy table edition! It would bethe first-ever coffee table book that actually gets read. Come on – when was the last time you opened that huge Picasso book? Oreven touched it for that matter – except to move it to make room for snacks during last year’s Super Bowl.Vol. 9 - Issue 6September 23, 2020This Could Be One Grouchy Insurance 6/CurrentIssue-Download.html6/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowRegular readers of CO know that I love interesting names of insurance companies. In fact, it was the subject of the first-ever RandySpencer’s Open Mic Column eight years ago. There are so many good ones to marvel at and wonder why the company chose to callitself what it did. A couple of my favorites: Lightening Rod Mutual Insurance Company and Elephant Auto Insurance Company.I just came across another insurance company that gets a place on my interesting names list. Needless to say, the customer servicerepresentatives could be a little grouchy.Vol. 9 - Issue 6September 23, 2020Randy Spencer Is Keeping The King SafeI am happy to report that the life-size Elvis that lives in my office is staying safe these days. And it is courtesy of a couture RandySpencer mask. So the King of Comedy is keeping the King of Rock and Roll healthy. [OK, King of Comedy might be just a wee-bithyperbolic.][N.B. This Elvis stand-up is from the scene in Viva Las Vegas where he signs the movie’s title track. But the best scene in the movieis the duet with Ann Margret of “The Lady Loves Me.” It is a clever and amusing song and pulled off with aplomb by the two. Check 6/CurrentIssue-Download.html7/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowVol. 9 - Issue 6September 23, 2020Court Finds Russian Interference In The Commercial General Liability Policy’s InsuringAgreementThis federal court’s observation from last week, that reading the CGL Policy’s insuring agreement resembles unpacking a Russiannesting doll, makes sense. I never thought of it this way.“The dispute turns on how the Court unpacks a matryoshka doll of insurance tort terminologies. Continental’s and USF&G’s policiesstate that they cover bodily injuries and property damage if they are caused by an ‘occurrence’ taking place in the ‘policy territory.’The term ‘occurrence’ in both policies is defined as an ‘accident, including losses caused by continuous or repeated exposure to thesame harmful conditions.’ Though the term ‘accident’ is at the heart of whether Defendants’ duty to defend or indemnify terminated, itis undefined in the policy. . . . Black’s Law Dictionary defines ‘accident’ as: ‘An unintended and unforeseen injurious occurrence;something that does not occur in the usual course of events or that could not be reasonably anticipated; any unwanted or harmfulevent occurring suddenly, as a collision, spill, fall or the like, irrespective of cause of blame.” Ludlum v. Liberty Mut. Ins. Co., No. 171243 (W.D. Pa. Sept. 17, 2020).Vol. 9 - Issue 6September 23, urrentIssue-Download.html8/17

9/25/2020Coverage Opinions - Judicial Opinions Today - Impact On Counsel's Opinions TomorrowThis Line From A Coverage Decision Made Me SmileI couldn’t help but smile when I saw this line in the court’s opinion in Landmark Am. Ins. Co. v. Shurwest LLC, No. 19-4743 (D. Ariz.July 23, 2020): “Landmark further alleges that coverage is precluded by Exclusions A, B, D, F, G, I, K, L, M, O, P, S, W[.]”But wait, the insurer also maintained that two more exclusions applied [which seemingly were not identified by letters]: “Owned orOther Affiliated Entity” exclusion and “Violation of Consumer Protection Laws” exclusion.So that makes 15 exclusions allegedly applicable. Needless to say, the insurer thought it had a pretty good case.So did the insurer win, you are no doubt wondering? How could it have lost? But I don’t know. The decision was tedious. It is oneof those where it’s actually hard to tell who won. And I didn’t have the patience to try to figure it out. But I was amused by that line.]Vol. 9 - Issue 6September 23, 2020Novak Djokovic Booted From U.S. Open: Was It For An “Accident?”You may have seen the strange way that Novak Djokovic exited tennis’ United States Open three Sundays ago. The world’s bestplayer was agitated after losing a game. In response, without looking he hit a ball behind him -- striking a line judge in the throat.She was not seriously injured. Nonetheless, Djokovic, the very heavy favorite to win the Grand Slam tournament, was sent packingfrom the Billie Jean King National Tennis Center in Flushing Meadows, New York.Because it involved Djokovic, the story drew worldwide headlines. This one from The New York Times on September6th: “NovakDjokovic Out of U.S. Open After Accidental Hit of Line Judge.” Notably, The Times used the word “accidental” to describe Djokovic’saction. Other news stories referred to the incident in terms of an accident. But was it? The answer may lie in a 150-year-old judicialdecision.Djokovic certainly thought it was an accident, applying the classic test: he didn’t mean it. In arguing against being “defaulted” –tennis’s genteel term for being kicked-out – the Serbian star reportedly told the tournament referee: “Yes, I was angry, I hit the ball, Ihit the line umpire, the facts are very clear, but it wasn’t my intent, I didn’t do it on purpose.” He later turned to Instagram to apologizeand reiterate his state of mind, declaring, “I’m ex

Insurance For The strong Summer /strong Road Trip. Introducing The "At-Home Version" Of Insurance Key Issues. Click here for PDF Archives. Back Issues: strong Volume 2 /strong - strong Issue /strong 20 - October 30, 2013. strong Volume 2 /strong - strong Issue /strong 21 - November 13, 2013: strong Volume 2 /strong - strong Issue /strong 22 - November 27, 2013: strong Volume 2 /strong - strong Issue /strong 23 -

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