*1 343 applicable prece- with other harmonized superfi- the most On the Fourteenth. and Amendment, Fourth concerning the dents for the claim level, grounds if the cial prose- of malicious the constitutional “tort” Amend- and Fourteenth the Fourth under in the form we have will survive cution there would have equivalent, were ments created. between those distinguish no need been Albright.
amendments admonition, I concur. With this Moreover, prosecu- malicious the tort of Fourth uneasily within the fits
tion proscribes That amendment
Amendment. and seizures searches
unreasonable arbitrary law- prohibit held to
has been until the time up actions
enforcement a Fourth Amend- justify To arraignment. CORPORATION, BLAINE CONSTRUCTION then, claim, prosecution malicious ment ff-Appellant Plainti of “seizure” period extend the one has to /Cross-Appellee, Ginsburg Only Justice past arraignment. Albright, leap make this willing to v. both on courts are divided and the circuit COMPANY OF NORTH INSURANCE Amendment the Fourth application Defendant-Appel AMERICA, mere re- and on whether post-arraignment lee/Cross-Appellant. of bond posting quirements 97-5579, 97-5636. Nos. hearings, without pretrial at appearance more, This court a “seizure.”10 constitute Appeals, Court United States on the side of Justice recently up lined Sixth Circuit. acknowl- without Ginsburg’s concurrence 30, July 1998. Argued identity for debate.11 The edging the basis in a malicious defendant proper 8, 1999. Decided March on the Fourth claim founded prosecution Rehearing Suggestion for Rehearing question, a difficult is also Amendment 12, April 1999.* En Banc Denied other courts have Ginsburg and Justice realized.12 go, issues the status constitutional
As prosecu- of malicious tort constitutional IBut potatoes. like small seem more atten- paid that our court
wish Albright. It is the ramifications of
tion to that, Albright clear to me
far from Evans, F.3d at 861. City Philadelphia, 11. See 168 161 10.Compare Gallo v. 217, (3d Cir.1998) (indictment, 222-25 F.3d bond, con travel restrictions constitute against po- prosecution claim 12. A malicious seizure), Lynn, Murphy v. 118 tinuing “anomalous,” as Justice Gins- lice officers is (2d Cir.1997) (same, over a F.3d noted, Albright, U.S. at 279 n. burg Jacobs); Riley Judge v. Dor with dissent ton, thing, prosecutors 5. For one S.Ct. at 816 n. Cir.1997) (4th 1162-63 115 F.3d immunity. id. The See enjoy absolute will (en banc) theory continuing (rejecting seizure “Albright's theory raises Justice added force), alleging post-arrest excessive for claim and police questions about whether serious Reed, (question n. 6 77 F.3d 1052-54 rationale). prose- be entitled to share continuing This court ing seizure officer id.; Taylor, Amendment does held that the Fourth see also immunity.” See cutor’s purposes excessive force claims apply Reed, for 1563; at 1053. F.3d 82 F.3d at during pretrial detention. arrest and after * rehearing grant Judge Boggs would Klevenhagen, 28 F.3d See Brothers dissent. 1994). stated in his reasons Cir. *2 invoked both judgment motion summary these affirmative defenses. conceded, purposes plaintiff analysis, that the *3 workmanship, but by faulty caused been exception express on plaintiff relied an The workmanship exclusion. faulty reinstating cov- had the effect exception briefed), (argued and L. Monty Walton from damage “ensuing” for loss or erage McClane, Carpen- Woolf, Allen & Bright, notwithstanding that no peril, an insured Tennessee, Plaintiff-Ap- Knoxville, for ter, of cor- for the cost coverage provided was pellant/Cross-Appellee. workmanship itself. recting faulty (briefed), Voj- A. Sava KayM. Edward in this court decision of Applying the Clausen, (argued), canin, Terrazino Imelda Maryland Ass’n v. Casu- Chem. Farmers Witous, Chica- Miller, Gorman, Caffrey & (6th Cir.1970), the Co., alty 421 F.2d (briefed), Illinois; N. Wedekind David go, argu- plaintiffs accepted court district Knoxville, Carson, & Hodges, Doughty ensuing exception loss on the ment Tennessee, Defendanb-Appellee/Cross- for by claim not barred that the held Appellant. The court faulty workmanship exclusion. second af- company’s CLAY, the insurance BOGGS, upheld NELSON, Before: defense, however, dismissed firmative Judges. Circuit loss had that the ground on the the lawsuit NELSON, J., opinion delivered coverage of the placed outside the been J., CLAY, court, joined. in which dampness of by the unambiguously, policy, 354-360), a BOGGS, delivered (pp. J. exclusion. dissenting opinion.
