Federal Insurance v. Stroh Brewing Co.

FLAUM, Circuit Judge,

dissenting.

The majority informs us that “time was” when “ ‘discrimination’ might have brought immediately to mind charging one person *572more than another for the same product.” See Maj. Op. at 564-565. However, as the majority acknowledges, the meaning of “discrimination” that is likely to come to mind today (Heileman’s policy covered the years 1992-1994) is the differential treatment of persons on the basis of some personal characteristic, such as race, age, sex, handicap, or nationality — not the pricing of one’s products in a manner injurious to competition. In my judgment, this “plain and ordinary meaning” should not be set aside. See Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind.1992). Nor should the context in which the word “discrimination” is used in the policy, as both shed light on the intent of the parties to this contract. See Monroe Guar. Ins. Co. v. Campos, 582 N.E.2d 865, 870 (Ind.Ct.App.1991). It is, after all, the parties’ intent that this court must “ascertain and enforce.” See id. Because I am unable to conclude that Federal intended to provide (or that Heileman believed it had purchased) coverage for price discrimination claims, I respectfully dissent.

In interpreting insurance contracts, courts are frequently called upon to choose between a narrow and a broad construction of a policy provision. Due to the interpretive tool of construing contracts against the drafter, the broad interpretation is often the favored one. “However, this rule does not require ... eourt[s] to abandon all common sense, and blindly afford coverage where it is questionable that any coverage was so intended.” Town & Country Mut. Ins. Co. v. Owens, 143 Ind.App. 522, 241 N.E.2d 368, 370 (1968) (holding that “journey of seventeen blocks from one part of a small town to another was not a ‘trip,’ ” despite fact that dictionary defines “trip” as “going from one place to another”). When construing insurance contracts, courts must bear in mind the “traditional caveat that in choosing between a broad or narrow construction of a word or phrase the choices are limited to the reasonable interpretation of the term as used.” Aetna Cas. & Sur. Co. v. Crafton, 551 N.E.2d 893, 895 (Ind.Ct.App.1990) (emphasis in original).

The “as used” caveat is important. The word “discrimination” which we are asked to interpret is not written on a blank page; it is part of an insurance contract. As used in this policy, the word “discrimination” cannot reasonably be given the expansive construction the majority suggests. The term appears in the following definition of “Personal Injury.”

a. false arrest, false imprisonment, wrongful eviction, wrongful entry, wrongful detention or malicious prosecution;
b. libel, slander, defamation of character, or invasion of the rights of privacy, unless arising out of advertising activities;
c. humiliation or discrimination____

(emphasis added). An examination of this definition reveals that related claims have been grouped together in subsections. I find it significant that the term “discrimination” has as its companion “humiliation”1 (rather than say “price-fixing” or even “unfair competition”). As we explained in a similar context, “[a] word sometimes picks up meaning from its neighbors.” See Curtis-Universal, Inc. v. Sheboygan Emergency Med. Servs., Inc., 43 F.3d 1119, 1124 (7th Cir.1994) (holding that “unfair competition” should not be interpreted “as broadly as it might be interpreted in the law of business torts” because “all the other terms in the list of wrongs insured under the rubric of ‘advertising injury1 involved the misuse of information”). “Discrimination” (when given its plain and ordinary meaning) and “humiliation” are both claims involving the prejudicial or unfavorable treatment of persons. In my view, a straightforward reading would suggest that an antitrust claim arising from uncompetitive pricing practices is not the type of claim for which this contract language was designed to provide coverage. In focusing on whether *573“price discrimination” is cross-referenced in the definition of “discrimination” in Black’s Law Dictionary, the majority appears to have lost sight of the proverbial forest; namely, whether the parties, through this particular provision, intended to provide coverage for price discrimination claims.

