Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 28, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS,
Plaintiff - Appellant,
v. No. 25-4049
NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURGH, PA; ACE PROPERTY
AND CASUALTY INSURANCE
COMPANY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:21-CV-00582-TC)
Haley K. Krug of Kirton McConkie, Boise, Idaho (Randy T. Austin, Wade L. Woodard, Justin W. Starr, and Michael D. Johnston of Kirton McConkie, Salt Lake City, Utah, with her on the briefs), for Plaintiff-Appellant.
Mark J. Sobczak of Nicolaides Fink Thorpe Michaelides Sullivan LLP, Chicago, Illinois (Phillip S. Ferguson and Rebecca Lee Hill of Christensen & Jensen, P.C., Salt Lake City, Utah, and Richard H. Nicolaides Jr. and Amy P. Klie of Nicolaides Fink Thorpe Michaelides Sullivan LLP, Chicago, Illinois, with him on the brief), for Defendant-Appellee National Union Fire Insurance Company of Pittsburgh, PA.
Christopher A. Wadley (Ryan J. Rodman with him on the brief), of Walker Wilcox Matousek LLP, Chicago, Illinois, for Defendant-Appellee ACE Property and Casualty Insurance Company.
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 2
Before PHILLIPS and MORITZ, Circuit Judges, and GARCIA, District Judge. *
PHILLIPS, Circuit Judge.
From 2007 to 2011, Michael Jensen sexually abused children in
Martinsburg, West Virginia. Jensen’s parents and grandfather were prominent
members of the Church of Jesus Christ of Latter-Day Saints. Some of Jensen’s
victims sued the church in West Virginia state court for failing to take
precautions that might have stopped his abuse. At trial, but before verdict, the
church settled with the remaining minor plaintiffs and their families.
The church then turned to two of its insurers—National Union and
ACE—to pay its defense and settlement costs. Both refused. So the church sued
them in federal district court in Utah, and the court granted summary judgment
to the insurers.
The church now appeals, arguing that the court should have read two
ambiguous policy provisions in favor of coverage. The insurers argue that those
provisions unambiguously preclude coverage.
We agree with the church. Exercising jurisdiction under 28 U.S.C.
§ 1291, we reverse the district court’s grant of summary judgment and remand
for further proceedings.
*
The Honorable Matthew L. Garcia, United States District Judge for the District of New Mexico, sitting by designation.
2
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 3
BACKGROUND
I. Several children and their families sue the LDS Church over Michael
Jensen’s sexual abuse.
In Provo, Utah, in 2004, 13-year-old Michael Jensen groped two 13-yearold classmates on separate occasions. He was charged with two felonies, but he
pleaded guilty to two misdemeanors.
Some of Jensen’s later victims believed that the Church of Jesus Christ of
Latter-Day Saints “put its thumb on the scale” to obtain that plea deal. App.
vol. 4, at 943 (citation omitted). Jensen’s grandfather was a high-ranking
official in the LDS church, and a prominent LDS official attended Jensen’s
juvenile adjudication. One of Jensen’s friends later testified that Jensen had
said his grandfather “helped him get out of the trouble.” Id. (citation omitted).
Months later, Jensen and his parents and siblings moved to Martinsburg,
West Virginia. There, Jensen’s parents assumed prominent volunteer positions
in the local LDS church. His father became part of the Stake High Council, a
group that advises local church officials and assists with communications and
discipline. And his mother became the president of the Relief Society, the
church’s women’s organization.
As Relief Society President, Jensen’s mother offered Jensen as a
babysitter to other church families. While babysitting and during other stays
with church families between 2007 and 2011, Jensen sexually abused several
children. He was convicted of sexual assault and sexual abuse in 2013.
3
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 4
Later, some of Jensen’s victims sued his parents, church officials, and the
church itself in West Virginia state court. At trial, after years of litigation, the
church settled with the remaining plaintiffs.
It’s not crucial to this appeal, but because the West Virginia case settled
before verdict, the district court and parties here dispute the church’s role in
Jensen’s abuse.