separate appealed, plaintiff The contractor company has insurance and the defendant
OPINION de Upon cross-appeal. protective a taken the insur- conclude NELSON, Judge. review we novo A. Circuit DAVID judg- entitled to was not company ance which, diversity is a case This defenses. of its on either affirmative ment summary judgment, motions for cross will the lawsuit dismissing order The asserted a claim court dismissed district be reversed. therefore a under company an insurance against damage policy. property all-risk builder’s I contractor, claimant, a construction Cor- Construction plaintiff, Blaine lia- company to hold sought in- as an additional named poration, ceiling insula- replacing for the cost of ble $150,000,000policy written under sured condensed ruined water that tion defendant, Company of Insurance by the a subcon- cavity after the insulation within covered, The INA America. North vapor barrier to install failed tractor things, among other properly. in: Interest “The Insured set forth were affirmative defenses Two owned (a) Property Real and Personal rested on The first pleadings. in and, improvements Insured by the coverage that excluded policy provision buildings and betterments by “faulty or caused for loss Insured; by the owned rested on The second workmanship.” (b) of oth- Property and Personal Real dryness of “[djampness or Care, Custody Insured’s ers changes or extremes atmosphere; Control, liabili- the Insured’s company’s The insurance temperature.” law or ty imposed conformity assumed tem was not in with the con- prior contract to loss.” tract. written caption Under the “PERILS INSURED The contract called for the use of insula- policy provided
AGAINST” vapor batts with barriers laminated on ALL against “This insures one side. These batts were to underlie thicker, unfaced, OF DIRECT PHYSICAL LOSS RISKS insulation batts. Both property insured in- OR DAMAGE courses of insulation were to go between cluding general average, salvage and all members, framing structural steel called charges shipments covered “purlins,” below the roof line. except hereunder as excluded.” vapor protruded beyond barriers *4 caption Under the “PERILS EXCLUD- laminated, they the batts to which were ED” policy provided the that forming “edge in tabs” two inches width. policy “This does not insure loss or dam- another, Designed to overlap one the edge age indirectly directly by any caused or supposed tabs were taped or sealed damage Peril excluded. Such loss or to form a vapor continuous barrier capable to, excluded whether contributed in preventing migration. moisture by any or in excluded part, whole Peril.” sealing edge Instead of the tabs to form then enumerated 20 excluded barrier, vapor continuous High Rider in perils, including the two here: simply tucked the up against tabs the sides design, “10. Errors in errors in pro- purlins. of the Moisture could thus mi- cessing, faulty workmanship faulty or barrier, grate above the vapor materials, unless loss or from an condensation trapped would be in the cavi- insured Peril ensues and then for purlins. ties between the ensuing damage. such loss or That seems to be precisely what hap-
pened 1994-95, in the winter of at a time when construction activities go- were still 12. Dampness dryness ing or of atmo- on within building. Consulting the sphere; changes engineers or in temper- extremes hired in May ature.” after the loss had reported, been found vapor “[w]hen the barrier was cut a Although seeping up water from the copious amount of water flowed from the ground and precipitation falling person- ” opening.... appeared, It according al property in open the were listed as engineers, the that copious amounts of wa- excluded perils, general there was no ex- ter trapped had been ceiling the cavities clusion damage. for water across the entire structure. Corporation Blaine Construction had be- come an poli- additional insured under the The owner of building told INA’s cy entering after into a contract engineers to con- system the roof was sub- struct a metal building warehouse for a stantially completed before the winter be- Huron, utility company in South gan. Dakota. building’s concrete floor was The construction contract called for poured January instal- February lation of a total of 12 inches of insulation at and heaters fired with natural gas were the roof of building, and Blaine subcon- used keep building warm during tracted the insulation and insulation sup- those months. venting Interior of the ex- port system work to Crown Metal Build- haust from the heaters increased the rel- Inc., ings, High Systems. Rider humidity We ative building. d/b/a within assume, must present for purposes, that Thawing ground of the and construction High manner which Rider installed curing materials and the of the concrete the insulation support sys- and insulation also contributed to the humidity. exclusion, workmanship faulty resulting humidity and Although contended, among Blaine’s motion they than greater were condensation failure to seal otherwise, engi- things, that INA’s “[e]ven been would have constituted defective secondary as a barrier vapor this factor viewed neers into the work, of moisture concluded with the introduction to INA report Their one. ‘ensuing loss’ outside the terms: was an in these insulation couched opinion upon exclusion relied of the first scope all of the condensation if not “[M]ost dampness respect INA.” With cavity could insulation area within exclusion, the mo- dryness proper with prevented have been al, inter contended, within “[a]ir edge .vapor barriers of the installation ‘atmosphere’ as that building space is not ends sealing of the insulation tabs understood, and there- reasonably term is cross-bracing po- and at the beams over * * * fore, upon relied second pro- proper If insulation sitions. case.” in this applicable INA is not out, carried condensa- had been cedures occur, formed tion, would have if it did response cross-motion INA filed vapor of the barrier on the underside argued judgment in which summary Thus, no building. the interior coverage barred exclusions have *5 to the insulation applied and had to ac- unambiguously resulted. ordinary meaning. Blaine cording to their conclusion, on the vapor barrier In arguing, among reply a brief then filed in manner sealed a had been insulation advancing “a INA was