Welcome to the 16th annual look back at the year’s ten most significant insurance coverage decisions.
As I always do at the outset of the annual Top 10 Coverage Cases of the Year, here is my description of the selection process (repeated from past years’ editions). The process is highly subjective, not in the least bit scientific, and is in no way democratic. But just because the selection process has no accountability or checks and balances whatsoever does not mean that it wants for deliberativeness. To the contrary, the process 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.
[If you think I missed a case, tell me. I’ll be the first to admit that I goofed. I did so two years ago and took myself to task for excluding the New York high court’s decision in K2-II, despite even providing an explanation why I initially excluded it. In addition, it is impossible to be aware of every coverage case decided nationally.]
The selection process operates 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 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 the most important 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, this year the Washington Supreme Court, in Kroeber v. Geico, 366 P.3d 1237 (Wash. 2016), addressed the interpretation of “use of an auto.” This is a hugely important decision since “use of an auto” arises in numerous claim scenarios – auto policy liability and UM/UIM coverage and general liability and homeowner’s policy exclusions.
The significance of Kroeber, for lawyers practicing in Washington, cannot be overstated. However, the decision was not considered for inclusion in the annual Top 10 Best in Show. There is simply no shortage of case law nationally addressing “use of an auto.” Thus, the chances of a court, outside of Washington, turning to Kroeber for guidance when confronted with a “use of an auto” case are slim.
In addition, cases that meet the selection criteria are usually not included when the decision is appealed. In such situation, the ultimate significance of the case is up on the air.
Best wishes for a healthy and prosperous 2017 and may any resolutions that you make last at least until February.
The year’s ten most significant insurance coverage decisions are listed in the order that they were decided.