By David Forster, LAW WEEK COLORADO
You might expect a court ruling in a battle between two insurance companies to be the perfect cure for insomnia. But then comes a decision published Tuesday that opens with this playful tease:
“Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger.”
Judge Neil Gorsuch of the 10th Circuit Court of Appeals penned that literary morsel in a case out of Oklahoma City. It continues:
“Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.”
Gorsuch keeps up the conversational tone as he lays out the facts underlying the insurance dispute:
“The problems began at the front door of the Bricktown Haunted House in Oklahoma City. There Mr. Hodges was working the twilight hours checking tickets as guests entered. When the flashlight he used began flickering and then died, he ventured inside in search of a replacement. To navigate his way through the inky gloom, Mr. Hodges used the light of his cell phone. But when an actor complained that the light dampened the otherworldly atmosphere, Mr. Hodges turned it off and stumbled along as best he could. He was aiming for the freight elevator, where (imprudently, it turns out) spare flashlights were stored. When he reached the elevator, Mr. Hodges lifted the wooden gate across the entrance and stepped in. But because of the brooding darkness, Mr. Hodges couldn’t see that the elevator was on a floor above him and he crashed 20 feet down the empty elevator shaft.”
Hodges sued the haunted house. One insurer, Western World, paid to cover the legal costs, then turned to the other, Markel American, for reimbursement for half. Markel balked, citing an escape clause in its policy that it claimed insulated it from liability in a case of double insurance. The district court agreed.
Thoughout his decision overturning the district court and ordering Markel to pay its fair share, Gorsuch sprinkles in some ghoulish metaphors. To wit:
“Markel’s five page letter to Brewer explaining its decision to deny coverage rehearsed many other arguments — arguments it gave up the ghost on long ago — but the letter never once mentioned the escape clause. … In fact, based upon the record the parties have presented to us it appears the first time Markel itself unearthed the escape clause from the depths of the contract and invoked it as a potential basis for evading liability was only after this litigation began.”
Perhaps the clever prose should come as no surprise from a jurist who in his college years was a co-founder of Columbia University’s witty and often politically incorrect alternative newspaper, The Fed. Gorsuch, a 1991 graduate of Harvard Law School, was appointed to the 10th Circuit in 2006 by President Bush.