Jet Ski As Personal Watercraft
In Fire Insurance Exchange v. Oltmanns, 2012 WL 3510440, The Utah Court of Appeals addressed the question of whether coverage for a jet ski accident was excluded under a personal watercraft exclusion in a homeowners policy.
Oltmanns, the insured, and his friend Blackner were operating a Honda F-12 AquaTrax personal watercraft on a lake. This kind of personal watercraft is designed for use by a seated driver and up to two additional seated passengers. A lawsuit resulted from injuries sustained in an accident that occurred during this use and Oltmanns tendered the defense to his insurer, Fire Insurance Exchange.
The insurer denied coverage based on an exclusion that prevented coverage for bodily injury that results from the ownership, maintenance, use, loading, or unloading of jet skis and jet sleds or any other watercraft owned or rented to an insured. So, Fire Insurance Exchange brought a declaratory judgment action, arguing that it had no duty to defend or indemnify Oltmanns or compensate Blackner because liability coverage was excluded. The insurer then moved for summary judgment, saying that Oltmanns was operating a jet ski, which is merely a synonym for personal watercraft and the policy clearly and unambiguously excluded coverage for use of all such watercraft. Oltmanns argued that the exclusion did not apply because it was ambiguous, pointing out that “Jet Ski” is a registered trademark for a particular model of Kawasaki personal watercraft and this was not actually involved in the accident. The trial court sided with the insurer and this appeal followed.
The appeals court noted the insurer's argument that the use of the term “jet ski” was intended to refer to any and all personal watercraft. It contended that “jet ski” is common vernacular for such and thus is not ambiguous. The court said that it may be true that the insurer meant, through the use of the term “jet ski”, to exclude from coverage all varieties of personal watercraft. The court stated that it was confident that the insurer did not intend to refer only to a particular Kawasaki model of personal watercraft, even though there is such a model named Jet Ski. But, the court added, another common use of the term “jet ski” is in reference to the stand-up variant of personal watercraft known as wave runners; the court found this reference by using what it called “that great repository of contemporary wisdom”, Wikipedia.
Based on the information found in Wikipedia, the appeals court said that the insurer was imprecise in using the term “jet ski” in its policy. The court pointed out that, even discounting the bizarre possibility that it meant to refer only to one Kawasaki watercraft model, it still cannot be definitely said what the insurer intended: did it mean all manner of personal watercraft? Or did it mean only the stand-up variety? This resulted in the court finding that the exclusion was ambiguous as a matter of law.
The appeals court ruled that the exclusion fails to clearly and unmistakably communicate to the insured the specific circumstances under which the expected coverage will not be provided. Because the exclusionary language is ambiguous, it must be construed against the insurer. The judgment of the trial court was reversed and the case remanded.
Editor's Note: This case is noted not so much for its ruling, but for the court's relying on Wikipedia for the basis of its ruling. A concurring judge wrote that Wikipedia has been cited in hundreds of American judicial opinions, including one issued by the Utah Supreme Court. The use of Wikipedia is controversial since some courts approve and others condemn the use. This court of appeals lists the various court decisions on the subject, the shortcomings and strengths of Wikipedia, and emphasizes several bright line rules for when a Wikipedia entry should not be cited in a judicial opinion.