Last month, Justice Don Willett dissented from the Texas Supreme Court’s denial of a petition for review in El-Ali v. State [enhanced version available to lexis.com subscribers]. The case involved the Texas civil forfeiture statute. In doing so, Justice Willett observed that “[a] generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”
Alice in Wonderland is considered one of the best examples of the literary nonsense genre. It has become the proverbial analogy to something that doesn’t make sense. It even has a dictionary entry, meaning “suitable to a world of fantasy or illusion,” according to the folks at Merriam-Webster.
It turns out that Justice Willett isn’t the only one to see Alice in Wonderland as an appropriate way to describe something in the legal system as suitable to a world of fantasy or illusion. In fact, this has been going on as far back as 1929. And there have been about 700 more cases since then where a court saw something as sufficiently out of whack to warrant an analogy to Alice’s trip down the rabbit hole. Needless to say, that speaks volumes about the system.
Here are some examples where a court or party in a case needed to resort to Alice in Wonderland to make a point about something just not making sense.
The first time was Tall Timber Lumber Co. v. C.I.R., 16 B.T.A. 300 (Board of Tax Appeals 1929) [enhanced version available to lexis.com subscribers], (“Invested capital is a statutory creation, the nature of which is at times so confusing that a Senator of the United States recently, while speaking to the Senate, compared the statute to ‘Alice’s Adventures in Wonderland.’”).
Here are a few more good examples of judicial opinions – these involving insurance coverage -- that engaged in Alice in Wonderlanding:
SR Intern. Business Ins. Co. Ltd. v. World Trade Center Properties, LLC, 445 F. Supp. 2d 320 (S.D.N.Y. 2006) [enhanced version available to lexis.com subscribers], (“When the Insurers focus on broad principles and not on the actual words at hand, these broad principles become the grin on the Cheshire cat: When the Insurers are all done, the cat-the text of the Travelers policy-disappears, and all that is left is the grin. Lewis Carroll, Alice in Wonderland 67 (Grosset & Dunlap 1972) (1865). That is no way to read an insurance policy, or indeed any other document.”).
Continental Western Ins. Co. v. Pimentel & Sons Guitar Makers, Inc., (D.N.M. 2006) (“When faced with this ‘Alice in Wonderland’ area of the law, Continental chose not to define the terms, ‘trademark’ and ‘other intellectual property rights,’ in its policy. Now, Continental argues that the terms trademark and trade name ‘clearly’ apply to the claims at hand.”).
Hartford Ins. Co. of the Midwest v. Minagorri, 675 So. 2d 142 (Fla. Ct. App. 1996) [enhanced version available to lexis.com subscribers], (“By contrast, the tortfeasor in the present case had coverage that was lower than Minagorri’s limits. Although Hartford’s argument engages in the Alice-in-Wonderland practice of departing from the usual meaning of words, it does not take a leap through the looking-glass for this Court to conclude that the tortfeasor who injured Minagorri was ‘uninsured’ to the extent those injuries exceeded the policy limits.”).Taylor Morrison Services, Inc. v. HDI-Gerling America Ins. Co., 746 S.E.2d 587 (Ga. 2013) [enhanced version available to lexis.com subscribers], (“Humpty Dumpty used a word to mean ‘just what [he chose] it to mean—neither more nor less,’ and [insurers], too, are free to be unorthodox, but when they seek to use a term in an unusual way, they need to clearly signify the unusual sense in which the word is used. Cf. Lopez v. Gonzales, 549 U.S. 47, 54–55(II), 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) [enhanced version available to lexis.com subscribers], (citing L. Carroll, ALICE IN WONDERLAND and Through the Looking Glass at 198 (Messner 1982)).”).
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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