Michael Sean Quinn*
Overdoing rhetoric in briefs, motions, pleadings, etc., is a poor, tasteless and below grade “C” lawyering. There has recently been direct and unequivocal explicit support for this obviously true proposition.  Perhaps the pronouncement of the 6th Circuit will encourage those who do not realize that stridency of semantics, as opposed to restrained assertion and calm clear argument, is almost never a good idea. Let the ideas produce the desired effect; if they don’t do the job, try a different approach if possible. Never resort to the crude bluster, cliche-ridden, always overdone language of the pool-hall loudmouth. Grade C lawyers at this point might say that such a position is absurd.  Such lawyers still would not have learned the lesson.
An illustration of this point is to be found in an insurance case of several years ago.  Barbara Bennett et al v. State Farm Mutual Automobile Insurance Company, No. 13-3047, 2013 WL 5312398 (6th Cir. September 24, 2013)
In this case, Ms. Bennett was struck by an automobile as she was walking her dog. As a result of this accident she ended up on the car–not next to in on the roadway, not standing next to the car, and not under the car. (This post is a variation of one posted on QUINN’S COMMENTARIES ON INSURANCE LAW.)
She argued that she “occupied” the car under the State Farm policy.  The District Judge held that State Farm’s defense was correct: she did not “occupy” the auto, since she was not in it.  State Farm called Bennett’s position “ridiculous” and did it on the first page of their brief.
The court criticized this linguistic behavior for four reasons: first, where the language was in the brief, second, because it was worded as it was; third, because State Farm’s argument was fairly obviously invalid; and fourth, because State Farm was wrong.
With regards to points #1 and #2 the court, quoting another opinion from which  it wrote its opinion: “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 when  the record supports an extreme modified, ‘the better practice is usually to say out the facts and let the court reach its own conclusion.’ Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011).”  Trying to, in some sense, compel opinions by the use of “battle-station” rhetoric is ill-advise.*
With regard to the third point,  the court criticized State Farm’s argument.  It argued that coverage analyses proceeded on the basis of how whole types of policies are interpreted: auto policies for example, and the “occupy” language of those types of policies. The court informed State Farm that contracts of insurance are to be interpreted one at a time and not as whole classes. That a court has decided a similar-looking policy in the way the insurer wants it interpreted does not bind a court, even itself.  Nor is the “type of” versus “this language for this situation” valid reasoning.
State Farm also tried to argue that only someone who has an “intrinsic relationship” with a car can be said to “occupy” it, and hence the court ought to be examining whether Ms. Bennett has such a relationship with the car that struck her. Instead, the court observed, there was authority in Ohio, where this suit was brought, that the intrinsic relationship test was one of several that can be applied “‘where a  gray area exists concerning whether a person’ was an occupant of a vehicle and thus entitled to coverage. In this case, however, the policy marks out its zone of coverage in primary colors. The policy terms therefore control.”
On this ground, the court reversed the district court and entered judgment in favor of Bennett. And it did this without remanding.
One can wonder about the decision. Oddly enough the court does not include a quote from the policy. That is unusual but not really interesting as to the court’s reasoning. More interesting is the fact that the court does not give a specific argument–perhaps based on a hypothetical–supporting the proposition that being on a car entails the proposition that one is occupying the car.
It also clearly, though impliedly, rejects the idea that the term “on” in this situation is ambiguous. It seems to me that one can be on a car, e.g., on top of a car, without actually occupying the car. The man that washes, waxes and cleans out my car every Saturday, does not occupy my car all the way through its work. He stands next to the car while is washing it; he climbs up on it to wax the top and gets in it to clean out the interior in various ways. It is plausible to say that only for the third part of the operation does he occupy the car.
Although the following example–nor anything like it–should ever be found in a brief (or anything like it), except as taken from a transcript of testimony. One can easily imagine a couple denying that they occupied the car while having sex on the front hood of the car (or even the roof), but “admitting” that they occupied the car when they did so in, for example, the back seat.
Perhaps–just perhaps–the court is impliedly suggesting that Bennett was occupying the car because she did have an intrinsic relationship with it. After all, she suffered further injuries as a result of being placed on the car–injuries that she would not have received had she not been knocked up onto the car.  I suppose one could argue that if one has been put onto something it occupies it.  One can easily have subscribed to this argument if the word is “into,” not “onto.”
One might oneself not be convinced by the court’s reasoning.  Consider the dog belonging to the 2012 candidate the Republican Party recently ran for president.  It did not occupy the family car when he was attached to the roof of the car as they all drove to Canada for a vacation.  The disclosure of this fact caused a furor. Obviously, part of the general population agreed: the dog did not occupy the car. In some respects, although certainly not in other very important respects, Bennett and the dog share properties.
*I tried “battle” rhetoric first long ago in the presentation of an argument to the 8th Circuit.  It was a covenant not to compete case with federal jurisdiction on grounds of diversity.  I had tried the case and lost. Anyway, I opened by informing the court that “This case is one of national significance.”  The head of one of the judges almost jerked up, and he immediately and a bit disdainfully asked, “How? Why?”  My answer had to do with the lack of case authority on how to interpret a “Uniform” act that had been passed in the relevant state.  I actually thought that a specialized uniform act, used in various ways around the country but enacted only here and there, made the matter then at hand one of national significance.  My clients loved it, but. . . . 
 I suppose  I must confess that my address there was not the last time I did that, though all the (few others, I hope and believe) were somehow triggered by a mysterious outside source, and therefore have been instances of  unintended rhetorical idiocy, so that  I am not really responsible.
*Michael Sean Quinn, Ph.D, J.D., Etc.
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