March 13, 2019 Articles

Rethinking Federal Appellate Court Legerdemain in Analyzing the Scope of “Potential Coverage”

A modest proposal for changes designed to encourage panels to not render decisions based on “fresh” cases without appropriate input from the parties

by David A. Gauntlett

“Legerdemain” is from the Middle French. It means a “sleight of hand.” In this article, it describes a judicial decision based principally on legal authority that neither the parties nor the court addressed, prior to the issuance of the court’s decision. Its use is surprisingly prevalent when courts address disputes under Coverage “B.” Indeed, coverage cases requiring appellate courts to address novel legal issues are especially prevalent in analysis of Coverage “B” offenses. See, Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 744, 746-47 (3d Cir. (Pa.) 1999) (“The definition of ‘advertising injury’ in standard business insurance policies has troubled and in some cases confounded courts for years.”).

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