things, that customary to the is [as] specified as use of the term and uncommon strained subsequent trade, the condensation least,” very that ‘atmosphere;’” “[a]t in the insulation of water accumulation in the brief validated “the caselaw cited have occurred. would not blankets interpretation of Blaine’s reasonableness high a provided activities construction atmosphere’ of exclu- ‘dampness of only which be- humidity level relative sion;” the insurance contract “[i]f and that the lack of contin- a factor due to came than one reasonable subject to more vapor uous barrier.” must be con- policy interpretation, to the insured.” favorably strued most II filed, the court brief was After the final directed Blaine building owner summary on the argument heard oral all replace of water-soaked remove addressing the In motions. judgment at a allegedly Blaine did insulation. so— at the atmosphere” issue of $315,000 brought then of about cost —and contendéd first counsel hearing, Blaine’s INA in federal against present lawsuit reasonable in- “the Blaine’s that was un- after a claim submitted court district ” heAs the words.... terpretation of had been denied. policy der however, brief, Blaine’s reply done in his with corporation is a Tennessee Blaine that, very at the argue went on to lawyer Knoxville, place business principal its least, interpretation a reasonable “we have Pennsylva- citizen of INA is a Tennessee. words, proven we’ve and where of the that the (cid:127) agreement are parties nia. The the words interpretation reasonable ” was diversity jurisdiction court’s district He coverage.... did we’re entitled governing invoked and properly “ambiguity,” but use the word not law is Tennessee’s. substantive op- argument of his implication clear —as under- unquestionably posing counsel filed answer months after INA its Some dampness if the even de- stood—was defenses the affirmative asserting clearly limit- not atmosphere exclusion above, partial Blaine moved for scribed lay- conditions atmospheric respect ed to With summary judgment thereon. term, was, of the the exclusion trying man’s sense to make a strained or contrived least, very ambiguous. interpretation at the language, of the it’s by trying to read the word atmosphere, responded Counsel for INA that “[t]he dampness any exclude they’re required indicate that cases kind of damage that occurs from water. point ambiguity.” may to an what With a touch hyperbole, strike the reader as We think if the Court looks at the INA’s counsel then said this: cited, cases that have been the Court can they’ve agree weight authority
“What the Court here that the given They really in favor interpretation. logic strained haven’t of Blaine but the pled ambiguity; they proven supports] an haven’t those cases position Blaine’s case, in this ambiguity; they request haven’t indicated and we the Court to ambiguity. grant evidence of an our motion for summary judg- What they ment.” want Court to do is to read one policy.” into the issue, position” “Blaine’s on this as re- rejoinder offered Blaine’s flected elsewhere the oral lawyer suggestion that he wanted transcript brief, reply clearly
the court to read a non-existent ambiguity parts. had two part The first into the was one that strike the only” “the interpretation reader more hyperbole: than interpretation exclusion was the offered “[Wje’ve argued there is an Blaine. The part second was that —at the Quite ambiguity, your Honor. often very least—Blaine’s was “a” reasonable in- we don’t think the is ambigu- Tsicl terpretation. “[Tjhey’ve chosen the word policy clearly ous. We think the says [‘atmosphere’],” argued Blaine’s counsel *6 say what it says.” we page of transcript, 8 the “and they have to ” by live interpretation.... reasonable dissenting colleague Our reads this as a (Emphasis supplied.) “[T]he fact that two retraction of Blaine’s fallback or three courts that ... have interpreted dampness the of atmosphere exclusion that word all agree with our interpreta- was, least, very at the In ambiguous. its tion,” continued, prima he “is facie evi- however, appeal, brief on INA has not a reasonable inter- got dence that we’ve argued that such a retraction occurred— pretation language.” of that (Emphasis novo de and our review of the record supplied.) unpersuaded leaves us lawyer’s the reflexive remark was intended as a retrac- line,” the “So bottom counsel told the tion of position previously the fallback ad- court, is, district “... without going even vanced. cases, words, to the if just read we the and peroration Consider the of Blame’s oral very the law is in interpreting clear insur- argument, begins, which in the transcript, contracts, you ance read the words and if a few lines supposed below the retraction: it’s interpretation that’s of-
“If going calling we’re to start ... by insured, fered the then there should be water that on the condenses underside coverage; and in I this case think we’ve panel the metal and building got falls into the reasonable interpretation of the words, insulation dampness atmosphere, but, a rea- certainly, the we have essentially what arguing INA is is that interpretation words, sonable of the and no water damage a reasonable interpre- is covered poli- proven this where we’ve cy, and very easy that would be words, for INA tation of the we’re entitled to the say. If INA wanted to say, coverage, no dam- request and we the Court entel- age by water policy, [is covered] an explaining policy Order how the will be ” they just that; say have to applied but that’s not regard with to these facts.... what says; This, policy anybody it, (Emphasis supplied.) we take was
349
],” to
exclusion[
from the
“exclusion[]
an
at the
by Blaine
reaffirmed
position
Friendly1—
Judge
from
phrase
borrow
argument.
of its oral
end
damage” that ensues
“ensuing loss or
for
said,
court,
did
we have
district
”
Peril....
an insured
“from
“The
position:
Court
accept Blaine’s
policy’s
INA
is whether the
facing us here
use of
policy
ambiguity
no
finds
exclusion,
its en-
workmanship
with
faulty
concludes that
'atmosphere,5
word
unambiguously pre-
exception,
suing loss
compa-
utility
[the
interior of
refers
ensuing from
coverage for
cludes
its exterior.”
well as
building as
ny’s]
described.
we have
chain of events
was entered
Summary judgment
basis.
solely on this
Maryland
v.
Chem.
In Farmers
Ass’n
(6th
Co.,
Cir.
