Atain Specialty Insurance Co.) involved the loss of marijuana plants and harvested products by a marijuana growing business, Green Earth Wellness Center. The policy covered stock but had an exclusion for growing crops. The policyholder argued that growing crops referred only to plants in the earth and it was still covered for most of its potted plants. The court disagreed and said the exclusion covered all the plants. However, the court did find coverage for the harvested products. It rejected the insurers argument that the products fell under the contraband exclusion, finding that the federal governments erratic enforcement of federal laws criminalizing marijuana versus state laws legalizing rendered the term contraband ambiguous. For the same reason, it rejected the argument that the policy was unenforceable as against policy. While the federal government talks a wait-and-see approach to state experiments in marijuana legalization, insurers can expect more of their insureds to argue that courts should ignore federal law and precedent when interpreting insurance contracts for medical marijuana-growing businesses, Johnston warned in his report. Driving Under Influence In the area of auto insurance, it is a crime to drive while intoxicated in all states, and there are objective standards for determining intoxication. But the rules around marijuana intoxication are hazy with uncertainty over what constitutes intoxication and how to reliably test for it. States tend to rely upon the observations of the police, Johnston noted. While some states enforce a zero-tolerance approach, the defense attorney said this approach is open to both scientific and legal challenges. He cited a case involving Arizonas zero-tolerance law regarding marijuana and driving. Two drivers appealed their driving under the influence (DUI) convictions after they were not allowed to use their medical marijuana cards for their defense. The court ruled the two were not immune to DUI prosecution but given they had legal authorization for medical reasons, they could be exonerated if they could prove that the amount of marijuana in their system was not enough to cause impairment.
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