Relying on Jensen’s victims’ amended complaint from the West Virginia
lawsuit, the district court here described the church’s negligence as “failing to”
report suspected abuse, protect victims, supervise or train employees, and warn
families of Jensen’s prior conduct. Church of Jesus Christ of Latter-day Saints
v. Nat’l Union Fire Ins. of Pittsburgh, 817 F. Supp. 3d 1212, 1217–18 (D. Utah
2025) [hereinafter LDS]. The court also wrote that the church held out Jensen
as a babysitter for church families and coordinated Jensen’s “living
arrangements with Church families with minor children.” Id. It ruled that the
church’s “negligence evolved over time,” becoming “more egregious” as
reports of Jensen’s abuse “increased in frequency.” Id. at 1223.
The church disagrees with this view. Faulting the district court’s reliance
on the West Virginia case’s amended complaint, the church asserts that “no
evidence in the record” before the district court showed that church officials
received most of the warnings alleged in the amended complaint. Op. Br. at 6.
But National Union defends the district court’s reliance on the complaint,
and it says that the record supported the court’s view. For example, National
4
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 5
Union points out that West Virginia’s supreme court reversed the trial court’s
decisions that had (1) excluded evidence suggesting church officials knew of
Jensen’s abuse and (2) granted summary judgment to the church defendants on
the victims’ conspiracy claim. See Jane Doe-1 v. Corp. of President of The
Church of Jesus Christ of Latter-day Saints, 801 S.E.2d 443, 464–69, 474
(W. Va. 2017). And record evidence from depositions, trial transcripts, and a
report from the church’s trial lawyers suggest that church officials should have
known about the risk Jensen posed.
It’s enough to say that the church was potentially liable for failing to take
reasonable precautions between 2007 and 2011 that could have prevented
Jensen’s sexual abuse of the settling victims.
II. The church sues its insurers in federal court to recover the West
Virginia lawsuit’s costs.
During trial, the church turned to National Union and ACE, two of its
insurers between 2007 and 2011. The church told them that it expected them to
pay for settlement and defense costs. The insurers refused.
So after the church settled with the victims, it sued the insurers in federal
court in Utah for breach of contract and breach of the implied covenant of good
faith. The church sought damages and a declaratory judgment that the insurers
needed to pay the church’s defense costs and indemnify it for the settlements.
The insurers raised—and continue to raise—several counterarguments for why
they don’t need to pay.
5
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 6
The district court granted summary judgment to the insurers by ruling on
only one issue, LDS, 817 F. Supp. 3d at 1236, 1241, and the church appeals
only that ruling. That issue is the insurance policies’ use of the word
“occurrence.” The policies pay out per “occurrence” leading to bodily injury,
but only when the church’s liability for that “occurrence” exceeds the “retained
limit” of what the church must pay first. For example, if the retained limit is
$100, and the church’s liability for an occurrence is $99, the retained limit isn’t
met, and the insurer need not pay. 1 But if the church’s liability for that
occurrence were $101, the insurer would pay the $1 above the retained limit.
In the West Virginia litigation, no single settlement between the church
and one of Jensen’s victims met the policies’ retained limits. When added
together though, the settlements exceed those limits, meaning the insurers
would need to cover the excess amount, absent some other reason to deny
coverage.
That’s why, at the district court, the church argued that its negligence
was one occurrence, while the insurers argued that it was several. If the
1
To respect the protective order between the church and the victims, we don’t use the actual retained limit or settlement amounts. And we grant the parties’ motions to seal unredacted briefs and volumes of the appendix. Parties must show “a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process.” Suture Express, Inc. v. Owens & Minor Distrib., Inc., 851 F.3d 1029, 1047 (10th Cir. 2017) (citation omitted). The parties have shown such an interest here: protecting the identities of sex-abuse victims and the settlement terms between those victims and the church.
6
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 7
church’s alleged negligence counts as just one occurrence, the insurers might
need to pay part of the church’s defense and settlement costs. But if it counts as
several occurrences, the insurers pay nothing.
The district court rejected the church’s interpretation, ruling that the
policies’ definitions of “occurrence” unambiguously meant that “the abuse of
separate victims at separate times and in separate places presumptively
constitutes multiple occurrences.” LDS, 817 F. Supp. 3d at 1224, 1234–35. It
held that “a separate occurrence arose every time Mr. Jensen abused separate
children at separate times and in separate places.” Id. at 1223. So the district
court granted summary judgment to the insurers, and the church timely
appealed.