went out of its way express disagree- showed, ties the ‘crawl space’ ment with the trial interpretation court’s under the house inadequately sup- “[cjontamination, the exclusion for plied with vents. Contact between air dampness of atmosphere, change of temp- trapped in the space crawl and the sub- erature, corrosion or rust:” sills, floors and which had been chilled “We find the ‘change temperature’ by air conditioning, produced condensa- contained at bar tion of moisture and consequent rot- since, ambiguous context, ‘ to be read in ting.” Id. at 940. according it the meaning “which ’ given by average would be it man” The exclusionary clause was “disheart- .... may it reasonably changes ening” plaintiffs, for the Judge Friendly refer it, because, the weather ... which put words, was not the in his cause of the loss suffered at bar.” Id. at “Plaintiffs’ loss could be said to be (citations (emphasis supplied) omit- ‘caused’ the defective construction of ted). house, vice’; arguably an ‘inherent mutandis, us, Mutatis it seems to ‘deterioration,’ while awas although perhaps the INA exclusionary deterioration; clause not nec- not ‘caused’ by surely essarily alone, refer to the ‘rot’; weather it can was caused the rot almost most reasonably way be read that in light of the certainly [sic] had been caused ‘fun- meaning that average man would be gi’; ‘dampness of atmosphere’ had likely to ascribe to it. Purpura strongly produced the condition in which the fun- *10 as water also be classified can at sense it Id. their work.” and do grow could gi a easy to find it would not damage; be 941. of dampness rot or case of clause contained exclusionary Yates the subject to that label and equally not caused “ensuing loss exception for practically would become exclusions loss- such provided ... damage ... water ” Id. meaningless.3” Id. covered.... be otherwise es would loss plaintiffs’ the held that court the But course, bar, is no there the at In case “water dam- dignity of to the not rise did had rotted. the that insulation contention so policy, the meaning of the within age,” direct damage consisted Here the the in favor of rendered was judgment water, ac- if we were to intrusion company. exclusionary reading of the cept INA’s one, bar, the exclu- although an inter- at In the case as the clause ensuing no as to presented at issue here would be sionary esting question clause in- damage, INA for water “indirect- exception was caused damage loss whether the was the insulation damage exclusionary to meaning that the sists the the ly,” within disagree; it seems damage. clause, atmosphere. not water We by dampness of what precisely damage surmise, that water invoke answer, to us would we Blaine’s owner to re- building the that led If had analogy: was workmen leaking roof As the insulation. replace to roof, Blaine quire and if rain in the open seams left all, attested, have, after experts own (which INA’s but for hu- not fallen would with water was so “saturated” insulation seeped atmosphere) midity in pierced, was barrier vapor that when insulation, the damaged through in a opening” from flowed “water covered—in clearly have been loss would im- “copious.” The described as quantity notwithstanding the circuit, at this least— obviously, damage, cause of the mediate being That exclusion. workmanship faulty “an to as referred engineers what the was to ex- strange so, passing seem would water,” not an accumula- accumulation exactly the same coverage where clude humidity. left seams damage results from type of to a opposed vapor barrier as open a it was water argues that because Blaine roof. damaged, was insulation by which the air, damage bears closer moist not has not been question This is by a damage caused to water resemblance briefs, and we in the ventilated thoroughly presumably (damage leaking roof ar- Assuming, it here. not decide need than policy) by the INA be covered
would causation guendo, that rot, example— damage —mildew INA, must ask we favor decided atmosphere.” “dampness of caused logic of anything there whether “di- reference with a counters INA in Yates Friendly’s opinion Judge language the exclu- indirectly” rectly or conclusion our to rethink compels us quotation a further clause and sionary reasonably be meaning can more than one Judge where passage Yates—a from of at- phrase attributed notion that rot rejected the Friendly not. there is conclude that We mosphere.” separa- in some sense damage were water word ‘atmo- “while the us that events: ble tells Yates, directly issue not sphere’ was phenome- single not think that “We do it re- recognized that clearly un- the court risk an excluded clearly that is non the build- space inside ferred meant become der certainly as- Yates court ing....” philosophical in a compensable because damage from suing the rot not case,” from Judge Friendly on to went 3. "In our conveyed intrusion water the direct ensued from water say, rot have “the " damage.' Id. phrase en- 'water damage, water from *11 this, least, at assumption sumed but the ment: “The they’re cases indicate that re- quired was not determinative of the outcome—the to point ambiguity. to an What obviously end result would have been the they’ve given the Court here is a strained court had phrase same found the interpretation. They pled haven’t an am- — n atmosphere” ambiguous biguity; they proven haven’t an ambiguity; and we no to suppose they have reason that the haven’t indicated evidence of an validity assumption argued of the was even ambiguity.” (Transcript of oral all, 11). undisputed, Yates. It was after response Blaine’s to this was as subflooring, joists and sills “were al- follows: argued “[W]e’ve not that there is completely most away,” pol- rotted and the ambiguity, your Quite Honor. often we icy contained an express exclusion for loss don’t think policy ambiguous. is We caused only question “rot.” The real in think the policy clearly says what say we it Yates was whether the ensuing excep- says.” loss Id. at 15. applied; could not have made the The district court relied on this conces- slightest anybody difference to whether opinion. sion its majority concludes “dampness of atmosphere” ambiguous that this reliance was improper. If Blaine bar, or not. In the case at on the other however, wanted to advantage, abandon its
hand, huge it makes a difference. why should the district court stopped have it? subject-matter This is not an reject is close one. We issue like jurisdiction, out of hand which Blaine’s contention that we either have its or do have, not reading regardless of the only exclusion is the reason- of concessions or one, agreement by readily parties. able and we A acknowledge plaintiff must come reading INA’s into court and specify We cannot the relief reasonable. unreasonable, say that it wishes Blaine’s is to receive. a plaintiff, howev- When counsel, through er—and because “the insurer does not ask for all must estab- that it to, lish that the is entitled applies partic- duty is not the of the court guess sure, ular to second subject case and that it is counsel. To to no other be district court interpretation,” reasonable could have Purpura, accept refused to parties’ agreement matter, N.Y.S.2d at we conclude that on this Blaine is I coverage. hold, entitled to do not think that we should as we today, do that the district court must do judgment entered the district put so. To way, this another Blaine is REVERSED, court is and the case is RE- raising on appeal an issue that it did not MANDED with grant instructions court, raise before the district and we Blaine’s motion for partial summary judg- should not “reverse” the district court for ment. failing to make a decision that it had no reason to make. Although we often state BOGGS, Judge, Circuit dissenting. that we grounds affirm different I disagree that we should consider this than those upon by relied the district court policy language to ambiguous. I also (an extension concept of harmless believe that even if we treat it as ambigu- error), I do not think we can reverse on ous, interpretation Blaine’s is not a reason- grounds presented below. Therefore, able one. I dissent.
