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It’s not often a phrase such as “litigate by day and copulate by night” appears in decisions of the 11th U.S. Circuit Court of Appeals. But in his dissenting opinion in Continental Insurance Co. v. Roberts, No. 04-12566, that is how Senior Judge James C. Hill described a Florida couple who were living together but wanted the man to get the insurance benefits reserved for someone who was not a member of the woman’s household. The case stemmed from a 2001 accident in which Stephen Gimopoulos dove from a boat owned by Polly Roberts into shallow water, causing him to become a quadriplegic, according to the court decision. The couple had lived together for 20 months prior to the accident in “an intimate relationship,” the decision said. The legal trouble arose when Gimopoulos sought to claim the maximum benefit, $100,000, from Roberts’ insurer, Continental. Citing a clause that barred members of the same household from receiving the maximum, Continental instead offered $25,000, saying a provision limited any claim by a “family member” to that amount. The policy contained language defining “family member” as “any member of the same household.” When Gimopoulos refused that offer, Continental asked the U.S. District Court for the Middle District of Florida to declare that Gimopoulos was entitled only to $25,000. But a federal judge ruled that the term “household” was ambiguous both by Florida case-law precedent, and as defined in standard and legal dictionaries. Since precedent required “ambiguous” insurance contracts be interpreted in favor of the insured, the judge ruled against Continental, which appealed to the 11th Circuit. SETUP SUSPECTED At oral argument, Hill sparred in particular with Judge Edward E. Carnes, who was on the panel with Stanley F. Birch Jr., attorneys in the case said. “They were diametrically opposed,” said Continental’s lawyer, Allen K. Von Spiegelfeld, of Tampa, Fla.’s Fowler White Boggs Banker. Hill “was very adamant that he felt the whole thing was a setup,” asking Roberts and Gimopoulos’ lawyers whether they had malpractice insurance at one point, said Von Spiegelfeld. The couple’s lawyers, Amy E. Stoll and Thomas G. Long of Tampa’s Barnett Bolt Kirkwood & Long, agreed that the 81-year-old Hill came out swinging. “He’s an older guy who sees things kind of differently,” said Long. “I think he’s just one of these judges who thinks there should be mommies and daddies in a household, and that’s how the world should be.” Continental “tried to make it some big social issue,” Stoll added, “and it’s not.” Carnes and Birch formed a majority to affirm the lower court’s decision that favored the couple, issuing a ruling on June 3. Carnes wrote that five Florida appeals courts had noted that household members have “‘close ties of kinship’ — a relationship by blood, marriage or adoption.” But all the couple had to prove, Carnes added, was that the term “household” was ambiguous enough for the word to be construed in favor of the insured. Carnes rejected Continental’s request that the panel ask the Florida Supreme Court for its definition of the word “household,” concluding, “We don’t need to impose on the Florida Supreme Court’s time with that question.” AN IMPORTANT PIECE OF PAPER Hill, named to the federal appellate bench by President Ford in 1976, launched a vigorous dissent. “[I]t appears that Mr. Gimopoulos and Ms. Roberts have successfully attached more importance to a single piece of paper — a marriage license — than they have ever before,” wrote Hill. “For quite some time, they have dwelt under the same roof. They have bedded down together in the same bed. … The couple apparently felt that they did not need this single piece of paper to enjoy all the bliss of conjugal life. Nevertheless, they earnestly maintain that a marriage license vel non is of great importance to the Continental Insurance Company.” Noting that Gimopoulos had sued Roberts — and that Roberts’ counsel had advised her to “confess judgment” in that action — in their efforts to extract money from the insurer, Hill quoted Holt v. Holt, 77 F2d 538, a 1935 appellate decision from the District of Columbia. “In essence,” he wrote, “they undertake to �litigate by day and copulate by night.’” Hill also slyly chided the majority. “Our panel complains that �household’ is not sufficiently defined by Continental,” he wrote. “So, in a burst of insurance policy draftsmanship, we undertake to define the term for the company.” Noting that Florida’s bad-faith statutes are very strict, Von Spiegelfeld, Continental’s lawyer, said that there’s far more at stake than the original $75,000 difference Gimopoulos had sought. “It soon became apparent that they were after more than a million [dollars],” he said, adding that the company likely will seek an en banc opinion. “This is exactly why that clause is in there,” he said.

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