DISCUSSION
We review de novo a district court’s grant of summary judgment,
applying the same legal standard as the district court. N.H. Ins. v. TSG Ski &
Golf, LLC, 128 F.4th 1337, 1344 (10th Cir. 2025). That standard is to grant
summary judgment only if “there is no genuine dispute as to any material fact,”
and the movant “is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
And because this case is in federal court through diversity jurisdiction,
we apply the forum state’s substantive law. See N.H. Ins., 128 F.4th at 1344.
The parties agree that Utah law applies. “When the federal courts are called
upon to interpret state law, the federal court must look to rulings of the highest
7
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 8
state court, and, if no such rulings exist, must endeavor to predict how that high
court would rule.” Dyno Nobel v. Steadfast Ins. Co., 85 F.4th 1018, 1025 (10th
Cir. 2023) (citation omitted).
The district court erred in granting summary judgment to the insurers.
The policies’ definitions of “occurrence” are ambiguous, the church’s reading
is plausible, and Utah law requires courts to read ambiguous provisions in favor
of coverage.
We first explain why the district court should have interpreted the
policies in favor of coverage. We then address the insurers’ arguments that we
should affirm the court on alternative grounds.
I. Utah courts read ambiguous provisions in favor of coverage.
Under Utah law, insurance policies are contracts that we construe using
“the text of the contract itself.” See Compton v. Hou. Cas. Co., 393 P.3d 305,
310 (Utah 2017) (citation omitted).
But when the text isn’t clear, “any ambiguity or uncertainty in the
language of an insurance policy must be resolved in favor of coverage.” Lopez
v. United Auto. Ins., 274 P.3d 897, 902 (Utah 2012) (citation omitted). This is
because “insurance policies are adhesion contracts,” “typically drafted by
insurance company attorneys,” “not negotiated by the insured,” and “offered on
a take-it-or-leave-it basis.” Farmers Ins. Exch. v. Versaw, 99 P.3d 796, 800
(Utah 2004). Whether a policy provision is ambiguous “is a question of law,”
8
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 9
Mellor v. Wasatch Crest Mut. Ins., 201 P.3d 1004, 1008 (Utah 2009) (citation
modified), which we review de novo.
We turn now to the text of the insurance policies. Each policy here pays
out when the church’s liability for a bodily injury exceeds the policy’s retained
limit. The retained limits apply to each occurrence leading to bodily injury.
National Union’s policy defines “occurrence” like this:
[A]n accident, including continuous or repeated exposure to
substantially the same general harmful conditions. All such exposure
to substantially the same general harmful conditions will be deemed
to arise out of one Occurrence.
App. vol. 1, at 92. And ACE’s policies define it like this:
[A]n accident, including continuous or repeated exposure to
substantially the same general harmful conditions. All such exposure
to substantially the same general harmful conditions shall be
considered as arising out of the same ‘occurrence’, regardless of the
frequency or repetition thereof, or the number of claimants.
E.g., id. at 277. 2
The district court held that the policies’ definitions of “occurrence” are
“not ambiguous—at least not where there were multiple victims abused at
separate times, and especially where the insured received warnings about the
abuse.” LDS, 817 F. Supp. 3d at 1234. It then cited Lee v. Interstate Fire &
Casualty Co., 86 F.3d 101, 104 (7th Cir. 1996), to hold that even if
“occurrence” were ambiguous, “it is unclear what it means to interpret this
2
ACE’s policies with the church changed over the relevant years. ACE hasn’t argued on appeal that the changed language affects our analysis.
9
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 10
language in favor of the insured . . . because the phrase . . . affects the amount
of coverage under the policies in multiple ways.” LDS, 817 F. Supp. 3d at 1235.
On appeal, the church argues that it presented the district court with a
reasonable interpretation of the policies that would have resulted in coverage:
the church’s failure to prevent Jensen’s several instances of abuse counted as
one occurrence. So under Utah law, the church argues, the court should have
adopted that interpretation.
We agree with the church. We first address the court’s holding on
ambiguity. We then discuss the court’s reasoning that it is “unclear what it
means to interpret this language in favor of the insured.” See id.
A. The provisions are ambiguous.
Under Utah law, a contractual provision is ambiguous when it “is capable
of more than one reasonable interpretation.” Doctors’ Co. v. Drezga, 218 P.3d
598, 607 (Utah 2009). This means that “the terms used to express the intention
of the parties may be understood to have two or more plausible meanings.”