As this court’s decision in Curtis-Universal, Inc. v. Sheboygan Emergency Med. Servs., Inc., 43 F.3d 1119 (7th Cir.1994), demonstrates, courts must look beyond dictionary definitions of policy terms. The issue in Curtis-Universal was whether a policy that indemnified the insured against claims arising from “unfair competition” covered claims alleging violations of the antitrust laws. This court found that, although “unfair competition” has been interpreted broadly “to encompass everything forbidden by federal antitrust law and then some,” this broad interpretation could not have been intended by the parties. See id. at 1123. Looking to the context in which the term was used, and relying on a measure of common sense, the court concluded that

the broad interpretation cannot be right for the insurance policy in our case. It would turn insurance against liability for “advertising injury” into insurance against liability for antitrust violations, provided only that the violations arose out of the insured’s “advertising activities”____ As far as we have been able to determine, insurance companies' will not insure against liability for antitrust violations.... [W]e find it highly implausible to suppose “unfair competition” in a list of torts otherwise concerned mainly with harmful speech in various forms (defamation, invasion of the right of privacy, copyright infringement) would sweep under the policy a general, albeit prima facie, liability for antitrust damages.

Id. Given that insurance coverage is not typically provided for antitrust damages, it seems too facile to conclude that, merely because the pricing practice forbidden by the Robinson-Patman Act is fortuitously referred to as “price discrimination” (rather than say “price differentiation”), coverage was intended in the instant case. This is especially true when, as in Curtis-Universal and in the instant case, the context in which the disputed term appears further suggests that a narrower reading of the policy is appropriate.

Nor can I agree with the majority that finding coverage for antitrust claims under this provision is in accord with the reasonable expectations of the parties. The majority reasons that, because price discrimination claims are common within the beer industry, Heileman would have reasonably believed that it was purchasing coverage for this type of claim. I submit that the more plausible assumption, given that these claims are not uncommon, is that the parties would have addressed the issue of antitrust coverage in a more direct manner if they had in fact intended to do so. One would expect recurring claims to be addressed with a certain degree of precision and clarity. Relying upon the placement of the phrase “humiliation or discrimination” in the “Personal Injury” section of the policy is a highly unusual, if not obtuse, means of indemnifying one’s company against antitrust suits of this nature.

Finally, the very nature of personal injury coverage counsels against “shoehorning” Heileman’s price discrimination claim into the personal injury section of this policy. As one commentator has explained,

[ujnlike most liability coverages, which are written in broad, all-risk language, advertising injury coverage (and personal injury coverage ... ) are both specified risk coverages. The policy terms are designed to provide coverage for the enumerated claims only and not to provide generalized liability coverage____ A highly attenuated connection to advertising is not sufficient to create coverage. Thus, for example, courts have been reluctant to consider patent or copyright infringement claims as falling within advertising injury coverage merely because the allegedly infringing good was advertised, a view that makes sense.

Jeffrey W. Stempel, Interpretation of Insurance Contracts § T9.2, at 158 (1996 Supp.). For this reason, courts in general “have taken a relatively strict view of the [personal injury] coverage, reading the enumerated items strictly and construing other actions *574according to their synonymousness or ‘fit’ with covered torts.” Id. at 163. That Federal’s policy is an “umbrella” policy does not change the limited nature of personal injury coverage. While certain umbrella policies undoubtedly serve the purpose of filling “unanticipated gaps” and shifting “away from the insured the burden of choosing the risks to which the insured remains exposed,” see Maj. Op. at 567, the personal injury coverage at issue in this case provides primary liability coverage for certain enumerated claims only. Because I cannot find “price discrimination” among these enumerated claims, I would affirm the judgment of the district court granting summary judgment in favor of Federal.2

. The majority chooses not to discuss the context of the word "discrimination” within the contract by concluding that Federal has failed to argue this point on appeal. By my reading, Federal’s argument that a reasonable person would not interpret "discrimination,” as used in its policy, to include "price discrimination” sufficiently preserves this issue. In any event, nothing, including the district court's rejection of this argument, precludes this court from taking note of the placement of the disputed term within the contract, as our review of this legal issue is de novo.

. Having concluded that Federal's policy does not cover Heileman’s claim, I express no opinion regarding the majority’s analysis of the policy’s exclusionary provision.