Massachusetts Appeal Court holds that excess insurer is not required to pay until primary insurer becomes legally obligated to pay primary limit

In 2005 Ridgewood purchased a $15 million primary insurance policy from The Hartford and a $10 million excess insurance policy from Liberty Mutual.


The plaintiffs filed suit against Ridgewood, alleging breach of contractual and fiduciary duties.  The plaintiffs and Ridgewood settled the case for a stipulated judgment of $20.5 million.  The settlement agreement provided that The Hartford and Ridgewood would pay jointly to the plaintiffs $11 million in exchange for the plaintiffs' promise not to sue Ridgewood for the remaining amount.  The Hartford paid $7 million to the settlement and $2.5 million in attorney's fees; Ridgewood paid $4 million to the settlement.


Ridgewood assigned all of its rights, claims and interest in the Liberty Mutual policy to the plaintiffs. 


Liberty Mutual refused to pay any part of the claim, asserting that its policy provides coverage only when the primary insurer has paid the full amount of the underlying limit of liability as loss, and that that condition had not been met. 


Under the Liberty Mutual policy there was coverage "when the underlying limit of liability is exhausted by reason of the insurers of the underlying policies paying or being held liable to pay in legal currency the full amount of the underlying limit of liability as loss."  "Loss" was defined as "sums which the insured parties are legally obligated to pay solely as a result of any claim insured by this policy, including claims expenses, compensatory damages, settlement amounts, and legal fees and costs awarded  pursuant to judgments." 


In Anile v. Liberty Mutual Insurance Company, 2015 WL 4937671 (Mass. App. Ct.) (unpublished), the Massachusetts Appeals Court held that under New Jersey law the language of the Liberty Mutual policy unambiguously provided that excess coverage will be allowed only in the event that The Hartford had actually paid, or was legally obligated to pay, the entirely of the $15 million primary coverage limit. 

New Catastrophic Impairment Definition To Be Introduced June 2016

The Ontario government has finally amended the SABS definition of catastrophic impairment.

The government's 2010 auto insurance reforms included recommendations most seriously injured accident victims. The government directed FSCO to consult with the medical community to amend the definition of catastrophic impairment as set out in the Statutory Accident Benefits Schedule. 

In 2010 FSCO announced the appointment of Dr. Pierre Côté as Chair of the Catastrophic Impairment Expert Panel.  The Panel submitted it's recommendations to the FSCO Superintendent in the spring of 2011.  In December 2011, the Superintendent submitted his report to the government. 

The new definition is effective for accidents on and after June 1, 2016.  The revised definition also provides for an automatic designation of catastrophic impairment for children with traumatic brain injuries in specified circumstances. 

Below is a chart that compares the current SABS definition, the Superintendent's recommended definition and the new SABS definition that will be introduced next year.

