Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Making Sense of Contra Proferentum
One traditional rule of contract interpretation is to construe contact terms in appropriate circumstances against the drafter, a concept often referred to as contra proferentum. This doctrine sometimes fits uncomfortably with two other views expressed by American courts. On one hand, many decisions say that insurance contracts are interpreted just like any other commercial contract. See, e.g., Sims v. Mulhearn Funeral Home, Inc., ___ So.2d ___, (La. 2007); Bear River Ins. Co. v. Williams, 153 P.2d 798, 801 (Utah Ct. App. 2006). On the other hand, some decisions say without qualification that insurance contracts should be construed strictly against the insurer. See, e.g., Carter v. Concord Gen. Mut. Ins. Co., ___ A.2d ___ (N.H. 2007); Cinergy Corp. v. Associated Elec. & Gas Ins. Servs., Ltd., 865 N.E.2d 571, 574 (Ind. 2007). And sometimes a single opinion tries to express both at the same time: 'It is well settled that a contract of insurance is no different from any other contract and must be construed in a fair and reasonable manner, having regard to the risk and subject matter of the policy, and that special rules such as liberal construction in favor of the insured and against the insurer who drew the contract apply.' In re New York Cent. Mut. Fire Ins. Co., 833 N.Y.S.2d 182, 183 (App. Div. 2007) (emphasis added).
Some commentators have endeavored without much success to reconcile these plainly distinct concepts. See, e.g., James M. Fischer, Why Are Insurance Contracts Subject to Special Rules of Interpretation?: Text Versus Context, 24 Ariz. St. L. J. 995, 1064 (1992) (arguing in favor of 'pro-insured' interpretational rules); and Carl A. Salisbury, Pollution Liability Ins. Coverage, the Standard-Form Pollution Exclusion, and the Insurance Industry: A Case Study in Collective Amnesia, 21 Envtl. L. J. 357, 362 n. 13 (1991). The only approach that sensibly reconciles these conflicting principles is based on the nature of the contracting parties and of the contract they made.
The Contra Proferentum Doctrine
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?