August 15, 2006
You learn something new every day. At least, I did on Saturday morning. I was skimming through some recent cases, looking for ideas for the blog -- and that I was spending Saturday morning reading cases should indicate to you that the Excite-o-Meter in my life is trending substantially below that of Paris Hilton, or indeed of most vertebrates -- when I came across this case, Allstate v. Dolman. The fact pattern -- husband fools around with teen-aged baby sitter -- is mildly interesting, if not exactly uncommon.
At which point the plot line veers from Lifetime Movie Network into LA Law: baby sitter's parents sue husband, and also husband's wife; their theory against the latter was that she knew her husband was a skank -- he'd been charged with fondling his niece's breasts in the state they'd lived in before moving to Ohio -- and had failed to warn anyone or monitor his conduct. This is where it picks up some interest from the legal standpoint: while the Ohio Supreme Court has held that sexual molestation is not covered by homeowner's insurance, it has held that allowing coverage for the non-molester, under a failure to supervise or failure to warn theory, is permissible.
The Dolman case even has some interest from a procedural angle: The trial court, in granting summary judgment, relied on a provision of the policy that Allstate hadn't argued, or even cited. Despite Allstate's claim that the appellate court could consider that provision because, by attaching the whole policy to its motion, Allstate had implicitly argued it, the Court wasn't buying. Citing case law which says that a movant must "specifically delineate" its basis for summary judgment in order to give the other side a "meaningful opportunity to respond," the Court reversed.
So this is where it gets weird. I'm getting to the end of the opinion, slightly diverted by a pleasant reverie about the picture of Christie Brinkley that appears in the link at the end of the first paragraph, when I come to this line: "In their second assignment of error, the Does argue that if this case is remanded, Allstate is precluded from raising the Joint Obligations Clause issue in accordance with the 'mend the hold' doctrine."
Huh? "'Mend the hold' doctrine"? I'd never heard of it, and apparently neither have a lot of other people: according to my buddy Lexis, the words "mend" and "hold" appear in the same sentence exactly twice in the entire history of Ohio case law, and one of them is the Dolman case; the other is a 1936 case out of Ottawa County about a mechanics lien.
Well, I did some more checking (our motto here at The Briefcase: We Google so you don't have to), and it turns out there is such a doctrine, apparently well-established in insurance law. There's a good discussion of it, along with the doctrines of waiver and estoppel as applied in insurance contract situations, on this blog, but the short version is that if the insurance company denies coverage for Reason A, they can't go in and argue Reason B once litigation begins.
So maybe you learned something today, too. About insurance law, or summary judgment procedure, or insurance coverage for sexual molesters. Or, if nothing else, about what Idiot Level you'd have to reach to fool around if you were married to Christie Brinkley.