Related Practices
Sins of Policy Interpretation: A Call to Repentance
Claims JournalNovember 5, 2025
Written words have an intended meaning. Fair-minded readers try to grasp that meaning. But other readers impute motives to the writer either to serve their own ends or to protect the writer from unforeseen consequences.
Once, early in my career, I met with an insured and his attorney to prepare for the insured’s deposition in a subrogation case. Our theory was that a certain defective product had caused the fire. A critical question, and our first to him at the meeting, was where the product was located at the area of origin. His response, to our horror: “Where do you need it to be?”
Unfortunately, for some coverage attorneys, the only real question about policy language is: “What do you need it to mean?”
This ought not to be.
Those looking for scholarly exegesis on ejusdem generis or the contra proferentem canon should look elsewhere. Our goal here is a simple one: to call to repentance those among us who omit, ignore, or otherwise misuse and abuse the words of an insurance policy to achieve a desired end.
THE STATED OBJECTIVE: DISCERNING ACTUAL INTENT
In the prefatory language of insurance coverage decisions, courts routinely emphasize the objective of contract interpretation: to determine what the parties intended based on their chosen language. In TravCo Ins. Co. v. Ward , the Supreme Court of Virginia put it this way:
“Courts interpret insurance policies, like other contracts, in accordance with the intention of the parties gleaned from the words they have used in the document. Each phrase and clause of an insurance contract should be considered and construed together and seemingly conflicting provisions harmonized when that can be reasonably done, so as to effectuate the intention of the parties as expressed therein.”
Interpretive tools are available to achieve that goal in good faith. But the temptation to resort to other, darker means can be strong when the stakes are high.
Mistakes are made, to be sure – sins of interpretation are not always intentional. And anyone with a dose of humility who does coverage work will acknowledge that policy interpretation is not an exact science. But we should all aspire to discern actual intent from the words used in the policy.
Before turning to interpretation, we should, in fairness, begin with the drafter who starts it all – the one who sometimes commits the original sin.
AMBIGUITY – THE ORIGINAL SIN (OF THE DRAFTER)
In a sense, the first and most fundamental sin is poor expression; the drafter’s failure to clearly convey the intent behind the words chosen. There should be one, and only one, “plain meaning” that leaves no room for another reasonable, alternative interpretation. Inartful words have consequences. And if the plain meaning is literally “undiscoverable”, drafters can expect to face the contra proferentem consequences. As Judge Learned Hand once put it, “insurers who seek to impose upon words of common speech an esoteric significance intelligible only to their craft, must bear the burden of any resulting confusion.”
This caution is not just for insurers; it extends to everyone involved in the drafting process. Policy drafting can be a team sport, involving brokers and insureds as well as underwriters and agents. Without careful consideration, the placement process itself can become the enemy of clarity if brokers and underwriters cobble together manuscript forms and recycle them year after year.
The key takeaway is that anyone who takes up the pen (so to speak) should draft policy language with these principles firmly in mind. If the insurance coverage actually intended is to be the insurance coverage actually provided, drafters must avoid the sin of ambiguity.
FAUX AMBIGUITY
But this leads us to a related sin. In Erie Ins. Exchange v. EPC MD 15, LLC, the court cautioned that “a court may give up quickly on the search for a plain meaning by resorting to the truism that a great many words—viewed in isolation—have alternative, and sometimes quite different, dictionary meanings.” The court characterized this as a “temptation” to be “resisted” when interpreting an insurance policy.
Thus, rushing to declare words ambiguous is also a sin.
SINS OF OMISSION
Plutarch, the ancient Greek philosopher, observed: “The omission of good is no less reprehensible than the commission of evil.” We have a similar concept in mind here. The interpreter knows the right answer – or should – and obfuscates that answer through critical omissions. By way of a telltale ellipsis or otherwise, inconvenient words are sometimes overlooked or ignored in ways that frustrate the express intent of the drafter.
