Interviewed by Alana McMullin and David Scheidemantle of Lathrop Gage’s Insurance Recovery & Counseling Group.
In a recent decision, the United States Court of Appeals for the Sixth Circuit considered whether a “criminal acts” exclusion in a first-party commercial insurance policy barred coverage for damage to leased property caused by the insured’s tenant in the operation of a marijuana cultivation business. K.V.G. Properties, Inc. v. Westfield Insurance Co., 2018 U.S. App. LEXIS 232296, 2018 FED App. 0178P, 2018 WL 3978211 (6th Cir. Aug. 21, 2018). Marijuana remains illegal as a Schedule 1 drug under federal law but is protected in certain circumstances under the law of Michigan, where the insured property was located. Fatal to the insured’s case, it had pleaded in an eviction proceeding that the tenant’s activities were illegal, which the Sixth Circuit took as an admission that the tenant’s conduct was illegal under Michigan as well as federal law, landing the claim within the confines of the criminal acts exclusion. While paying lip service to black letter law that the insurer bears the burden of establishing the applicability of an exclusion, the court nevertheless ruled against the insured because it had provided no evidence that the tenant had complied with Michigan’s marijuana laws. The court left open whether the exclusion still would have applied had the insured made such a showing (and hinted the outcome might have been different had the insured done so).