Huber Engineered Woods, LLC v. Canal Insurance

JACKSON, Judge,

concurring in the result.

I concur in the result reached by the majority; however, I write separately to express my concern with respect to the precedential effect of the majority’s holding that “the term ‘act or omission’ is . . . reasonably susceptible to differing interpretations[,]” and is therefore “ambiguous.” The phrase “act or omission” is commonplace in legal practice and legal writing, and to hold that the phrase, standing alone, is ambiguous may have regrettable consequences.

Black’s Law Dictionary defines “act” as “[something done or performed” or “[t]he process of doing or performing; an occurrence that results from a person’s will being exerted on the external world[.]” Black’s Law Dictionary 27 (9th ed. 2009). Black’s Law Dictionary defines “omission” as “[a] failure to do something” or “[t]he act of leaving something out.” Black’s Law Dictionary 1197 (9th ed. 2009).

Other jurisdictions previously have interpreted provisions in other insurance contracts similar to the provision at issue here. See, e.g., Dillon Cos. Inc. v. Royal Indem. Co., 369 F. Supp. 2d 1277, 1287-88 (D. Kan. 2005); Vulcan Materials Co. v. Casualty Ins. Co., 723 F. Supp. 1263, 1265 (N.D. Ill. 1989); Maryland Cas. Co. v. Regis Ins. Co., 1997 WL 164268, 1997 U.S. Dist. LEXIS 4359 (E.D. Pa. Apr. 1, 1997); Garcia v. Federal Ins. Co., 969 So. 2d 288 (Fla. 2007); Transp. Ins. Co. v. George E. Failing Co., 691 S.W. 2d 71 (Tex. App. 1985). However, the fact that the underlying causes of action in those cases sounded in negligence does not render the term “act or omission” ambiguous by virtue of its being susceptible to differing interpretations, even though the phrase, standing alone, is broad enough to include causes of action other than negligence.

To the contrary, I believe that the phrase is clear and unambiguous. Maryland Cas. Co. correctly explained that

[tjhe plain or ordinary meaning of “act or omission” only requires the named insured to do or fail to do something. Negligence would require the named insured to do [or fail to do] something “which a reasonable [person] guided by those ordinary considerations which ordinarily regulate human affairs, would do [or would not do].”

Maryland Cas. Co., 1997 WL 164268, at *5, 1997 U.S. Dist. LEXIS 4359, at *13-14 (citation omitted). The phrase “act or omission,” is plain, but it is also broad and inclusive, and it therefore is applicable in various contexts — whether in a suit for negligence or for some other tort. The foregoing quotation from Maryland Cas. Co. simply illustrates that court’s analysis of the “plain and ordinary meaning of ‘act or omission’ ” with respect to the law of negligence, but the phrase is still clear and unambiguous, although it may be applied in other contexts.

I do not mean to imply that this Court should read any missing modifiers (e.g., “negligent” act or omission; “intentional” act or omission) into an insurance policy. Rather, it is incumbent upon defendant, as the drafter of the insurance policy, to limit the scope of policy coverage if, and as, it desires to do so with obvious due regard for established public policy and constraints on unconscionability. As the majority explains, “Defendant ‘enjoyed full contractual freedom when it issued the policy. Had [Defendant] elected to [limit the coverage in the manner it now argues,] it could have effected its purpose with trifling effort.’ ” See Farm Bureau Mut. Ins. Co. v. Waugh, 188 A.2d 889, 892 (Me. 1963) (citation omitted). Here, however, defendant failed to modify “act or omission,” and the plain meaning of the phrase is apparent, albeit broad.

Accordingly, I perceive a precedential danger in holding, without qualification, that the phrase “act or omission” is ambiguous, and I do not believe the phrase, standing alone, is ambiguous. However, because the plain meaning of the unmodified phrase “act or omission” contained within the policy already extends coverage to plaintiff without resorting to rules of construction attendant to a purported ambiguity, I join in the result reached in the majority as limited by this concurrence.