Current SABS	Superintendent’s 2011 Report	2016 SABS
Paraplegia or quadriplegia;	paraplegia or tetraplegia that meets the following criteria i  and either ii or iii: ii. The neurological recovery is such that the permanent ASIA Grade can be determined with reasonable medical certainty according to the ASIA  and iii. The permanent ASIA Grade is A, B, or C or, iv. The permanent ASIA Grade is or will be D provided that the insured has a permanent inability to walk independently as defined by scores 0–5 on the Spinal Cord Independence Measure item 12 and/or requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage the residual neuro-urological impairment.	Paraplegia or tetraplegia that meets the following criteria: i. The insured person’s neurological recovery is such that the person’s permanent grade on the ASIA Impairment Scale can be determined. ii. The insured person’s permanent grade on the ASIA Impairment Scale is or will be, A. A, B or C, or B. D, and 1. the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12 and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5, 2. the insured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization in order to manage a residual neuro-urological impairment, or 3. the insured person has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion or an implanted device.
The amputation of an arm or leg or another impairment causing the total and permanent loss of use of an arm or a leg;	Severe impairment of ambulatory mobility, as determined in accordance with the following criteria: i. Trans-tibial or higher amputation of one limb, or ii. Severe and permanent alteration of prior structure and function involving one or both lower limbs as a result of which it can be reasonably determined that the Insured Person has or will have a permanent inability to walk independently and instead requires at least bilateral ambulatory assistive devices [mobility impairment equivalent to that defined by scores 0–5 on the Spinal Cord Independence Measure item 12, ability to walk <10 m).	Severe impairment of ambulatory mobility or use of an arm, or amputation that meets the following criteria: i. Trans-tibial or higher amputation of a leg. ii. Amputation of an arm or another impairment causing the total and permanent loss of use of an arm. iii. Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure, Version III, item 12, and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.
Total loss of vision in both eyes	Legal blindness in both eyes due to structural damage to the visual system. Non-organic visual loss (hysterical blindness) is excluded from this definition.	Loss of vision of both eyes that meets the following criteria: i. Even with the use of corrective lenses or medication, A. visual acuity in both eyes is 20/200 (6/60) or less as measured by the Snellen Chart or an equivalent chart, or B. the greatest diameter of the field of vision in both eyes is 20 degrees or less. ii. The loss of vision is not attributable to non-organic causes.
Brain impairment that results in, (i) a score of 9 or less on the Glasgow Coma Scale, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or (ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, according to a test administered more than six months after the accident by a person trained for that purpose;	Traumatic Brain Injury in Adults (18 years of age or older): ii. Catastrophic impairment, based upon an evaluation that has been in accordance with published guidelines for a structured GOS-E assessment to be: a) Vegetative (VS) after 1 months or b) Severe Disability Upper (SD+) or Severe Disability Lower (SD -) after 6 months, or Moderate Disability Lower (MD-) after one year due to documented brain impairment, provided that the determination has been preceded by a period of in-patient neurological rehabilitation in a recognized rehabilitation center.	If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury that meets the following criteria: i. The injury shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly. ii. When assessed in accordance with the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale, the injury results in a rating of, A. Vegetative State (VS or VS*), one month or more after the accident, B. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or C. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.
An impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person;	A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition 1993, (GEPI-4), results in a physical impairment rating of 55 per cent whole person impairment (WPI). i. Unless covered by specific rating guidelines within relevant Sections of Chapters 3-13 of GEPI-4, all impairments relatable to non-psychiatric symptoms and syndromes (e.g. functional somatic syndromes, chronic pain syndromes, chronic fatigue syndromes, fibromyalgia Syndrome, etc.) that arise from the accident are to be understood to have been incorporated into the weighting of the GEPI-4 physical impairment ratings set out in Chapters 3 – 13. ii. With the exception of traumatic brain injury impairments, mental and/or behavioural impairments are excluded from the rating of physical impairments. iii. Definition 2(e), including subsections I and II, cannot be used for a determination of catastrophic impairment until two years after the accident, unless at least three months after the accident, there is a traumatic physical impairment rating of at least 55% WPI and there is no reasonable expectation of improvement to less than 55% WPI.	A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more physical impairment of the whole person.
An impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorde	The post-traumatic psychiatric impairment(s) must arise as a direct result of one or more of the following disorders, when diagnosed in accordance with DSM IV TR criteria: (a) Major Depressive Disorder, (b) Post Traumatic Stress Disorder, (c) a Psychotic Disorder, or (d) such other disorder(s) as may be published within a Government Guideline. ii. Impairments due to pain are excluded other than with respect to the extent to which they prolong or contribute to the duration or severity of the psychiatric disorders which may be considered under Criterion (i). iii. Any impairment or impairments arising from traumatic brain injury must be evaluated using Section 2(d) or 2(e) rather than this Section. iv. Severe impairment(s) are consistent with a Global Assessment of Function (GAF) score of 40 or less, after exclusion of all physical and environmental limitations. v. For the purposes of determining whether the impairment is sufficiently severe as to be consistent to Criterion (iv) - a GAF score of 40 or less - at minimum there must be demonstrable and persuasive evidence that the impairment(s) very seriously compromise independence and psychosocial functioning, such that the Insured Person clearly requires substantial mental health care and support services. In determining the demonstrability and persuasiveness of the evidence, the following generally recognized indicia are relevant: a) Institutionalization; Repeated hospitalizations, where the goal and duration are directly related to the provision of treatment of severe psychiatric impairment; c) Appropriate interventions and/or psychopharmacological medications such as: ECT, mood stabilizer medication, neuroleptic medications and/or such other medications that are primarily indicated for the treatment of severe psychiatric disorders; d) Determination of loss of competence to manage finances and property, or Treatment Decisions, or for the care of dependents; e) Monitoring through scheduled in-person psychiatric follow-up reviews at a frequency equivalent to at least once per month. f) Regular and frequent supervision and direction by community-based mental health services, using community funded mental health professionals to ensure proper hygiene, nutrition, compliance with prescribed medication and/or other forms of psychiatric therapeutic interventions, and safety for self or others.	An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. A mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.
if an insured person is under the age of 16 years at the time of the accident and none of the Glasgow Coma Scale, the Glasgow Outcome Scale or the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, referred to in clause (2) (d), (e) or (f) can be applied by reason of the age of the insured person.	Paediatric Traumatic Brain Injury (prior to age 18) i. A child who sustains a traumatic brain injury is automatically deemed to have sustained a catastrophic impairment provided that either one of the following criteria (a or b) is met on the basis of traumatic brain injury sustained in the accident in question: a) In-patient admission to a Level I trauma centre with positive findings on CT/MRI scan indicating intracranial pathology that is the result of the accident, including but not limited to intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift, or pneumocephaly; or b) In-patient admission to a publically funded rehabilitation; Paediatric catastrophic impairment on the basis of traumatic brain injury is any one of the following criteria: ii. At any time after the first 1 months, the child’s level of neurological function does not exceed the KOSCHI Category of Vegetative. iii. At any time after the first 6 months, the child’s level of function does not exceed the KOSCHI Category of Severe. (2) May be fully conscious and able to communicate but not yet able to carry out any self care activities such as feeding. (3) Severe Impairment implies a continuing high level of dependency, but the child can assist in daily activities; for example, can feed self or walk with assistance or help to place items of clothing. iv. At any time after the first 9 months, the child’s level of function remains seriously altered such that the child is for the most part not age appropriately independent and requires supervision/actual help for physical, cognitive and/or behavioural impairments for the majority of his/her waking day.	If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria: i. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly. ii. The insured person is accepted for admission, on an in-patient basis, to a program of neurological rehabilitation in a paediatric rehabilitation facility that is a member of the Ontario Association of Children’s Rehabilitation Services. iii. One month or more after the accident, the insured person’s level of neurological function does not exceed category 2 (Vegetative) on the King’s Outcome Scale for Childhood Head Injury. iv. Six months or more after the accident, the insured person’s level of neurological function does not exceed category 3 (Severe disability) on the King’s Outcome Scale for Childhood Head Injury. v. Nine months or more after the accident, the insured person’s level of function remains seriously impaired such that the insured person is not age-appropriately independent and requires in-person supervision or assistance for physical, cognitive or behavioural impairments for the majority of the insured person’s waking day.

