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Extrinsic Evidence: Examining California's Rules
Most insurance coverage litigation starts with a fundamental dispute over what an insurance policy means. Unfortunately, while California appellate courts have addressed the subject for decades, and while the California Supreme Court attempted to restate the basic principles, there still is considerable debate among litigants and courts as to how insurance policies are to be interpreted. Insurance carriers often contend that California is not as 'pro-insured' as it once was regarded. They often argue that insurance policies should be interpreted simply based on policy language, without reference to any external information, and that if the insured is 'sophisticated,' any ambiguity should be resolved against coverage. However, neither of these arguments is in accord with California law.
General Principles Governing Policy Interpretation
In 1990, the California Supreme Court restated and confirmed the general rules governing insurance policy interpretation. In AIU Insurance Co. v. Superior Court, 51 Cal. 3d 807, 799 P.2d 1253, 1274 Cal. Rptr. 820 (1990), the court addressed the question of insurance coverage for environmental cleanup costs that an insured was forced to pay. In holding that such costs constituted 'damages' insured by general liability policies, the court extensively discussed how to interpret insurance policies. It summarized and restated the basic rules as follows:
Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. Such intent is to be inferred, if possible, solely from the written provisions of the contract. The 'clear and explicit' meaning of these provisions, interpreted in their 'ordinary and popular sense,' unless 'used by the parties in a technical sense or a special meaning is given to them by usage' controls judicial interpretation. Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.
If there is ambiguity, however, it is resolved by interpreting the ambiguous provisions in the sense the promisor (ie, the insurer) believed the promisee understood them at the time of formation. If application of this rule does not eliminate the ambiguity, ambiguous language is construed against the party who caused the uncertainty to exist. In the insurance context, we generally resolve ambiguities in favor of coverage. Similarly, we generally interpret the coverage clauses of insurance policies broadly, protecting the objectively reasonable expectations of the insured. These rules stem from the fact that the insurer typically drafts policy language, leaving the insured little or no meaningful opportunity or ability to bargain for modifications. Because the insurer writes the policy, it is held 'responsible' for am-biguous policy language, which is therefore construed in favor of coverage. Id. at 821-22 (citations omitted).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.