This is NOT a joke in Kansas!

Here's one for the insurance law casebooks! GEICO General Insurance Co. v. M.O., argued today before a three-judge panel of the 8th Circuit Court of Appeals. What follows is based on a report on the Fox News website.

FACTS: An arbitrator in Missouri found that M.O., a Missouri woman and her partner, Martin Brauner, had sex in his 2014 Genesis at least once in December 2017. M.O. asserted that Brauner negligently failed to tell her that he was infected with HPV and failed to use adequate protection to take proper precautions to prevent its transmission to M.O., who contracted the disease which eventually resulted in brain cancer.

In February 2021, M.O. filed a $1 million claim for "past and future medical expenses" and "mental and physical pain and suffering" against Brauner and his insurer, Maryland-based GEICO, claiming she should be compensated for bodily injury under the car's insurance policy. GEICO refused to pay the claim, arguing that the injury did not occur in the "normal" use of the automobile. 

LOWER COURT DECISION: In March 2023, U.S. District Judge Fernando Gaitan Jr. ruled in favour of GEICO, as follows. "Upon review of the parties' arguments, the court finds that consensual sexual relations inside a car do not constitute a 'use' of the automobile within the meaning of the subject policy."

ARGUMENT ON APPEAL: M.O. and Brauner appealed that decision to the Eighth Circuit, contending that the language of Brauner's insurance policy is so broad as to justify M.O.'s bodily injury claim. They cited the arbitrator'si award of $5.2 million to M.O. after finding Brauner liable for negligence. "Under the Geico Auto Policy, 'bodily injury means bodily injury to a person, including resulting sickness, disease or death.'"

They argued that since Brauner's insurance policy was issued in Kansas, any ambiguity in the policy should be decided in favour of the insureds, according to state law. "If the Policy is ambiguous, the Kansas law requires it be interpreted in favor of Brauner and coverage."

Attorneys for GEICO disagreed. "The Auto Policy does not cover liability for injury caused by the transmission of a sexually-transmitted disease merely on the basis that a covered vehicle was used as a shelter for, or as the situs of, sexual activity."

QUESTIONS FROM THE COURT:  U.S. Circuit Judges Steven Colloton, Michael Melloy and Raymond Gruender heard these arguments in court today. They questioned M.O.'s attorney, David Mayer, on whether his client's argument would make GEICO responsible for every unwanted pregnancy that might have occurred in an automobile. "I don't believe that's a cause of action but that's a good question," he responded, suggesting that pregnancies may not be "bodily injuries" but STDs and cancer are. "This was a bodily injury. This poor lady received cancer and it's terrible. It's a bad situation." 

GEICO attorney Douglas Beck told the court the insurance policy should only apply when "using an auto as an auto… for vehicular purposes." He pointed to case law in Kansas that denied people coverage for injuries that were "not identifiable with the normal use of an auto." 

But the panel was concerned that the meaning of "normal use of an auto" is ambiguous. "It's foreseeable that people are going to have sex in the car, I mean, that's clearly foreseeable, right?" one of the judges asked. Beck argued that a covered incident must be related to the "foreseeable and reasonable" use of a car, which is "not the same thing as conceivability." 

People hypothetically could use a car to have sex, he said, but that does not mean it is an appropriate use of the vehicle that should be covered by insurance. And by quibbling over the meaning of what is an "appropriate" use of a car, Beck told the judges, "you are turning what is an automobile policy into a general liability policy without restriction." 

The arguments concluded with no indication of when the Court may issue a decision.

What kind of "American" is Kamala Harris

Here we go again. Senator Kamala Harris' hat barely landed in the ring when questions arose about her citizenship. Not ethnicity, but citizenship. According to Wikipedia, Ms Harris "identifies as African-American", and appears to have a good claim to being Black American, Asian American, Jamaican American and Indo-American. (The last should not to be confused with "Indian American", or "Native American", as claimed by Fauxcahontas.) But is she "American American", in the sense of being entitled to a US passport, or to succeed Slow Joe Biden should he fall permanently asleep while occupying the Oval Office?

The question is citizenship. As Walt reported earlier this week, Ms Harris was undeniably born in the Excited States of America, Oakland CA. Her parents, Donald Harris (Jamaican) and Shyamala Gopalan (Indian) were students at UC Berkeley at the time. And therein lies the problem. Neither of her parents was a naturalized American citizen!