Saleh v. Farmers Ins. Exch., 133 P.3d 428, 432 (Utah 2006) (citation omitted).
A “plausible meaning” must be “more than a conjecture,” cannot be a “forced
or strained construction,” but “may be less than a certainty.” Id. at 433 (citation
omitted). And again, “any ambiguity” in an insurance policy “must be resolved
in favor of coverage.” Lopez, 274 P.3d at 902 (citation omitted).
For this appeal, we assume that the district court’s interpretation of the
policies—that “a separate occurrence arose every time Mr. Jensen abused
10
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 11
separate children at separate times and in separate places”—is plausible. See
LDS, 817 F. Supp. 3d at 1234-35.
Turning to the church’s interpretation of the policies, recall National
Union’s definition of “occurrence”: “an accident, including . . . repeated
exposure to substantially the same general harmful conditions.” App. vol. 1,
at 92 (emphasis added). The church plausibly reads “general harmful
conditions” to include “the dangerous environment allegedly created by” failing
to take precautions against Jensen’s abuse. Op. Br. at 38. The provision’s
“deeming clause” adds that “[a]ll such exposure . . . will be deemed to arise out
of one Occurrence.” Id. An insured could reasonably read the deeming clause to
consolidate separate victims’ exposure to that dangerous environment into one
occurrence. So even though the victims were separate children abused at
separate times in separate places, the church plausibly reads the policy to count
those “repeated exposure[s]” as “one Occurrence.” See App. vol. 1, at 92.
The church’s interpretation fits ACE’s policy even better. That policy
states that “exposure to substantially the same general harmful conditions” is
one occurrence “regardless of the frequency or repetition thereof, or the number
of claimants.” App. vol. 1, at 277. To the church, this means that there was one
occurrence when separate victims were exposed at separate times in separate
places to the dangerous environment created by the church’s alleged
negligence.
11
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 12
This is enough to reject the district court’s first holding. We need not
hold that the church’s interpretation is the most reasonable or most plausible
interpretation. And we don’t. We hold only that it is plausible. And because it
is plausible, and the district court’s interpretation is also plausible, the
provisions are ambiguous under Utah law.
The insurers defend the district court’s decision as “properly
consider[ing] the prevailing authority from other jurisdictions.” ACE Br. at 24.
And they assert that the court “correctly found that the relevant caselaw as a
whole” supports counting multiple instances of abuse as multiple
“occurrences.” Id. at 26 (citation modified); see also LDS, 817 F. Supp. 3d
at 1224–31.
To be sure, several courts have grappled with similar provisions to decide
whether sexual abuse counts as one “occurrence” or several. But there’s no
consensus on how to interpret “occurrence.” We see at least three approaches.
First, some courts have held that an institution’s negligence toward
repeated sexual abuse counts as one occurrence. See, e.g., Washoe County v.
Transcon. Ins., 878 P.2d 306, 308 (Nev. 1994) (concluding that a county’s
“negligence in the licensing process and in its attendant duties to investigate
and monitor” was one occurrence). And contrary to its position here, ACE itself
has argued that “87 actions involving 212 victims” “dating back to the 1940s”
could be seen as one “longstanding institutional policy . . . [to] cover up the
sexual abuse of minors,” because that policy “was the proximate, uninterrupted
12
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 13
and continuing cause of the underlying victims’ injuries.” See Plaintiff’s Brief
in Opposition to Defendants’ Motion to Dismiss the Complaint, at 2, 20,
Century Indem. Co. v. Diocese of Trenton, No. 3:24-cv-00685 2024 WL
3159936 (D.N.J. Apr. 22, 2024). There, ACE cited several courts that have
counted institutional failures, like condoning repeated instances of
discrimination or police brutality, as one occurrence. Id. at 20 & n.2 (citing,
among other cases, Appalachian Ins. Co. v. Liberty Mut. Ins., 676 F.2d 56, 61
(3d Cir. 1982), and Mead Reinsurance v. Granite State Ins., 873 F.2d 1185,
1188 (9th Cir. 1988)).
