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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.
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The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
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Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.