For example, in Elegant Massage, LLC v. State Farm Mutual Automobile Insurance Co., the court acknowledged that a virus exclusion was subject to an anti-concurrent causation clause but then failed to interpret or apply it. Despite language referencing “other causes acted concurrently or in any sequence with the excluded event to produce the loss,” the court found the virus exclusion inapplicable:
Therefore, in applying the Virus Exclusion there must be a direct connection between the exclusion and the claimed loss and not, as the Defendants argue, a tenuous connection anywhere in the chain of causation. That is, although the Virus Exclusion does require that the virus be the cause of the policyholder's loss, the connection must be the immediate cause in the chain.
By requiring a direct connection between the exclusion and the loss, and that the virus be the immediate cause in the chain, the court treated the anti-concurrent causation language as if it did not exist, with no meaning assigned to the words whatsoever.
Simply put, as the EPC court emphasized, words should not be ignored; the meaning of every word should be carefully considered to achieve what the parties intended based on all of the language used in the policy.
SINS OF Commission
The English language is subject to overt abuse and misuse. The English poet, John Gay, wrote:
I know you lawyers can, with ease, / Twist words and meanings as you please; /
That language, by your skill made pliant, / Will bend to favor every client.”
The range of creative possibilities is seemingly endless. For example, some among us feel free to rewrite inconvenient language, as if it were within our power to unilaterally reform the policy to suit our client’s purposes. Words are added where needed. An “exclusion” is transformed into a “coverage,” or vice versa. A singular occurrence becomes multiple occurrences to implicate multiple limits or render sublimits meaningless – but becomes a singular occurrence once again to avoid a deductible. And so on.
In perhaps its most common iteration, the sin of commission involves straining the meaning of words beyond their reasonable breaking point. In Bratton Estate of Slone v. Selective Ins. Co. of Am., Justice Kelsey’s exasperation with the majority’s strained policy interpretation was palpable. The question for the court was whether the driver was “occupying” his vehicle, i.e., “in, upon, using, getting in, on, out of or off” the vehicle at the time of the accident for purposes of uninsured/underinsured motorist insurance. Before being struck and killed, the driver of a dump truck “had gotten out of the dump truck. He had closed the door to the truck cab, and he had walked at least nine feet prior to the accident.” Applying a “vehicle-oriented” standard, the majority nevertheless held that the driver was still “getting out of” the vehicle at the time of the accident.
Justice Kelsey’s dissent is worth quoting at length:
In effect, the majority holds that the process of “getting out of” a vehicle continues after one has already gotten out of it, so long as the “getting out” process is “vehicle-oriented.” I have no idea what this means.
* * *
To the ordinary person, getting out of a vehicle means physically getting out of it and closing the door. A generous construction would allow the “process” of getting out of a vehicle to include getting other things out, such as grocery bags out of the back seat or children out of a minivan.9 In a commercial context, it might even include getting tools or supplies out of the back of a truck. But if the expression is to mean anything, it simply cannot mean getting out, closing the door, and walking at least nine feet away. That is not “getting out”; it is “gotten out.”
A WORD ABOUT OUTRIGHT LIES
Only a brief word should be necessary on this point. Our duty of candor is crystal clear. When vigorous advocacy strays beyond the boundaries of what we know is true, we have strayed too far. Policy interpretation is no exception.
A call to repentance
Coming full circle, those who draft policies have an intended meaning, and discerning their actual intent is our stated goal. There is a true and a false, a right and wrong – the coverage intended and paid for, not the coverage preferred in hindsight.
In the fog of coverage war, we can lose sight of the goal and, perhaps unwittingly, find ourselves committing the sins of policy interpretation in all sorts of Machiavellian combinations. And the truth becomes a casualty.
If you are already fighting the good fight, consider this a chance for dramatic renewal of purpose.
But if you have lost sight of the real goal, consider this a call to repentance. Let the truth – or at least the true intent – set you free.
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The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Originally published by Claims Journal