Second, some courts have held that when an abuser harms different
victims at different times, an institution’s negligence toward that abuse counts
as several occurrences. See, e.g., Interstate Fire & Cas. Co. v. Archdiocese of
Portland in Or., 35 F.3d 1325, 1329 (9th Cir. 1994) (stating that similar
“occurrence” language unambiguously means one occurrence per instance of
abuse of the same victim); Lee, 86 F.3d at 104–05 (noting the lack of a factual
record but reasoning that separate abuse of separate victims at separate times
likely counts as multiple occurrences); H.E. Butt Grocery Co. v. Nat’l Union
Fire Ins. of Pittsburgh, 150 F.3d 526, 528, 535 (5th Cir. 1998) (opinion of
Garza, J.) (reasoning that separate abuse of separate victims at different times
counts as separate occurrences); Roman Cath. Diocese of Brooklyn v. Nat’l
Union Fire Ins. of Pittsburgh, 991 N.E.2d 666, 672 (N.Y. 2013) (holding that
13
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 14
separate instances of abuse are multiple occurrences under a policy that lacked
a “deeming” clause).
Third, some courts have held that definitions of “occurrence” resembling
the ones here have more than one plausible interpretation. After finding that,
those courts usually choose a reasonable interpretation that favors coverage.
See, e.g., Scott Fetzer Co. v. Zurich Am. Ins., 769 F. App’x 322, 327 (6th Cir.
2019) (holding that a similar “occurrence” definition is ambiguous, then
adopting the insured’s reasonable reading of its underlying conduct as one
occurrence); S.F. v. W. Am. Ins., 463 S.E.2d 450, 452 (Va. 1995) (same, but
adopting the insured’s reasonable reading of its underlying conduct as several
occurrences); but cf. Soc’y of Roman Cath. Church of Diocese of Lafayette &
Lake Charles, Inc. v. Interstate Fire & Cas. Co., 26 F.3d 1359, 1364–65
(5th Cir. 1994) (same, but citing Louisiana law to find a separate occurrence
per victim).
These conflicting approaches reinforce our conclusion that the policies
are ambiguous. That’s because under Utah law, an insurance-policy provision is
more likely to be ambiguous when different jurisdictions have “conflicting
interpretations” of it. See W. Am. Ins. Co. v. AV&S, 145 F.3d 1224, 1227–29
(10th Cir. 1998). More importantly, the church’s interpretation plausibly fits
with the language of the two policies before us. Under Utah law, the court’s
role is to ask if the insured’s interpretation is plausible, not to harmonize policy
interpretation across jurisdictions. See Versaw, 99 P.3d at 799–800. If the
14
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 15
insured’s interpretation is plausible, we must adopt it—even if it’s not the best
reading, and even if other jurisdictions read the same provision differently.
Next, we reject ACE and the district court’s analogy to a car crash. To
them, the church’s reading of the policy cast Jensen as “a bad driver whom the
Church negligently hired and who injured multiple people in a single crash,”
while Jensen’s repeated assaults were “more analogous to a bad driver . . .
negligently allowed back on the road over and over, despite repeated
accidents.” LDS, 817 F. Supp. 3d at 1224.
Through this analogy, ACE suggests that the church’s interpretation
doesn’t fit with a “common sense” understanding of “occurrence.” See ACE Br.
at 36. But Utah law tells us to examine the policy language, not common sense.
See Saleh, 133 P.3d at 433–34. ACE’s policy language deems “continuous or
repeated exposure to substantially the same general harmful conditions” to be
one “occurrence,” “regardless of the frequency or repetition thereof, or the
number of claimants.” App. vol. 1, at 277. The church’s interpretation fits
within ACE’s definition of “occurrence,” and that’s what matters.
B. Lee doesn’t apply here.
We now turn to the district court’s alternative holding on ambiguity. In
effect, it held that Utah’s rule for interpreting ambiguous provisions in favor of
the insured didn’t apply. Citing Lee, 86 F.3d 101, a clergy-sexual-abuse case
applying Rhode Island law, the district court declined “to adopt an
interpretation of ‘occurrence’ that would shift in meaning between insureds
15
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 16
who wish to avoid the application of multiple retained limits and insureds who
wish to avoid the application of a liability cap.” 3 LDS, 817 F. Supp. 3d at 1236.
The insurers repeat this argument on appeal.
