Writing insurance law textbooks (Casualty Insurance Claims, Excess Liability – Rights and Duties of Commercial Risk Insureds and Insurers, and a new edition of Casualty Fire & Marine Investigation Checklists) it is occasionally possible to predict what a court might rule, or what might change on appeal. In preparing for the new edition of Checklists, I included an instruction regarding the definition of a “named insured” in personal liability (auto, homeowners) forms, when the definition includes a “spouse.” But with the states in turmoil over gay marriage at the time, just who is a “spouse” if one was married in a state allowing gay marriage, but had a claim in a state that did not recognize such marriages? It was one of those fickle pickles of insurance policy language.

No sooner had the text been submitted than the Roberts Court ruled in favor of gay marriage, now universal in all states. Hence my explanatory paragraph was moot. I contacted my editor at Thomson Reuters West, and we elected to delete it. He then checked with John DiMugno (my co-editor on Catastrophe Claims: Insurance Coverage for Natural and Man-made Disasters and the editor of Insurance Litigation Reporter).

John replied, “As to cases addressing whether a same sex spouse qualifies as an insured under the omnibus clause of an auto or homeowners policy, I don't think there are any [court cases.] I don't recall seeing one, and I at least look at every insurance law decision added to the Westlaw database on a daily basis. If I saw one, I would cover it in ILR. I'm sure the reason no case law exists (at least to my knowledge) is that insurers have not questioned their obligation to cover same-sex spouses in states that recognize gay marriage. If insurers did contest coverage, they would surely lose, given the universally recognized principle that ambiguities in an insurance policy must be construed in favor of coverage. With respect to other types of insurance, while the Westlaw database contains many decisions addressing the right of same sex couples to receive employment-related spousal benefits, no insurer (to my knowledge) has contested coverage once the employer elects to provide such benefits.”