How To Draft and Interpret Insurance Policies Table of Contents

Transcription

1 How To Draft and Interpret Insurance Policies Table of Contents How To Draft and Interpret Insurance Policies Foreword Preface o Why Policy Wording Is Important o Caselaw Topical index Table of Cases Authors Part A: Policy Interpretation o Chapter 1--Fundamental Principles History of Policy Construction Contractual Intent Controls Objective Intent Policyholder's Viewpoint Reasonable Person Standard Written Evidence of Intent Correction of Mistakes Extrinsic Evidence of Intent Cannot Contradict a Writing May Help Explain a Writing Admissibility of Extrinsic Evidence Demonstrating Uncertainty of Meaning Extrinsic Evidence Offered for Other Purposes Relevance and Materiality o Chapter 2--Basic Coverage Analysis Plain Meaning Rule Ordinary Words Use of Dictionaries Conflicting Dictionaries Multiple Dictionary Entries Special Meaning Rule Industry Terms Insurance Terms Legal Terms Unrecognizable Legal Terms 1

2 Arguments Against Using Legal Terminology Facially Unintelligible Text Overlapping Definitions References to Unidentified Statutes Linguistic Experts o Chapter 3--Overriding Concerns Frustration of Purpose The Purpose of Insurance Is To Insure Superfluous Wording Absurd Results Illegality Reading Language in Context Provisions on the Same Subject Specific Provisions Itemized Lists o Chapter 4--Advanced Coverage Issues Reasonable Expectations of Coverage Latent Coverage Restrictions Extrinsic Circumstances Rationales for the Reasonable Expectations Doctrine Avoiding the Reasonable Expectations Doctrine Contra Proferentem Two Correct Interpretations Rationale for the Contra Proferentem Rule Rule of Last Resort Contra Proferentem Checklist Danger of Skipping to the End When Contra Proferentem Does Not Apply Waiver of Reasonable Expectations and Contra Proferentem Part B: Special Problems in Drafting and Interpreting Insurance Policies o Chapter 5--Statutes and Administrative Law Prescription of Content Mandatory Language Prohibited Clauses Approved Forms Noncompliance with Regulations Deceptive Practices Construction Consistent with Regulation Choice of Law o Chapter 6--Public Policy Sources of Public Policy Rejection of Provisions Inconsistent with Public Policy 2

3 Construction Consistent with Public Policy Implied Exclusions Based on Public Policy Drafting Insurance Policies in View of Public Policy EPLI Intentional Act Exclusions o Chapter 7--Promises, Conditions, and Representations Promises Use and Abuse of "Shall" Breach of Promise and Consequences of Breach Conditions Types of Conditions Legal Significance of Conditions Representations and Warranties General Contract Law Representations and Warranties in Insurance Transactions Construction and Legal Significance of Representations Construction and Legal Significance of Warranties Concealment o Chapter 8--Insuring Agreements and Exclusions Insuring Agreements Construction Against the Proponent of a Coverage Limitation Burden of Proof Placement of Restrictions and the Reasonable Expectations Doctrine The Named Insured Omitting Insuring Agreement Conditions Framing Restrictions as Part of the Insuring Agreements Adding Conditions to the Insuring Agreement Adding Conditions to the Definition of Words Used in the Insuring Agreement Supplementary Coverage Exclusions Dependent and Independent Exclusions Exceptions to Exclusions Use of "Unless" o Chapter 9--Endorsements and Other Customized Provisions Drafting Endorsements--The Substitution Approach Incorporation of Endorsements Renewal of Endorsements Missing Attachments Modification Techniques Other Than Endorsing a Policy Oral Modification Certificates of Insurance Binders Part C: Clear Writing--The Language of Insurance Policies 3

4 o o o Chapter 10--Semantic Ambiguity Consistency Definitions Types of Definitions Choosing between Types of Definitions Other Issues in Drafting and Using Definitions Abstractions and Exemplars Insufficient Abstraction Amorphous Abstractions Using Examples To Clarify Abstractions Exemplars Particular Words and Phrases Definite Articles Extreme Adjectives Time and Space Pronouns Plurals Listing Particulars Chapter 11--Syntactic Ambiguity Connectives "And" and "Or" Inclusive or Exclusive The Hybrid "and%2for" Conjunction%2FDisjunction Characteristics or Classes Modifiers Adjectives and Adverbs Phrases or Clauses Acting as Adjectives or Adverbs Prepositions Punctuation Commas Other Punctuation Marks Tabulation Chapter 12--Contextual Ambiguity Sources of Contextual Ambiguity "An Exclusion by Any Other Name..." Canons Addressing Contextual Ambiguity Reconciling Provisions Specific Provisions Preempt General Provisions Cut and Paste Tips for Minimizing Contextual Ambiguity Sentence Level Paragraph and Section Level 4

5 o Document Level Postscript: Contextual Ambiguity and Other Insurance Chapter 13--Style Headings Wordiness and Sentence Length Sentence Structure Nominalizations Expletives Passive Voice Normalization Other Useful Sentence Patterns 5