Thursday, May 14, 2009

Court of Appeals gives good drafting tip

This is my last post on Essex Ins. Co. v. BloomSouth Flooring Corp.

In a comment near and dear to my heart as a brief-writer, the court took the insurer's counsel to task for failing to respond to an argument:

Essex, for its part, gives no good reason to affirm the [District] court's decision regarding exclusion (k). Specifically, Essex fails to offer a reasoned argument in support of the court's conclusion that the concrete floor became BloomSmith's product for purposes of the exclusion. Instead, Essex states that "The defective carpet is clearly BloomSouth's product. Just as clearly, it does not constitute real property." While we may agree with Essex on this point, BloomSouth's argument is that Suffolk's complaint may be reasonably construed as alleging that the carpet caused damage to a third party's real property-BFDS's concrete floor. Essex's statement is not responsive to that argument.

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