II I point me, This is ultimately irrelevant to reason, For however, some Blaine conceded at I because do not believe that the oral argument in the district court that A ambiguous. ambigu- policy was unambiguous and did not at- ous it supports when more than one tempt argue otherwise. INA started interpretation, see Smith v. the discussion with following state- Shelby Ins. Shelby Co. Ins. Group, 936 *12 it) (indeed, deny is unreasonable. to and I do text 261, (Tenn.App.1996), 263 S.W.2d defini- at least one favorable The fact that is interpretation Blaine’s that believe end an should not a word exists of reasonable. in a that term meaning of as to the inquiry we are A true whether This is contract. damp atmosphere. a dog a defining lawyers peril case illustrates This are de Dictionaries dictionaries. citing B the mean comprehensive, to be
signed context, and dependent is of words ing atmosphere” “dampness what does So dictionary do not in a definitions individual mean? an extreme To take always offer context. Blaine First, consider what we should here, let us technique to Blame’s analogy win this in order demonstrate to must that policy I an insurance that assume majority has overlooked appeal. injury caused coverage excluded To regard. in this something fundamental attacked being after day, by dog. One us more than show Blaine do must prevail, it that I decide pooch, an irascible by mean can atmosphere” “dampness that com the insurance nice have to would that us humidity. It must show outdoor what of bills. But my pay medical pany mean atmosphere” cannot “dampness of policy? in the troublesome in this done humidity. indoor dictionary and my worry. I to turn No policy by covered insurance case is an andiron. defined as “dog” is that note interpre- if the latter is a (2d 414 Dictionary Heritage American can if Blaine way, Put another tation. I ed.1982). lawyer, Being good Eureka! at- that reasonably contend it in the and find support, for more search humidity, only outdoor means mosphere” Dictionary 4 See OED. ENGlish Oxford reasonably to If all can do is wins. ed.1989) (referred (2d as below to 922 atmosphere” “dampness of that contend OED). confidently proclaim can now I humidity, it cannot means outdoor also term) (to a “con Blaine’s use there win. of the term treatment” and uniform sistent I clearly means “andiron.” “dog,” which example. dog/andiron Consider inju cases which cite several even can de- argument Anyone making See, e.g., by andirons. are caused ries court, but not out laughed to be serve 612, DiMarcantonio, 117 A.D.2d People v. “andiron.” mean “dog” cannot because 160, (N.Y.App.Div.1986); 161 N.Y.S.2d 498 proba- interpretation though that Even 377, State, 292 Ala.App. 52 Vaughn v. “reasonable,” this tells contextually bly not (1974), rev’d, Ala. 671, 672 293 So.2d does nothing policy about what us Silva, (Ala.1974); 153 State v. So.2d 6 neighborhood aby Being mean. bitten (Me.1957), over A.2d Me. pol- hypothetical from is excluded mutt Brewer, A.2d 774 State ruled interpretation any reasonable icy because (Me.1985). in- must “dog” word species Cams members is not clude Admittedly, Blaine’s fami- by a Furthermore, I am bitten liaris. hypothetical as unreasonable quite mutt, by saying prevail I Indeed, cannot my brethren I two offer here. one “dog” are are called among things is rea- interpretation that Blaine’s think Terriers, of which a breed their Dandie Dinmont sonable, I would not I can Nor not a member. mutt was However, quo- Blaine’s selective sagacity. also “dog” is that since reasonably say sources, purportedly of reference tation in distinction dog, male to mean a treat- used and uniform a “consistent offer I am 2, that bitch, def. 4 OED see in the andi- ment,” illogical than no less as the long so covered ignore con- still attempt example. This ron (unless damages me is a female dog that lb. mass of aeriform fluid sur- earth; policy gives us a contextual rounding course the whole interpret “dog”). to so the word body basis of terrestrial air [first listed Rather, that it I must show is reasonable use 1677]. interpret exclusion so as 5. The air in any particular place, esp. A to exclude mutts or bitches. mutt heat, as affected its condition *13 Dinmont, may not be Dandie and bitch cold, purifying or in- contaminating female, say but it is unreasonable to = fluences, etc.; AIR sb. 4 list- [first that either not a dog. of these is Similar- 1767], ed use
ly, indoor humidity be outdoor (2d ed.). 1 OED 750 Definition which is it humidity, say but is unreasonable to two, clearly the given better of the it atmosphere.” is not context of the insurance and its “dampness,” reference to draws no distinc-
C tion between outdoor and air. indoor It is thus unreasonable to define “dampness of My requires proof. last statement atmosphere” so as to exclude indoor air. Luckily, ample just there is evidence not that no definition of “dampness In determining meaning of “atmo- of atmosphere” may exclude indoor humid- sphere” in the context of dampness, I turn ity, humidity but furthermore that indoor again to the helpful OED for several quo- meaning is the most common of the term. tations. “What places follows are all of the exactly, More the most common use of in the OED where form of some the word “atmosphere,” conjunction when in used “damp” is used with some form of the with a term “dampness,” like is to refer to word “atmosphere” quotation, in a repro- air particular place, in an whether they appear duced as in [year the OED outdoors or indoors. The distinction in citation bold]: Blaine draws is not supported by thus Garnsey H.E.F. tr. A. Bary’s de typical usage. Compar. Morphol. Fungi & Biol. iii. 89
My
regarding
earlier attack
the use of
long
As
Fungus
as the
up
remains shut
dictionaries in cases such as this should
in the damp atmosphere no amount of
not be taken to mean that I find dictionar-
shaking will
puff.
cause
[12 OED
ies
in interpreting
796;
useless
insurance con-
v.,
puff,
Id.]
