Judges Tout Wikipedia in ‘Jet Ski’ Exclusion Ambiguity

By Don Jergler | August 25, 2012

A Utah Court of Appeals ruled the term “jet ski” to be ambiguous as an exclusion in a homeowners’ policy, and to back up its decision the court used the popular reference website Wikipedia, calling it a “great repository of contemporary wisdom.”

The court overturned the decision that ruled against a pair of men allegedly injured on a watercraft who sued their homeowners insurer, Fire Insurance Exchange, which refused their claim because the policy excluded, among other thing, injuries suffered while on a “jet ski.” The case was Fire Insurance Exchange vs. Robert Allen Oltmanns and Brady Blackner.

The men were injured while riding Oltmanns’ personal watercraft, and they filed a claim under Oltmann’s homeowners’ insurance policy.

The appellate finding, filed on Aug. 16, states that Utah courts have long held that “‘insurance policies should be construed liberally in favor of the insured and their beneficiaries so as to promote and not defeat the purposes of insurance.” It sided with attorneys for defendants who argued the term “jet ski” was ambiguous because that refers to the trademarked name of a watercraft manufactured by Kawasaki.

“Basically, then, the insurer was imprecise in using the term ‘jet ski’ in its policy,” the court stated. “Even discounting the bizarre possibility that it meant to refer only to one Kawasaki watercraft model, it still cannot be definitively said what the insurer intended: Did it mean all manner of personal watercraft? Or did it mean only the stand‐up variety? The provision, then, is ambiguous as a matter of law.”

To back up their judgment the court used Wikipedia, which it cited as a “great repository of contemporary wisdom.”

The court in its decision also defended its use of Wikipedia.

“In the past, we might have hesitated to cite Wikipedia in a judicial opinion given its reputation—perhaps not well deserved—for unreliability,” the court stated. “But the increasing trend of using Wikipedia in judicial opinions over the last decade seems to demonstrate a growing recognition of its value in some contexts, as noted in one 2010 article that found that by that year Wikipedia had been cited in over four hundred judicial opinions.”

“By far the most interesting thing is the Wikipedia references,” said Valerie Moore, with Haight Brown & Bonesteel in Los Angeles.

Moore, who does coverage work and bad faith defense primarily for insurance companies in all lines, including personal and commercial, believes the use of Wikipedia in decisions will continue to rise.

“I think we might see more of this,” she said.

As for referencing Wikipedia as “great,” that’s a matter of opinion.

“At first I thought they were being tongue and cheek,” she said.

In terms of the decision itself, the court used the contract interpretation laws of Utah, which are virtually the same in most states, Moore noted.

“They’re just confirming that when you as an insurer are the party that drafted the policy,” she said. “There’s no room for bargaining when you’re an insurer. Exclusions are very narrowly read by all courts.”

She added, “I believe a California court would find the same thing. And I think that almost any other court would too. I think that a lot of policies are going to be changed to say ‘personal watercraft.’”

Moore noted the court did temper it’s deference to Wikipedia, calling for its use in some, but not all situations.

The opinion, which cited a 2007 argument by Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit in Chicago in favor of Wikipedia as a resource, read like an advertisement for using Wikipedia in most instances.

“While a prudent person would avoid a surgeon who bases his or her understanding of complicated medical procedures on an online source whose contributors range from expert scholars to internet trolls, where an understanding of the vernacular or colloquial is key to the resolution of a case, Judge Posner is correct that Wikipedia is tough to beat,” the opinion stated.

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