Writing insurance law textbooks (Casualty Insurance Claims,Excess Liability — Rights and Duties of Commercial Risk Insuredsand Insurers, and a new edition of Casualty Fire &Marine Investigation Checklists) it is occasionally possibleto predict what a court might rule, or what might change on appeal.In preparing for the new edition of Checklists, I includedan instruction regarding the definition of a “named insured” inpersonal liability (auto, homeowners) forms, when the definitionincludes a “spouse.” But with the states in turmoil over gaymarriage at the time, just who is a “spouse” if one was married ina state allowing gay marriage, but had a claim in a state that didnot recognize such marriages? It was one of those fickle pickles ofinsurance policy language.

No sooner had the text been submitted than the Roberts Courtruled in favor of gay marriage, now universal in all states. Hencemy explanatory paragraph was moot. I contacted my editor at ThomsonReuters West, and we elected to delete it. He then checked withJohn DiMugno (my co-editor on Catastrophe Claims: InsuranceCoverage for Natural and Man-made Disasters and the editor ofInsurance Litigation Reporter).

John replied, “As to cases addressing whether a same sex spousequalifies as an insured under the omnibus clause of an auto orhomeowners policy, I don't think there are any [court cases.] Idon't recall seeing one, and I at least look at every insurance lawdecision added to the Westlaw database on a daily basis. If I sawone, I would cover it in ILR. I'm sure the reason no caselaw exists (at least to my knowledge) is that insurers have notquestioned their obligation to cover same-sex spouses in statesthat recognize gay marriage. If insurers did contest coverage, theywould surely lose, given the universally recognized principle thatambiguities in an insurance policy must be construed in favor ofcoverage. With respect to other types of insurance, while theWestlaw database contains many decisions addressing the right ofsame sex couples to receive employment-related spousal benefits, noinsurer (to my knowledge) has contested coverage once the employerelects to provide such benefits.”