In "Some Questions for Kamala Harris About Eligibility", published in Newsweek (not known for being unfriendly to liberals) on August 12th, Dr John C. Eastman, Professor of Law at Chapman University, cites the 12th Amendment to the US Constitution, which provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." Article II of the Constitution specifies that "[n]o person except a natural born citizen...shall be eligible to the office of President."

Isn't Ms Harris, having been born in (ugh, brrr) Oakland in 1964, a natural born citizen from location of birth? The 14th Amendment says so, according to Snopes (there's a red flag, right there) and others, and the Supreme Court so held in the 1898 case of United States v Wong Kim Ark.

But... argues Prof Eastman, the 14th Amendment provides that "all persons born...in the United States, and subject to the jurisdiction thereof, are citizens." Those who claim that birth alone is sufficient overlook the second phrase. The person must also be "subject to the jurisdiction" of the United States, which means subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States. In other words, if the person is "just visiting", that doesn't count!

Wong Kim Ark is not to the contrary, adds Prof Eastman. At issue there was a child born to Chinese immigrants who had become lawful, permanent residents in the United States. "Domiciled" was the legally significant word used by SCOTUS. That was the extent of the Court's holding, as opposed to broader language that was non-binding dicta. Indeed, the professor says, "the Supreme Court has never held that anyone born on United States soil, no matter the circumstances of the parents, is automatically a US citizen."

If Ms Harris' parents were lawful permanent residents at the time of her birth, under the actual holding of Wong Kim Ark, she should be deemed a natural-born citizen at birth, and thus eligible for highest office. But if they were just temporary visitors -- in the country on student visas -- then "derivatively from her parents" Ms Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or power -- Jamaica and/or India -- and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.

It will be recalled, as Walt told you, that Ms Harris' mother moved, with her two daughters, to the English-speaking enclave of Westmount, Québec, Canada, where Ms Harris graduated from high school in 1981, when she was 17 years old. Under US law at the time, one or both of her parents would need to have become naturalized American citizens before Ms Harris' 16th birthday in order for her to become naturalized herself.

Donald Harris' bio page at Stanford University identifies his citizenship status as "Jamaica (by birth); U.S. (by naturalization)." But, says Prof Eastman, there is some dispute over whether he was in fact ever naturalized, and it is also unclear whether -- Shyamala Gopalan Harris -- ever became a naturalized citizen.

If neither was ever naturalized (or at least not before Ms Harris' 16th birthday), then she would have had to become naturalized herself in order to be a citizen. That does not appear to have ever happened, yet without it, she could not have been "nine Years a Citizen of the United States" before her election to the United States Senate.

Prof Eastman concedes that such arguments may be dismissed as mere lawyerly nitpicking. It would help, though, if Ms Harris and her parents (who have not yet been heard from, as nearly as I can tell), came forward with papers proving her eligibility, just as Barack Hussein Obama [Who? Ed.] eventually produced what purported to be a birth certificate proving that he was born in Hawaii to a parent who was... Well, I forget the rest, but Mr Obama eventually became POTUS, after which the question was moot.

Prof Eastman concedes that could well happen with Ms Harris too. In the US of A, just as in Russia and Zimbabwe, winning an election makes everything all right.

Disclaimer: Newsweek has added this footnote to Prof Eastman's article: Eastman ran in the 2010 Republican primary as a candidate for attorney general [of California]; he lost to Steve Cooley, who lost to Kamala Harris in the general election.

True laws (à la National Lampoon)

Remember National Lampoon, "The Humor Magazine for Adults"? In its heyday, from the beginning in 1970 through the mid-1980s, it had some excellent writing -- humour in a jugular vein [That was MAD. Ed.] -- by such fine funny fellows as Chris Beard, Doug Kenney, and the inimitable P.J. O'Rourke (my favourite).

Regular features included Letters from the Editor, Funny Pages (excellent comix by the likes of Charles Rodrigues, B.K. Taylor and Shary Flenniken), Photo Phunnies, and another of my favourites, the True Section. The True Section comprised True Facts and True Photos, real-life stuff proving that the truth is stranger than fiction. You couldn't make such stuff up!

Included in the True Facts, from time to time were examples, contributed by readers, of actual laws which were either badly written or just plain stupid in and of themselves. For example: In Massachusetts it is illegal for a goat to wear trousers.