Massachusetts Appeals Court holds that attorney who conducted negligent title search may be liable to title insurer for breach of contract but not malpractice

Fidelity National Title Insurance Company of New York appointed George Crowley as its agent to issue title insurance.  The agreement provided that if Crowley were grossly negligent by issuing policies for properties with existing liens and encumbrances he would indemnify Fidelity for its loss, including attorney's fees. 


Fidelity alleged that in five instances Crowley issued title insurance in its name despite the existence of title defects, causing Fidelity to incur a loss. 


In Fidelity Nat'l Title Ins. Co. of N.Y. v. Crowley, 2015 WL 4887598 (Mass. App. Ct.) (unpublished), the Massachusetts Appeals Court  held that the contract statute of limitations of six years applied, rather than the legal malpractice/tort statute of limitations of three years.  Although the mortgage lenders would have malpractice claims against Crowley, there was no attorney-client relationship between Fidelity and Crowley.  The agency agreement did not required the issuing party to be an attorney.  (I need to think this one through.  I'm not a real estate attorney so I'm probably missing some subtleties in the difference between Crowley doing a title search for Fidelity and Crowley doing a title search for a mortgage lender.) 


In this case the word "grossly" was typed above the word "negligent," so that unlike other title insurance agency contracts I have seen Crowley can only be liable if he was grossly negligent.  The effect of the contracts without the word "grossly" inserted is that the cost of indemnifying losses from clouds on a titles is effectively transferred from the title insurer to the real estate attorney's malpractice insurer.  (Although here, where the court has held that the suit is not one for malpractice, perhaps there is no coverage under the malpractice policy.  I  have no idea.) 

SJC seeks amicus briefs on whether innocent coinsured doctrine should be revisited and on definition of insured allowed by Mass. Gen. Laws ch. 175 s. 99

In May, the Massachusetts Superior Court granted summary judgment to Jonathan and Tammy Hall in a declaratory judgment action against Preferred Mutual Insurance Company.  Hall v. Preferred Mut. Ins. Co., 2015 WL 4511760 (Mass. Super.). 




The Halls owned residential property insured by Preferred Mutual.  Their son Bryan intentionally started a fire that caused significant damage to the real and personal property of the residents in the home.  The Halls did not know initially that Bryan had started the fire.




When it learned that Bryan had started the fire Preferred Mutual denied the claim of Jonathan and Tammy. 