Rather,
tracts.
I am frustrated with their
1882 Garden 11 Mar.
A damp,
168/2
mis-use,
through
selective quotation.
cool atmosphere, with little artificial
What
my attempt
follows is
to undo this
heat, causes the flowers to spot.
[16
insult, and
right by
thus to do
the dictio-
324;
v.,
OED
spot,
I.3.]
nary.
cl900 Buck’s Handbk. Med. Sci. III.
dictionary
The most definitive
of the En-
265 (Cent.Dict.Suppl.) Damp soil serves
glish language
English
Oxford
Dic-
keep
the super-ambient atmosphere
tionary.
attempt
Not
does the OED
206;
damp.
OED
super-ambient,
[17
every
to list
English
word used
prefix, I.2.]
language
years,
in the last
thousand
1934 E.
Rhythmic
Little Mod.
Drum-
attempts
provide every
definition that
(rev. ed.)
ming
26 No outfit is complete
each word
importantly,
has had. More
without at least one tomtom. The ‘tune-
our purposes, it
quotations,
also offers
us-
best,
able’ models are the
because
ing each definition in context.
dampness in
can be
“Atmosphere”
two
relevant defini-
counteracted
the use of the tension-
tions, among
a.,
many
668; tunable,
listed in order of
ing handles.
OED
[18
2.]
their entry
language:
into the
re-
comprehensive
exhaustive
Sci,
to do
Inorg. Nat. 215
Circ.
Orr’s
follows is the
regard.
in this
What
in a
search
rapidly
resulting lime..sets
of the American
search of-all
result of a
wa-
under
and even
atmosphere,
damp
(fifty-four
in Westlaw
cases contained
under,
948;
prep., I.4e.]
OED
[18
ter.
total)
of the word
some form
which
174, I have
I.
Trav. xi.
Smollett
of some
within five words
appears
“damp”
damp atmo-
cold and
always found
there
“atmosphere,” and
the word
form
any to
most unfavorable
sphere
meaning of the
as to the
some hint
15; unfavora-
OED
[19
my constitution.
phrase.
ble, a., lb.]
“atmosphere”
quotations use
All of these
cases, “at-
fifty-four
fifty-one
In
rather
than
of Definition
sense
in the sense of OED
is used
mosphere”
imply
of them
lb. None
Definition
lb.
than Definition
rather
Definition
between
se distinction
any per
clear,
there
three,
(In
less
this is
the other
*14
of the
air
the use
outdoor
indoor
fac-
distinguishing
important
are
there
the
though
word
“atmosphere,”
as
case,
term
tors.)
is,
every
That
almost
former.
not the
the latter but
mean
could
the air
to is
“atmosphere” referred
as
can be read
quotations
of the six
Four
outdoors and
place, sometimes
particular
air,
two
least
discussing indoor
twenty-six of the
indoors.
In
sometimes
definitely are.
definitely
cases,
atmosphere is
damp
cases, it
un-
is
eight
In another
notwithstanding,
indoors.1
definitiveness
Its
is,
it
atmosphere
but
damp
clear where
in under-
to look
place
not the last
is
OED
surrounding
particular
Indeed,
clearly the air
is
a term is used.
standing how
cases,
damp at-
In seventeen
place.2
opportunity
good
offer a
databases
modern
cases,
Minneapolis, St. Paul
bule/foyer); Marcott v.
dampness of
following
26
1.
In the
216,
17,
147
133
damp
Ry.,
Marie
Wis.
In
Sault Ste.
atmosphere
clearly
&
is
inside.
37, 37,
(Wis.1911).
building. See Aetna
atmosphere
39
is inside
N.W.
939,
Yates,
941
Surety
344 F.2d
Co. v.
&Cas.
cases,
atmosphere
damp
more
In nine
1965);
(5th
Mfg. Co. v.
Film
Cir.
Universal
McKinlay v. Morr
ship’s hold. See
inside a
is
Cir.1914)
577,
(2d
n. 1
Copperman, 218 F.
580
345;
343,
ish,
(21 How.)
100
16 L.Ed.
U.S.
62
film);
(conditions
storing
Wills v. Scran-
for
Martha,
(12
(1858)
53 U.S.
(syllabus); The
181,
Co.,
F.
Storage
153
& Warehouse
ton Cold
(1851);
347, 355,
How.)
