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Legend has it that the publication of The Great Gatsby pushed Ernest Hemingway into a deep depression. Hemingway is supposed to have confided to friends that he found it difficult to write after reading Gatsby because it had been his dream to write The Great American Novel and F. Scott Fitzgerald had beaten him to it. Now I know how he felt. My dream was less Homeric than Hemingway’s. I figured with my talent, I needed to set the bar lower. Setting it on the ground seemed appropriate, but I was afraid if the bar were lying in the dirt, others might have difficulty recognizing it as a bar and trip over it, exposing me and the state to civil liability. So I set it about ankle-high. I set it not at the Great American Opinion nor the Great Californian Opinion. I wasn’t even going for the Great American Assumption-of-the-Risk Opinion or the Greatest Single Issue Discussion of the Last Decade. Those all seemed way too high for my modest leaping ability. I set my sights on the perfect paragraph. That seemed high enough to keep people from tripping over it and low enough to be doable. I figured I had 12 years before the electorate got wise to me and threw me out at the end of my term, and in that time I should be able to write one perfect paragraph. I may have been right. I’m halfway through my term now and haven’t done it yet, but I’ve written a few I liked that survived the California Supreme Court’s scythe. Another six years of honing my skills might have resulted in one perfect paragraph. But I’m afraid my heart’s not in it anymore. The Court of Appeals for the Eleventh Appellate District, in Portage County, Ohio, did it a few months ago. And now anything I wrote would be a pale imitation of that court’s Gatsby. CALL ME BESSIE Say what you will about me, I know when I’m beat. Here is the first paragraph of Mayor v. Wedding, 2003 WL 22931354 (Ohio App. 11 Dist.): “In this case we are called on to determine whether a cow is an uninsured motor vehicle under appellants’ insurance policy. We hold that it is not.” How could you improve on that? I mean, that’s “Call me Ishmael.” That’s “All happy families are happy alike, all unhappy families are unhappy in their own way.” That’s “It was a dark and stormy night . . .” No one could read that paragraph and stop. It is, therefore, not only the perfect paragraph, but also the perfect opening paragraph. My desolation is complete. Oh, sure, you could quibble about the “that” in the second sentence. It serves no obvious purpose and slows down the sentence. But then again, maybe you want to slow down the sentence at that point. Content this rare should be savored, and slowing the reader down there may provide an extra moment to luxuriate in the richness of two sentences of such magnificent lunacy. Maybe that “that” makes it the pluperfect paragraph. It’s truly inspiring to see colleagues rise to the level of their material. I mean, when you get a case that actually requires you to decide whether a cow is a motor vehicle, it deserves some beautiful writing, and this court — most notably, Judge Cynthia Westcott Rice, who authored the opinion — provided it right from the overture. COWS WALKIN’ HERE Why don’t I get cases like that? I mean, why besides the fact that in Orange County, Calif., we have more left-handed Nepalese communists than cows wandering the roads. That’s how this came up. William and Wendy Mayor were driving along Interstate 76 one evening when their car struck a cow owned by Thomas Wedding. Since Mr. Wedding and his cow were uninsured for this eventuality, the Mayors sued their own insurance carrier, contending that they should receive compensation under the uninsured motorist provision of their policy. The insurer, predictably hypertechnical and duplicitous, fell back on the picayune cavil that in order to have a motorist — insured or uninsured — you need a motor vehicle, and that the cow did not qualify. Apparently, large farm animals in the road are a recurring problem in Ohio. In deciding this case, the court was able to refer to not just one but two precedents in which motorists had tried similar arguments. Wow. You give me that kind of run support, I could throw a few shutouts myself. Honest. Two precedents. In 1984, the Ohio appellate courts decided State Automobile Mutual Insurance Co. v. Cleveland Carriage Co., 98 Ohio App. 3d 361, which, according to the Mayor court — and I have no reason to doubt them — held that a horse was not a motor vehicle. Then, extending that ruling to hitherto unimagined lengths, they decided in 1991 — in Wilbur v. Allstate Insurance Co., 11th Dist. No. 90-G-1000, 1991 WL 252851 — that attaching a buggy to the horse did not turn either the horse or the buggy into a motor vehicle. Ohio is obviously a tough place to be livestock, but apparently Shangri-La for appellate counsel. UTTERLY BOVINE So how, you might ask, did the courts in Ohio come to the conclusion that neither a horse nor a cow is a motor vehicle? How, you might wonder, did they sift through all the legal chaff to find the kernel of logic that separates warm-blooded barnyard animals from lifeless, steel motor vehicles? Go ahead, ask. Wonder. Was it by taking judicial notice of the conspicuous absence of motors in cows and horses? No, no. That would be way too easy. Nobody remembers opinions like that. No one writes odes to such prosaic analysis. Who would remember Willie Mays’ catch in the ’54 World Series if he’d turned at the last moment and caught the ball facing home plate? No, the Eleventh District went for the three-cushion, double-kiss into the side pocket, using a bridge to make the shot. Their analysis (drum roll, please): “There appears to be no dispute that there was a collision; the cow was not insured at the time of the collision; and that the cow caused the collision. The dispute in this case is whether the cow was a ‘land motor vehicle’ as defined in the policy. While a cow is designed for operation on land, we do not believe a cow is a ‘motor vehicle.’ The policy at issue does not separately define ‘motor vehicle’; therefore we must look to the common, ordinary meaning of this term. “The American Heritage Dictionary defines ‘motor vehicle’ as ‘a self-propelled, wheeled conveyance that does not run on rails.’ A cow is self-propelled, does not run on rails, and could be used as a conveyance; however, there is no indication in the record that this particular cow had wheels. Therefore, it was not a motor vehicle and thus was not a ‘land motor vehicle’ as defined in the policy. The trial court properly found that appellants were not entitled to uninsured motorist coverage.” That’s right. The reasoning process wasn’t that you can’t be a motor vehicle if you don’t have a motor. It was that you can’t be a motor vehicle if you don’t have wheels! Lord help the people of Ohio if their legislature ever passes laws pertaining to “wheeled vehicles.” The whole state appellate system will herniate trying to figure out how to define “wheeled vehicles” now that they’ve already defined “motor vehicles” as vehicles with wheels. MILKING IT Actually, I never met these people, but my instinct is that Judge Rice and her concurring colleagues, Judges William O’Neill and Diane Grendell, are having more fun than any of us ever suspected. And I don’t for a moment begrudge them that fun. In fact, with similar inspiration — and enough alcoholic stimulation — my benchmates and I could probably come up with some pretty fancy ways to differentiate cows from automobiles, or ducks from tangerines, or sheep from shinola. We might even find a way to match Mayor v. Wedding. But I know we couldn’t top it. Because I know that, confronted with the same case, I would have failed to rise to the material. I know I would not have produced the perfect paragraph. My opinion would have recited the facts in a single paragraph and then held, “Hello? It’s a cow.” That kind of work does not get you the office next to the chief justice. But, then again, I still have six years left. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]. This article previously appeared in The Recorder, an American Lawyer Media newspaper.

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