The policy defined the term "insured" to include "your relatives if residents of your household."  It was undisputed that Bryan fell within this definition of insured. 




The policy excluded coverage for fire damage where the "loss results from any act committed by or at the direction of any insured."  The plain language of the policy therefore excluded the loss.


However, insurers may not limit coverage for fire damage beyond what is permitted by statute to make up a standard fire insurance policy.  Mass. Gen. Laws ch. 175 §99.    Mass Gen. Laws ch. 175 §99 (Twelfth) allows policies to exclude coverage if the insured neglects to use all reasonable means to save and preserve the property at and after a loss, or if the hazard is increased by any means within the control or knowledge of the insured.  Under the statute a policy shall be void if before or after a loss the insured has willfully concealed or misrepresented any material fact or circumstance concerning the insurance or the subject thereof or the interest of the insured therein, or in a case of any fraud or false swearing by the insured resulting thereto. 




The statutory language thus precluded coverage if Bryan fell within the definition of insured.  The statute does not provide a definition of insured. 




Preferred Mutual argued that under the statute "the insured" refers to all people entitled to coverage.  Its argument relied on its assertion that insurers may deny coverage to an innocent co-insured in cases where the intentional misconduct of an insured causes damage to property covered by an insurance policy. 




The Superior Court held that the innocent coinsured doctrine may not apply unless the guilty coinsured holds a joint, non-severable and co-extensive interest in the insured property.  It also held that the legislature did not intend in Mass. Gen. Laws ch. 175 §99 that Bryan come within the definition of the insured in the relevant policy provisions. 




The SJC has accepted the case for direct appellate review.  It now requests amicus briefs on the issues of whether the policy defined insured beyond what is permitted by the statute, and whether the innocent coinsured doctrine should be revisited.

Insurance News - Monday, August 31, 2015:

Here are the leading auto insurance headlines from ONTARIO AUTO INSURANCE TOPICS ON TWITTER for Monday, August 31, 2015:

• New JOLT monitoring phone app offers protection against insurance fraud.
• The coming age of self-driving cars: What will auto insurers do when there are no drivers left to insure?
• Uber and the University of Arizona partner to develop mapping technology for self-driving cars.
• A new survey from Kanetix.ca shows Canadians' bad driving habits haven't changed much in three years. We're not so polite.
• An accident runner, a chiropractor, and the push to curb no-fault insurance in Michigan.
• UberX drivers may find themselves without insurance in the event of an accident.

Massachusetts Appeals Court holds that ch. 93A s. 11 claim can include personal injuries and that insurer did not violate s. 11 when it did not settle verdict that was appealed

Associated Building Wreckers contracted to demolish an abandoned building adjacent to property owned by Gary Silva.  Silva operated an auto body and repair business on his property. 


During the demolition the abandoned building collapsed onto Silva's property


Silva sued Steadfast for damages to his business and property and for personal injuries.  After trial the judge awarded Silva $366,607.36 as damages on a breach of contract claim and $10,000 for personal property damage. 


The trial judge ruled in favor of Associated on Silva's other claims.


Silva appealed the rulings on some of the claims and on the amount of damages awarded.  The appeal was unsuccessful and the judgment was affirmed.


Associated then filed a motion for relief from judgment in the underlying action on the ground that the judgment failed to apply the setoff as provided by the judge in his original findings.  The motion was allowed, with the judge finding that Silva had already received insurance payments in the amount of $186,464 which would offset the award.  Judgment entered in the amount of $342,201.53, which included interest and some costs.  Steadfast paid the judgment three weeks later.


Silva sued Associated's insurer, Steadfast Insurance Company, asserting that it had violated Mass. Gen. Laws chs. 93A and 176D by failing to effectuate a prompt, fair, and equitable settlement after the original judgment in Silva's favor.


A trial court judge granted summary judgment to Steadfast, holding that  Steadfast had not violated ch. 176D because Silva rendered uncertain the amount of total liability by appealing the underlying judgment.


On appeal, in Silva v. Steadfast Ins. Co., __ N.E.3d __, 2015 WL 4661296, the Massachusetts Appeals Court first addressed whether the claim came under §9 or §11 of ch. 93A.  Section 9 claims are filed by consumers against businesses.  In most circumstances a demand letter must be sent 30 days before a §9 claim can be filed.  A violation of ch. 176D is automatically a violation of §9.


Section 11 claims are filed by businesses against businesses.  No demand letter is required.  A violation of ch. 176D is not an automatic violation of §11.


