For the past two weeks or so talk in the sports world has been dominated by one story – Deflate-gate. For the six people in America who do not know what this is, the New England Patriots were accused of using footballs, during the 2015 AFC Championship Game, that contained less air pressure than mandated by the National Football League rules. A softer football may be easier to grip and throw. The Patriots and its quarterback, Tom Brady, denied any wrongdoing.

Deflate-gate dialogue began on May 6th following the release of the “Investigative Report Concerning Footballs Used During The AFC Championship Game On January 18, 2015.” That’s the 243 page report, prepared by the NFL’s lawyer, Ted Wells, of his investigation to get to the bottom on the Deflate-gate story.

This report, now referred to as the Wells Report, reached, among others, the following conclusions: (1) It is more probable than not that Patriots locker room personnel – Jim McNally and John Jastremski -- participated in a deliberate effort to release air from Patriots game balls after the balls were tested by game officials; and (2) It is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of the locker room personnel involving the release of air from Patriots game balls.

Then, just when the Wells Report was retreating from the front page, on May 11th the NFL announced the imposition of harsh penalties on the Patriots and Brady for their conduct. Brady was suspended for the first four games of next season without pay. The Patriots must forfeit their first round draft pick next year and a fourth round pick in 2017. The Pats were also fined $1 million. Of course, they’ll save a couple of million on Brady’s salary, so the team actually comes out ahead on the deal. How did the NFL not see that? In any event, with all this, Deflate-gate was back on the front page.

But despite the incredible noise that Deflate-gate has generated, Tom Brady has been virtually mum on the conclusions of the Wells Report and the sanctions imposed by the NFL. Until now. Brady has chosen to break his silence -- with an exclusive sit down interview with Randy Spencer.

Brady and I are seated at a back table in a small French bistro in Boston’s Beacon Hill neighborhood. It’s too late for lunch and too early for dinner so the place is empty. A young woman approaches – probably a college student. She shows no sign of recognizing the city’s most famous resident. Brady asks her what brands of water she has. She rattles off a few names. Unsatisfied with his choices Brady settles on an iced coffee. I was planning on ordering a Diet Coke. But that now seems out of the question so I also order an iced coffee – even though I really dislike it.

Randy Spencer: Tom, thank you for choosing Coverage Opinions and the Randy Spencer’s Open Mic column to discuss the Deflate-gate situation. I’m sure that media outlets have been relentless in pursuing you for an interview.

Tom Brady: No problem Andy.

RS: That’s Randy.

TB: Right. Yeah, you can’t imagine. ESPN’s drool could end the California drought. And that Matt Louder guy hasn’t stopped calling.

RS: That’s Lauer.

TB: Whatever. I’ve never heard of him. They tell me his show starts at 7 in the morning. Is anyone up that early? [It is clear from Brady’s tone that his question is a serious one.]

RS: Tom, let’s get right to it. You’ve been criticized for not turning over your cell phone to the NFL’s investigators. And the NFL stated that that played a part in its decision to impose a four game suspension. If you had nothing to do with the deflation of footballs, why didn’t you just turn over your phone?

TB: Look man, I’m Tom Brady. One of the greatest QBs ever to lace ‘em up. I’m cooler than the Fonz on his best day. I’m cooler than that Dos Equis guy. I’m so cool I can get away with endorsing Uggs. Plus I got movie star good looks. I’m the Super Bowl MVP. And I’m married to Gisele Bündchen, a super model. And not just any super model – a Brazilian one. She’s even got two dots over one of the letters in her name.

RS: You’re all those things Tom.

TB: Yeah, well, that’s exactly why I couldn’t turn over my cell phone. I couldn’t let people see how many emojis I use when sending text messages. [Brady holds out his phone to show it to me.] You see those two little sunny side up eggs in frying pans? I sent Gisele a text this morning with those pictures, and just from that, she knew that I wanted two eggs for breakfast. And if I’d wanted three eggs I would have just sent her three of those little frying pans. Man, it’s amazing. And if I wanted toast and coffee....

RS: Wow! I never figured Tom Brady as an emoji guy.

TB: I know. Nobody would. You hear emojis and you think Tim Tebow. Not Tom Brady. That’s why I needed to keep my cell out of Wells’s hands.

RS: But that decision cost you four games without pay.

TB: Totally worth it.

RS: Yeah, I can see that. Speaking of the four game suspension, what do you plan on doing to keep busy during those weeks?

