PAYLESS SHOESOURCE v. TRAVELERS COMPANIES, INC.

No. 08-3246.

585 F.3d 1366 (2009)

PAYLESS SHOESOURCE, INC., Plaintiff-Counter-Defendant-Appellant, v. The TRAVELERS COMPANIES, INC., formerly known as The St. Paul Travelers Companies, Inc., Defendant-Counter-Claimant-Appellee.

United States Court of Appeals, Tenth Circuit.

November 10, 2009.


Attorney(s) appearing for the Case

Mark F. Rosenberg of Sullivan & Cromwell LLP, New York, N.Y. (Michael J. Abrams and R. Kent Sellers of Lathrop & Gage LLP, Kansas City, MO, with him on the briefs), for Plaintiff-Counter-Defendant-Appellant.

Stephen M. Kerwick of Foulston Siefkin LLP, Wichita, KS, for Defendant-Counter-Claimant-Appellee.

Before O'BRIEN, SEYMOUR, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.

This is a dispute over the meaning of a misplaced modifier. Travelers doesn't disagree that a critical modifying clause in the insurance policy it issued may be misplaced as a matter of good grammar. It argues, though, that the meaning of the document remains clear and clearly excludes coverage for Payless's claim. Payless replies that the (mis)placement of the modifying clause precludes Travelers' interpretation,

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