Clark
mosphere App.1903) is localized and concurring); Sim being Co., of its effect discussed because on mons v. Prudential Ins. 269 A.D. 1048, 578, activities that occur outdoors.3 Two 58 N.Y.S.2d 579 (N.Y.App.Div. 1945). third, cited above the cases 'involve insurance In a ceiling damaged (and defendant), language same and when it was exposed to the “damp outdoor atmosphere” both use Definition 5.4 because windows kept were Inc., open. Cackowski v. A. Halprin, Jack remain, In the three cases that the ref- 631, (Conn. 649, 133 Conn. 53 A.2d 651 erence relates to damp 1947) added). (emphasis them, general. weather in In two of how- ever, atmosphere,” the reference is to “the These cases thus show that is unrea- a distinction that will be discussed more sonable to define “dampness of atmo- Co., Dry below. v. Jones sphere” Reames Goods in a way that excludes Definition 935, (Mo.Ct. 396, Mo.App. 99 73 S.W. 5.5 The court’s opinion given me no (2d 1902) 439, (telegraph (local (Md.Ct.App.1908) Cir. coils immersed in oil weather af protect damp atmosphere); train); fecting Cushard, them from sound Coop. Kamo Elec. v. Nippon Egasco Fire v. & Marine Ins. Co. M.V. (Mo.Ct.App. 416 S.W.2d Star, (S.D.N.Y. F.Supp. 1967) (conditions 166 n. 3 power affecting near line 1995) (paper ship damaged by “being in a potential arcing); City Person Inde- very humid/damp/moist atmosphere”); Co pendence, (Mo.Ct.App. 114 S.W.2d Rutherford, lumbia Chem. Works v. 58 F. 1938) (local stink); allowing weather for extra *15 (C.C.E.D.N.Y.1893)(effect detergent); 789 Co., 473, Mo.App. Palmer v. Reeves& 139 122 Mencken, 1119, Freeman & Turner News Co. v. 115 1909) (local S.W. (Mo.Ct.App. 1121 1017, 369, (Ga.1902) (local Ga. conditions; 42 S.E. 371 clover); affecting weather Kill v. Summitt tobacco; bugs worms and Co., 197, 346, Drilling 153 Okla. 5 P.2d 351 indoors); City could also be Thomas v. (Okla.1931) (conditions rig); near oil of Lieual Somerset, 420, (in (Ky.Ct.1906) 97 S.W. 420 446, 1022, Mosgrove, len v. 37 Or. 61 P. 1024 booth). candy side (Ore. 1900) (local affecting ignit- weather fire ing); Union Planters’ Bank & Trust Co. v. 3.Shinrone, Inc. v. Insurance Co. North Co., 649, Memphis Hotel 124 Xenn. S.W. 139 America, 715, (8th 570 F.2d 716 — 17 Cir. 715, (local (Tenn.1911) causing 716 weather 1978) (muddy snowy conditions that settle). soot from next door to calves); killed several & Louisville Cincinnati Co., 300, Packet Co. v. United Coal 223 F. 301 Shinrone, Co., 4. See Inc. v. Insurance 570 F.2d (6th 1915) (local affecting Cir. weather visibili (8th 1978) (assumed 715 Cir. apply to to mud Receivers, ty ship); from Musselwhite v. 17 F. calves, dy snowy conditions that killed several 1882) (No. (C.C.E.D.Va. 9972) (local Cas. 1070 though jury insured); held in favor of the fire) affecting spark (sylla weather bus); railroad Yates, Surety Aetna Cas. & Co. v. 344 F.2d Co., Light v. Turbeville Mobile & R.R. 939, (5th 1965) ("dampness 941 Cir. of atmo 91, 519, (Ala. 1930) (lo- 221 Ala. 127 So. 523 sphere produced the condition in which affecting driving); cal weather Central v. R.R. ”). fungi grow.... could Denson, 774, 1039, (Ga. 84 Ga. S.E. 11 1041 1890) (local weather; affecting sound of train); 5. Cincinnati, For those Cleveland, who consider case law too arcane Chicago & St. terms, Scantland, 488, to serve to define a search Ry. of the West- Louis Co. v. 151 Ind. 51 1068, (Ind.1898) (local weather; law news newspapers database of N.E. American 1070 yields affecting settling sparks); many similar results. There are Chicago too & Erie 393, analyze, to Kreig, Ind.App. appearing R.R. Co. articles but those v. 22 53 N.E. 1033, 1899) (local provide 1998—8 (Ind.App. represen- 1036 articles in weather af total — fecting sample tative settling sparks); Manning roughly parallel usage v. Forten Co., berry 713, them, Drilling (La.Ct. 107 in the case law. So.2d 717 In four of the re- (local App.1958) affecting "atmosphere” driving); clearly weather ferred-to is indoors. Fitzpatrick City Ry., v. Relatively Kansas Southern See Bermuda's Considered 347 Safe for 57, 560, (Mo.1940) Women, (at 6, Mo. 146 S.W.2d 562 Dec. 1998 at TR3 Bee, Sacramento mo (mold sphere “damp, foggy rooms); smoky problems in hotel Sam vicinity bridge Henderson, crossing, Nuts, of the Helping else- Hands Are Shelter’s clear”); Bolts, 5, 1998, where Empire Holman v. Athens Greensboro News & Rec., June Co., 345, 207, Laundry branch); 149 Ga. 100 (describing S.E. 209 at B3 a YMCA Scott (Ga.1919) (local causing weather Hilyard, Boyhood soot from Olympic Brush with Skater settle); Memories, next door to Lasting Baltimore & Ohio R.R. Creates Peoria J. Mar. Star., Black, 642, 29, 1998, Co. v. (inside rink); State ex rel. 107 Md. 69 A. at Emerging A1 ice
