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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.
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.
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.
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.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.