Steadfast argued that the claim came under §9 because it included a claim for both personal and business injuries.  The Massachusetts Appeals Court rejected that argument, holding that current case law does not prevent Silva, as a matter of law, from bringing suit under §11 simply because he pursued damages relating to both personal and business injuries.  Moreover, Silva, Associated, and Steadfast were all engaged in trade or commerce during the claims, incidents and transactions at issue.  Silva's business was damaged by Associated's conduct of business.  Assocaited's business was insured by Steadfast's business insurance.


The court also held that third-party claimants can bring suit under both §9 and §11. 


The court next examined whether Steadfast had failed to effectuate prompt, fair and equitable settlement of claims in which liability had become reasonably clear.  Silva's argument was based solely on Steadfast's failure to settle the claim after the original underlying verdict. 


The court held that when Silva appealed the verdict, he "open[ed] up both the scope of liability and the amount of damages."  However, because Associated did not cross-appeal, some amount of liability and damages had, at that point, been established. 


The court held that Steadfast did not as a matter of law violate ch. 93A §11.  It drew that conclusion because the amount of damages was not reasonably clear once Silva chose to appeal.  In addition, after Silva lost the appeal the amount of damages required multiple adjustments in the trial court. 

First Circuit holds that exclusion for injury to contractors applies only to injury to insured's contractors

Benchmark contracted to renovate a house.  The homeowners had hired an architect named Thomas Huth.  Huth hired Sara Egan to apply decorative painting to one of the walls.  Egan's employee Meghan Bailey worked on that task.  She fell from a ladder positioned on top of scaffolding.


Bailey sued Benchmark, alleging that it negligently erected and maintained the ladder and scaffolding.  Benchmark sought a defense from its insurer, USLIC.


USLIC denied that it had a duty to defend, relying on an exclusion excluding coverage for bodily injury to any employee of any contractor arising out rendering services of any kind for which any insured may become liable in any capacity.


     Sidenote:  The full exclusion is actually much more complicated.  A few months ago I wrote a post about why insurance policies are impossible to understand.  This exclusion is a perfect example of a clause that starts off making sense and then rambles and wanders until you have no idea how the end of it goes with the beginning.  The court (or the attorneys) did an admirable job of distilling it down to relevant clauses. 


"Contractor" was not defined in the policy.


In U.S. Liab. Ins. Co. v. Benchmark Constr., __ F.3d __, 2015 WL 4747164, the United States Court of  Appeals for the First Circuit held that there were two ambiguities in the exclusion.


First, the court held that the phrase "bodily injury to any employee of any contractor arising out of rendering services of any kind for which any insured may become liable" was ambiguous because it is not clear whether the phrase "for which any insured may become liable" modifies "services" or "bodily injury." 


(Anyone who has diagrammed sentences would know that the phrase modifies "services."  As that art has fallen off most schools' curriculums I don't fault the court for holding that the clause is ambiguous.)


Benchmark argued that the phrase modified "services," so that the policy excludes the claims of a contractor's employee only if the contractor's employee is injured while performing services for which the insured has some responsibility.  Under that interpretation, the exclusion is limited to bodily injury to employees of contractors Benchmark hires or has some contractual responsibility to.  Benchmark therefore contended that the exclusion applies only if Benchmark retained the right to exert any control over Bailey's decorative painting services and could be accountable for liabilities arising from or related to her work. 


USLIC argued that the phrase modifies "bodily injury," so that it applies to bodily injury to any contractor, subcontractor or employee of a contractor or subcontractor injured on the job if Benchmark may become liable for that injury.  Although Benchmark had no contractual relationship with Bailey, according to USLIC the exclusion applies because she was employed by a contractor. 


The court held that because reasonably intelligent people could differ as to what the phrase modifies the exclusion is ambiguous.  Because ambiguities are interpreted in favor of the insured, it must be interpreted as Benchmark asserted.  Because Benchmark could not become liable for Bailey's decorative painting, the exclusion does not apply.


The court also held that the meaning of the word "contractor" in the exclusion is ambiguous. 


Benchmark argued that contractor means Benchmark contractors.  USLIC argued that contractor means "anyone with a contract."  Since Egan had a contract to apply decorative paint, she was a contractor under this definition.


The court held that reasonably intelligent people could differ about the meaning of the word "contractor" and therefore the word must be interpreted in favor on Benchmark.  For that additional reason, the exclusion did not apply.


Congratulations to my law school classmate and colleague Mike Sams, incidentally one of the best attorneys I have ever had on the other side of a case, who represented Benchmark.