TB: [Brady lets out a sigh of exasperation] Don’t ask. Gisele’s got me painting the powder room and cleaning out the garage. She says it’s time for me to throw out my Tom Brady poster collection. If I’m lucky I’ll pull a hammie the first week and get Gisele off my back.

RS: Let’s talk about the Wells Report. It’s the size of a book. Did you read all 243 pages?

TB: I didn’t know they made 243 page books.

RS: The Wells Report concluded that it is more probable than not that you were at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls. Is that true?

TB: Yeah, that’s what the report says.

RS: No, I mean, is it true that you were generally aware of what McNally and Jastremski were doing?

TB: No way. “Generally aware.” “More probable than not.” Who talks like that? Not normal people. If they had the goods on me they’d say so in English. We’re talking about deflating footballs with tons of people around. How hard can that be to prove? This isn’t exactly who killed JFK?

RS: But what do you say about the scientific experiments that concluded that the psi measurements of the Patriots game balls at halftime cannot be entirely explained by the Ideal Gas Law?

TB: Go ask Marvin Greenbaum.

RS: Who’s Marvin Greenbaum?

TB: He’s the guy whose paper I copied off of in high school chemistry.

[The waitress approaches with the drinks. Someone has now tipped her off to who’s sitting at the table. Aren’t you Randy Spencer?, she asks. I acknowledge that I am. She’s asks if we can take a selfie. Of course I oblige.]

RS: Tom, how do you explain the mountain of circumstantial evidence laid out in the Wells Report that McNally and Jastremski were involved in deflating game balls and you were generally aware of it.

TB: Look, the Patriots put together a website that responds to all the conclusions in the Wells Report. Check it out. It’s all in there. It says [Brady makes double quotation mark symbols with his fingers]: “There is no evidence that Tom Brady preferred footballs that were lower than 12.5 psi and no evidence anyone even thought that he did.” I knew nothing. That’s how normal people speak. That’s not weasel lawyer language.

RS: But some of the stuff on that Patriots website is hard to believe. It says that the term “deflator” used between McNally and Jastremski was a reference to McNally wanting to lose weight. Do you really believe that?

TB: If that’s what the Pats’s lawyers say then I believe it. If Bob [Kraft – Patriots owner] tells the lawyers to write a report saying that the earth is flat, then the earth is flat. We have really good lawyers.

RS: The Wells Report says that McNally took the game balls into the bathroom for a minute and forty seconds and that’s when he supposedly deflated them. The said it can be done in that amount of time.

TB: I know. But McNally says he was in there peeing. And that can be done in a minute forty. And if that’s what he says I believe him. Jimmy’s just not gettin’ a fair shake.

RS: You’ve appealed your suspension and it will be heard by Commissioner Roger Goodell. Are you OK with that?

TB: Yeah, that’s cool. Rog and I get along fine and I think he’ll be fair. Besides, I was his wingman one night when we went out during Super Bowl week. Trust me. He owes me.

[Brady’s cell phone rings. He answers it. “Right.” “Ok.” “Yes.” “I’ll get them.” He hangs up and looks at me. “Gisele. She wants me to bring home a quart of milk and a Mercedes.”]

RS: Why do you think that the public is so fascinated by Deflate-gate?

TB: Because it’s about Tom Brady, man. Tony Romo could throw footballs as flat as Frisbees and it would get less coverage on the sports page than a cricket match.

RS: You must know that people are less likely to believe the Patriots’s story because of Spygate.

TB: Look, that was all Belichick’s thing. I have no idea what he was doing. What a dumb idea. I didn’t need to be Dick Tracy to beat the Jets.

RS: What’s it like being coached by Bill Belichick?

TB: Don’t get me started. The NFL is crawling all over me about some slightly deflated footballs and Belichick is the one they should be investigating and writing reports about. Do you know why he cuts the sleeves off his hoodies? To sell them on Ebay. Hey Rog, you think that’s in the best interest of the game?

RS: It was reported that you went to the Kentucky Derby a few weeks back and then jetted to Vegas for the Pacquiao—Mayweather fight later that night. How was the fight?

TB: What a bust! You wanna talk about real deflation?

RS: Tom, do you think that Deflate-gate will hurt your legacy?

TB: The only thing about Deflate-gate that might hurt my legacy is that I did an interview about it with a stand-up comic who writes a column for an insurance law newsletter. [Brady smiles to let me know he’s kidding. At least I think he’s kidding.]

