Don’t Call an Argument “Ridiculous” Unless You’re Right; A Pedestrian that Was Struck by a Vehicle Deemed an “Occupant”

Although not a Florida case, I found this case from the Sixth Circuit very interesting for two reasons.  First, the claimant made a very creative argument in order to be entitled to first-party coverage.  Second, the case highlights the fact that you never want to call someone else’s argument “ridiculous” because you might draw the ire of the court.

In Bennett v. State Farm (6th Circuit 2013), a pedestrian was struck by a vehicle covered by State Farm auto insurance.  The parties stipulated that after the pedestrian was struck, she landed on the hood of the car where she sustained further injuries.  In making a very creative argument, the issue came down to whether the pedestrian was an “occupant” of the vehicle—as that term is defined by State Farm’s policy—at the time she was on the vehicle’s hood.  The policy defined “occupying” as “in, on, entering or alighting from.”

Counsel for State Farm called the claimant’s unique argument “ridiculous.”  The U.S. Court of Appeals for the Sixth Circuit did not agree and, further, did not appreciate counsel’s uncivil tone.  Specifically, the court held that the definition of “occupying” clearly covered the pedestrian that was “on” the car’s hood when she was injured.   It stated:

Here, as a matter of ordinary English usage, one might be skeptical that Bennett was an “occupant” of the Fusion during the time she was on its hood. Occupants are normally inside vehicles, not on them. But the parties to a contract can define its terms as they wish; and State Farm has done so here. Its policy for the Fusion defines “occupying” as “in, on, entering or alighting from.” And the parties have stipulated that Bennett was on the Fusion—specifically, on its hood—and that she “suffered further bodily injuries” while she was there.

Further, the court chastised State Farm’s attorney for calling the argument ridiculous because, simply, she was wrong.

There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

Boom.  The opinion can be viewed in its entirety here.

Insurance Company and Insurance Agent Were Deemed Same Entity Regarding Notice Requirements

In Siguenza v. Citizens Prop. Ins. Corp. (Fla. 3d DCA 2013), the insurer, Citizens, denied a claim based on late notice and insured sued for breach of contract, testifying that she gave prompt notice directly to insurance company.

Citizens contradicted testimony through affidavit, prompting insured to file affidavit clarifying that she gave prompt notice to insurance agent. The court granted summary judgment in insurer’s favor, finding the insured’s subsequent affidavit in contradiction with her testimony. Appellate court reversed, ruling a material question of fact existed regarding timeliness of loss since insured considered the insurance company and the insurance agent to be the same entity and since the policy provided that prompt notice could be given to either one.

The “your product” Exclusion Applies if the Product is not Fundamentally Changed

Recently, in Liberty Mut. Fire Ins. Co. v. MI Windows & Doors, Inc. (Fla. 2d DCA 2013), the Court relied on a “your product” exclusion of a CGL policy to partially reverse summary judgment that was entered in favor of insured window and door manufacturer and against insurer.  The court ruled that the exclusion applied since the fact that a third party added transoms to the insured’s sliding glass doors did not fundamentally change the nature and function of the doors, thus the doors remained the insured’s product.