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Thursday, 11 July 2019 20:46

5th Circuit Calls Insurance Lawyer's Legal Argument 'Implausible'

Written by Angela Morris, PropertyCasualty360.com
“Only an insurance company could come up with the policy interpretation advanced here,” wrote Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit in an opinion issued on July 2. “Only an insurance company could come up with the policy interpretation advanced here,” wrote Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit in an opinion issued on July 2. Photo Spirit / Shutterstock.com

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It’s got to sting a little for an insurance lawyer when an appellate ruling begins like this.

 

“Only an insurance company could come up with the policy interpretation advanced here,” wrote Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit in an opinion issued on July 2.

 

Ho explained in the Frederking v. Cincinnati Insurance Co. ruling that “Cincinnati Insurance Company theorizes that its automobile policies do not cover injuries caused by drunk driving collisions, because such collisions are not ‘accidents.’ Its logic is this: intentional acts are not accidents, and drunk drivers make the intentional choice to drink and drive.”

 

If the Fifth Circuit accepted Cincinnati’s interpretation, it would mean that car crashes caused by drivers who were texting, eating or applying makeup wouldn’t qualify as accidents, and insurers could refuse to cover them, Ho wrote.

 

“This is implausible on its face,” the court ruled. “It would defeat the widely held expectations of the countless insureds who purchase automobile insurance precisely to protect against these kinds of ‘accidents.’”

 

The zinger of an opening line in Ho’s opinion prompted humorous reactions from a gaggle of appellate attorneys on Twitter.

 

Cincinnati Insurance’s attorney, George L. Lankford, a member in Fanning Harper Martinson Kutchin & Brandt in Dallas, didn’t immediately return a call or email seeking comment.

 

But Kyler Schnitzer, who represented appellant Richard Brett Frederking, said that he’s pleased with the ruling but not surprised, because the opinion is “consistent with the tenor of oral arguments.”

 

Schnitzer is glad the Fifth Circuit understood that Cincinnati’s position was novel. If the ruling went the other way and sided with the insurer, it could have been “very sweeping,” said Schnitzer, senior briefing attorney at Jim Adler & Associates in Houston.

 

“The definition of accident applies to both the duty to indemnify and the duty to defend. It could have put us in a very expansive ruling if it had been adopted in Texas,” he explained, noting that an opposite ruling would have been bad for personal injury plaintiffs and good for insurance companies.

 

The opinion explained the background of the case.


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