RS: Tom, thanks for speaking with me. I appreciate it.

TB: No problem, Andy.

[Brady pulls out his cell phone and sends a quick text. He holds it out for me to see. It’s a picture of two hour glasses.]

I just asked Gisele to make me two soft boiled eggs.


That’s my time. I’m Randy Spencer. Contact Randy Spencer at

Randy.Spencer@coverageopinions.info

Vol. 4, Iss. 5 May 20, 2015 I’m Not Lion: Court Holds That Cat Urine Not Precluded By Pollution Exclusion Case More Enjoyable Than Cats

Pollution Exclusion cases have become so abundant, and similar, that I’ve taken to limiting my discussion of them in Coverage Opinions to the ones that are truly unique. (See CO, __ (trust me)). Mellin v. Northern Security Insurance Co., No 2014-020 (N.H. Apr. 24, 2015) is in the unique category. The New Hampshire court addressed whether cat urine is a pollutant. This was a national case of first impression. That explains why I had no Meeeemory of ever seeing it.

The issue in Mellin arises under the property section of a homeowner’s policy. But the case and analysis is just as applicable to a dispute under a liability policy. [Not that that matters since this is the first, and probably last, time that the issue will arise.]

At issue was coverage for homeowners who sustained damage to their condominium on account of the smell of cat urine emanating from a downstairs neighbor’s condo. The affected homeowners claimed that they could not rent the condo (a tenant had in fact moved out) and they ultimately sold it for significantly less than it was worth (presumably to cat owners or someone with a habitually stuffed nose).

The homeowners sought coverage for their damages and the case made its way to the New Hampshire Supreme Court. There were three principal issues before the court. Did the claim satisfy the policy’s requirement that the unit “experienced a direct physical loss” as a result of the cat urine odor? Did the pollution exclusion bar recovery? Was the cat urine odor caused by any of the enumerated perils against which the policy insured? I’ll skip this last issue.

The court held that “physical loss may include not only tangible changes to the insured property, but also changes that are perceived by the sense of smell and that exist in the absence of structural damage. These changes, however, must be distinct and demonstrable. Evidence that a change rendered the insured property temporarily or permanently unusable or uninhabitable may support a finding that the loss was a physical loss to the insured property.” [This general issue, whether odor can qualify as physical loss, arises with some regularity.]

Turning to the pollution exclusion, following a lengthy analysis, the court held that it did not apply. In general, the court interpreted the pollution exclusion narrowly, despite how broadly it may read on its face.

The court stated: “Applying these definitions in a ‘purely literal interpretation ... surely stretch[es] the intended meaning of the policy exclusion,’ ‘contrary to any reasonable policyholder’s expectations.’ For example, ‘[t]aken at face value, the policy’s definition of a pollutant is broad enough that it could be read to include items such as soap, shampoo, rubbing alcohol, and bleach insofar as these items are capable of reasonably being classified as contaminants or irritants.’” (citations omitted).

In general, the New Hampshire Supreme Court limited the pollution exclusion’s applicability to traditional environmental pollution: “Although an insured may have reasonably understood that the pollution exclusion clause precluded coverage for damages resulting from odors emanating from large-scale farms, waste-processing facilities, or other industrial settings, these circumstances are distinguishable from those before us, which involve an odor created in a private residence by common domestic animals. See Western Alliance Ins. Co., 686 N.E.2d at 999 (recognizing that ‘an insured could reasonably have understood the provision at issue to exclude coverage for injury caused by certain forms of industrial pollution, but not coverage for injury allegedly caused by the presence of leaded materials in a private residence’ (quotation omitted)).”

But, like Morris the Cat, the court was finicky and the decision was not unanimous. The opinion includes a lengthy dissent: “Because the term ‘pollutant” is unambiguously defined within the policy in clear language, I would not look beyond the policy language in determining that the plaintiffs’ claims are precluded by the pollution exclusion clause. This approach is in keeping with the rulings of many courts, which likewise interpret pollution exclusion clauses by looking to the plain meaning of the terms as defined in the text of such clauses.” The dissenting Justice also had this to say on the way out: “I share the view of the Supreme Court of Minnesota that if the pollution exclusion clause is regarded as overly broad, the remedy must be found in the market place or through legislative action rather than through creative judicial construction of clear policy language.”