The insurers are wrong. To start, Lee chose not to read the policy against
its drafter because the case was by then between two insurers, one of which
“chose to ‘follow form’ to [the other’s] policy and [was] therefore equally its
author.” Lee, 86 F.3d at 104, 105; see generally 2 Couch on Ins. § 22:24 (3d ed.
2025) (explaining that the rule of reading ambiguity in favor of coverage is
inapplicable to “disputes between two insurers”). This fits with Utah law,
which reads ambiguous provisions in an insured’s favor in part because of “the
need to afford the insured the protection” it paid for. See Doctors’ Co.,
3
As an example of this “shift in meaning,” consider two scenarios with a retained limit of $100, a maximum payout of $1,000 per occurrence, and three victims with whom the church settles.
In Scenario 1, the church settles for $100 with each victim. If the church’s negligence counts as one occurrence per victim, the insurers pay nothing. But if the church’s negligence toward all three victims counts as one occurrence, then the settlements would add up to $300, of which the insurer would pay $200. In this scenario, the insured wants the abuse to count as one occurrence, while the insurer wants it to count as several. See, e.g., Scott Fetzer Co., 769 F. App’x at 324–25.
In Scenario 2, the church settles for $1,000 with each victim. If the church’s negligence counts as one occurrence, the insurer pays only $900 to satisfy the policy ($1,000 minus the $100 retained limit), while the church pays the remaining $2,100. But if the church’s negligence counts as one occurrence per victim, the insurer would need to pay $2,700 ($900 for each of the three victims), while the church would pay the remaining $300. See, e.g., S.F., 463 S.E.2d at 452. So in this scenario, the insurer wants the abuse to count as one occurrence, while the insured wants it to count as several.
16
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 17
218 P.3d at 603 (citation omitted). That need isn’t present in disputes between
insurers. And unlike Lee, this is a case between an insurer and an insured. 4
We also reject the district court’s “shift in meaning” reasoning. That
reasoning comes from Lee, which held that “what it means to construe
[“occurrence”] against the author is itself ambiguous” because “[w]inners and
losers will change with the circumstances.” See id. at 104. As in, the district
court worried that on Monday, an insured could argue that an insurance policy
counts discrete accidents as one “occurrence.” See LDS, 817 F. Supp. 3d
at 1236. And on Tuesday, because of different settlement amounts in a different
case, the same insured could argue that the same policy counts discrete
accidents as separate “occurrences.” See id.
This could happen. So what? Under Utah law, the court’s job is to ask
whether the insurer wrote a policy that can reasonably be interpreted in two
ways. If so, then the insurer has invited insureds to play “heads I win tails you
lose” with that ambiguous provision. Ambiguous provisions thus carry a high
price. To avoid that high price, insurance-policy drafters can clarify those
provisions—to the benefit of the insurer, the insured, and the courts.
* * *
4
In the district court, National Union and the church disputed whether Utah law requires resolving ambiguous provisions in favor of sophisticated insureds, like the church. The court didn’t rule on this issue, and it hasn’t been raised on appeal.
17
Appellate Case: 25-4049 Document: 71-1 Date Filed: 07/28/2026 Page: 18
In sum, we reject the district court’s holdings. On remand, the district
court should proceed from the understanding that the policies’ definitions of
occurrence are ambiguous and that the church’s interpretation is reasonable.
II. We choose not to affirm on alternative grounds.
The insurers argue that even if the church’s reading of the policy is
reasonable, we should affirm on alternative grounds.
National Union argues that its policy expired before most of Jensen’s
abuse, so it shouldn’t be liable for settlements with those victims. And ACE
argues that settlements for injuries across policy periods can’t be added
together, that bodily injury doesn’t include emotional injuries, and that ACE
bears no responsibility for the church’s defense costs. 5
“As a general rule, we do not address issues not ruled on by the district
court.” Tillman ex rel. Est. of Tillman v. Camelot Music, Inc., 408 F.3d 1300,
1307 (10th Cir. 2005). Because the district court never addressed these
arguments, we decline to consider them for the first time on appeal.
CONCLUSION
We reverse the district court’s grant of summary judgment to ACE and
National Union, and we remand for further proceedings.
ACE also argues that we should affirm the district court’s entry of
5
summary judgment against the church’s bad-faith claim. But the church didn’t appeal that ruling.
18