359 1324, Inc., 39 F.3d Indus. Co. v. S-W Cas. re- With otherwise. conclude reason Cir.1994) (holding 20,1 1336 page at argument court’s spect liability for against protect was meant not between the conflict reiterate governmental neighbors damages It definitions. exclusive mutually two injuries indoor agencies, not environmental means “atmosphere” says Blaine not that materials). Indeed, pollution toxic from says that air and the outside policies involving general-liability cases particu- air around inside only the means discharges “into exclusions INA with Instead, is that the conflict place. lar uni fairly lb Definition atmosphere” use air that can mean says that Inn, See, Inc. Farm e.g., formly. Gamble inside, Blaine whereas outside either 501, Co., Pa.Super. 656 440 Ins. v. Selective interpreta- if a only prevail can 142, (Pa.Super.1995); Continen 145 A.2d altogether. air indoor to exclude tion is Corp., Rapid-American v. Cas. Co. cited tal authorities dichotomy, the On 966, 640, 609 N.E.2d 593 N.Y.S.2d ambigui- N.Y.2d is no that there the view support (N.Y.1993); Owens-Corning Fi 506, 512 ty- Co., 74 Corp. v. Allstate Ins. Ohio berglas made Contrary to (Ohio 746, 144, 660 N.E.2d Misc.2d 9, inter- below, INA’s page cited Blaine & Com.Pl.1993); Fidelity States United not language own does of its pretation Co., 144 Insulation Co. v. Wilkin Guar. does INA nor damage, water exclude all 926, 578 N.E.2d Ill.Dec. Ill.2d a fire- played If so. someone wish do (Ill.1991); v. Essex Ins. Co. see also ifor building, on the walls hose Mills, Inc., So.2d Avondale hydrant a broken from spurting water (Ala.1994); Regents Bd. Uni 1341-42 rendering the damage, even caused the Royal Ins. Co. versity Minnesota language INA’s “damp,” walls (Minn. America, 892-93 517 N.W.2d However, cho- had INA coverage. exclude 1994). court, by the language suggested sen *16 16, damage would such at pages context, 15— notes, this But, invoking as INA express Thus, if wanted to excluded. general-liability involve case does not wishes, lan- carefully considered its given for dam- coverage is in which policy, nicely. job does the guage chose Rather, it is an upon others. inflicted age damage suffered covering all-risk
D in- an “internal” This makes insured. appro- more “atmosphere” terpretation of further explain to I would like Finally, Furthermore, here is the exclusion priate. argument Blaine’s why the remainder atmosphere, into the discharges for me, argu- why INA’s to unconvincing outdoors, rather for but implies pol- Blaine which availing. cites are more ments is neutral which atmosphere, dampness of into the discharges in which lution cases this, Aetna to a case closer In best. into at limited to those have been Yates, 939 F.2d v. & Sur. Co. See, Mut. Cas. Lumbermen’s e.g., outside am. (and perhaps 2, area large geographical Datafile, Daily, Feb. Bus. Markets damp, atmo- solemn chiffon). metaphorically (conditions A fifth producing for —"the winter”). Rof early sphere Dreher, Beantown's Mary Frick- See localized weather. refers to Keeps Beat Comedy's Bossa Nova er, Muck and Sad- Retrieving Belongings in 6, Sept. Beating, Rosa, Cal.), Lonely Hearts ness, (Santa Post, Feb. York New Democrat Press The last concerns 37. article at 9, 1998, (local canyon). weather at Al .1998 pro Chicago Bears football sorry state of general, but with weather sixth deals Isaacson, Sillick, Bears See Melissa team. atmosphere.” See John Suffer "the refers to Disaster; to Sloppiness Hands Win Double Little Hay Shines Making While the Sun Offers 9, Sports 1 Rams, at June, Dryness Trib., Nov. Compensate Chic. Buffalo for dreary atmo- weather, "damp and (referring 1998, (general at C2 News, June be- Field brought about Soldier sphere" atmosphere"). "dampness of the says sloppy play). surrounding cause of Bears’ air Only concerns one Cir.1965), the Fifth Circuit considered the from its reversal of the judgment in favor policy. exclusions in an all-risk poli- of INA.
cyholder in the case suffered when inadequate combination of ventilation Ill conditioning and air caused condensation I concur with the majority’s rejection of rotting space. a crawl See id. at INA’s cross-appeal. 940. An for “[l]oss caused rot, ... mould or fungi; dampness
of atmosphere, temperature; extremes of
contamination; vermin, termites, moths or
other insects” apply, was held to even conjunction
when read in with an un-exclu- WILLIAMS, Robert Plaintiff- sion for water damage, and even with am- Appellant, biguities against construed the insurer.
Id. at 940-41. The court relied on both “dampness the “rot” and atmosphere” MOLPUS, al., Howard et Defendants- (without provisions, given and took as a Appellees. so) saying that “atmosphere” in- included 941; door air. Id. at see also Clark v. No. 97-2148. Barnwell, (12 How.) 272, 283, 53 U.S. United Appeals, States Court of (1851) (referring L.Ed. 985 hold). Sixth Circuit. atmosphere” ship’s in a To the extent that Blaine’s Argued Dec. 1998. from the pollution proves cases anything, Decided March 1999. it proves that context is essential. It is no that all accident of Blaine’s cases involve Rehearing and Rehearing En Banc third-party liability discharges of pollu- Denied April 1999.* tion. It is also no that all accident Blaine’s cases involve policies atmosphere” refer “the (implying
the singularity of the OED’s definition lb than multiplicitous
rather the more defini- 5) and none of which “damp- refer to
ness.” If the this case had ex- *17 “pollution
cluded from released
into the atmosphere,” agree I would with cites,
the cases that Blaine and vote to
hold that “the atmosphere” could reason-
ably interpreted as meaning only the
air building outside the in question. But
the policy say does not that. It speaks of context,
a different dampness, one of majority
Blaine and the are extending an
interpretation context, from the pollution
where makes sense and has neatly been
contained until today, to the dampness
context, where it makes no sense. majority is propounding an unrea- interpretation
sonable of the “dampness of exclusion,
atmosphere” and I must dissent
* Judge grant Norris rehearing for the reasons stated in his dissent.