I don't know if that's true now, or ever was true. In fact it doesn't come from the NatLamp True Section, but from a book by Leland Gregory called S Is For Stupid (Andrews McMeel, 2011). Mr Gregory says these are true (and stupid/funny) laws, and I'll take his word for it. They sure made me laugh!

Cats are forbidden to ride on public buses in Seattle if there is a dog already on board. Also, any dog weighing more than 25 pounds must pay the full adult fare.

No person shall knowingly keep or harbor at his house or her house within the city any woman of ill-repute, lewd character, or a common prostitute...other than wife, mother, or sister. (Ashland KY ordinance)

Burglars are prohibited from entering or leaving the scene of a crime by the front door. (Lincoln NE ordinance)

Whoever operates an automobile or motorcycle on any public way -- laid out under authority of law recklessly or while under the influence of liquor shall be punished. (Massachusetts state ordinance. The absence of a second em-dash would seem to impose on the motorist the duty of finding out at his peril whether certain highways had been laid our recklessly or while under the influence of liquor, before driving his car over them.)

No dog shall be in public without its master on a leash. (Belvedere CA ordinance)

In Alaska it is against the laws to disturb a grizzly bear in order to take its picture. (A crime with its own unique punishment?)

Speed upon country roads will be limited to 10 miles an hour unless the motorist sees a bailiff who does not appear to have had a drink in 30 days, then the driver will be permitted to make what he can. (??? El Dorado County CA law)

Mississippi common law states that every citizen has a right to shoot to kill if necessary when escorting a woman home from a quilting party and another man interferes and threatens to shoot him.

That's enough stupid/funny laws for one day. Ed. Anyone who collects National Lampoon magazines is recommended to search eBay this month. One of our assiduous readers has dozens of them on sale (by auction) at reasonable prices.

10 more warnings that shouldn't be necessary

We start with a little joke (?) submitted by Agent 6. Ed. calls him "Mr Reliable" because when we need a chuckle to dispel the gloom, he's got one! This is a story about a heartbroken lawyer... as if a lawyer would have a heart!

When a father sent his three sons to university, he told them, "I feel it's my duty to provide you with the best possible education. You don't owe me anything for that, but I want to know that you to appreciate it. As a gesture of appreciation, please each put $1000 into my coffin when I die."

And so it happened. His sons became a doctor, a lawyer and a financial planner, each very successful financially. When their father’s time came, and they saw him in his coffin, they remembered his wish.

First to approach the casket was the doctor, who put ten $100 bills onto the chest of the deceased. Then came the financial planner, who also placed $1000 in the folded hands of his dad. Finally, it was the turn of the heartbroken lawyer. He reached into his pocket, took out his cheque-book, wrote a cheque for $3000, put it into his father's coffin, and took the $2000 cash!

Agent 6 goes on to say that the heartbroken lawyer went on to become a successful politician, which is hardly surprising. But the story is really about the trouble with lawyers, which happens to be the theme of The Case Against Lawyers (Broadway Books, New York, 2002), by Catherine Crier, a former lawyer and judge. This highly recommendable book tells how the lawyers, politicians and bureaucrats have turned the law into an instrument of tyranny... and what we as citizens must do about it.

A few days ago, Walt posted "15 warnings that really shouldn't be needed". In Chapter One of her book, headed "We Love Our Rules", Ms Crier gives 10 examples from the Wacky Warning Label contest sponsored by Michigan Lawsuit Abuse Watch, as follows.

10. The label on a handheld massager advises "Do not use while sleeping or unconscious."

9. A sign on a public toilet reads "Recycled flush water unsafe for drinking.:

8. A can of pepper spray warns users "May irritate eyes."

7. Please heed the warning on a laser printer cartridge: "Do not eat toner."

6. A 13-inch wheel on a wheelbarrow warns "Not intended for highway use."

5. A label on prescription sleeping pills warns that they "may cause drowsiness."

4. A cardboard car sunshield that keeps sun off the dashboard warns "Do not drive with sunshield in place."

3. Bicycle shin guards warn "Shin pads cannot protect any part of the body they do not cover."

2. A household iron warns "Never iron clothes while they are being worn."

And finally, the author's favourite...
1. The baby stroller label that cautions "Remove child before folding."

Ms Crier asks us to remember that these are all legitimate labels to protect us from ourselves. They're not superfluous "information" (she writes) but responses to lawsuits in which courts have expanded and approved the right to be an idiot. Who's to blame? Lawyers -- the USA has more of them per 100,000 than any nation on earth -- and politicians -- ditto.