Presenting a live 90-minute webinar with interactive Q&A Insurance Policy Interpretation: Navigating Plain Meaning, Ambiguity, Special Rules Applicable to Exclusions, Extrinsic Evidence and Burden of Proof Advocating Coverage From Policyholder and Insurer Perspectives TUESDAY, FEBRUARY 16, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Frank J. DeAngelis, Partner, Mound Cotton Wollan & Greengrass , Florham Park, N.J. Alex J. Lathrop, Partner, Pillsbury Winthrop Shaw Pittman , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Insurance Policy Interpretation: Navigating Plain Meaning, Ambiguity, Special Rules Applicable to Exclusions, Extrinsic Evidence and Burden of Proof Frank J. DeAngelis, Partner, Mound Cotton Wollan & Greengrass LLP fdeangelis@moundcotton.com Alex J. Lathrop, Partner, Pillsbury Winthrop Shaw Pittman, LLP alex.lathrop@pillsburylaw.com
State Law Applies • Insurance policies are creatures of state law – Insurance policies are contracts • State law applies to actions on contracts, and therefore to contractual interpretation – The insurance industry is regulated by the states • McCarran-Ferguson Act in 1945 declared that states should regulate the business of insurance • This presentation discusses general principles of insurance policy interpretation – These principles are similar in many respects throughout all states – However, there are subtle differences from one state to the next that can have important consequences • Any time you are advising your client regarding insurance policy interpretation, it is important to first familiarize yourself with the law of the applicable jurisdiction – Keep in mind that there may be uncertainty regarding which state’s law applies – Choice of law is beyond the scope of this presentation 6 | Insurance Policy Interpretation
Overview of General Rules of Policy Interpretation • Nearly every decision involving a dispute over the meaning of policy language will begin with a recitation of the general rules of insurance policy interpretation. – Typically, the court will only recite the particular rules that are relevant to the dispute before it. • At a high level, these rules can be summarized as follows: – When reviewing an insurance policy, as a starting point, general rules of contract construction will apply. – In addition to general rules of contract construction, insurance policies will receive “special scrutiny” by the courts for reasons we will discuss later in this presentation. – Despite this “special scrutiny” courts are to avoid rewriting insurance contracts to give an insured more than what was reasonably expected. • Stated otherwise, principles of insurance policy interpretation may not be applied to change the meaning of an otherwise clear provision. 7 | Insurance Policy Interpretation
Plain And Ordinary Meaning • Courts will seek to determine the common intent of the parties when interpreting insurance policies. – Some courts have held that absent fraud or unconscionable conduct the insured is charged with knowledge of the terms and conditions of the policy even if the insured does not read the insurance policy prior to the loss. • When determining the intent of the parties, the court first looks to the language of the insurance policy. – Words are given their ordinary, plain and popular meaning, unless the words have acquired a technical meaning (as understood by insurers and policyholders). – Courts often refer to dictionary definitions to determine plain and ordinary meaning. • Insurance policies are read in such a way that each term and provision is given meaning. – One policy provision is not to be construed separately without regard to other policy provisions; i.e., the policy is to be construed in its entirety – Courts are not to re-write insurance policies (or provisions) that are clear and unambiguous. 8 | Insurance Policy Interpretation
Ambiguity: Contra Proferentem • If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer, as the drafter of the policy, and in favor of the insured. – This principle is known as contra proferentem (“against the offeror”) – ambiguities in a contract are construed against the drafter. • As a practical matter, the most important argument in an insurance coverage dispute often is whether or not a term or provision is ambiguous. – If it is ambiguous, the policyholder typically wins; if it is unambiguous, the insurer typically wins. – However, rather than applying contra proferentem , some courts hold that once ambiguity is found, the meaning of an ambiguous term is an issue of fact that must be resolved by the trier of fact. • If extrinsic evidence does not resolve the ambiguity, then contra proferentem applies. 9 | Insurance Policy Interpretation
Ambiguity: Reasonable Expectations • One tool that courts use to resolve ambiguity is the “reasonable expectations” doctrine • Insurance policies are interpreted with the “reasonable” expectations of the insured in mind. The New Jersey Supreme Court explained reasonable expectations as follows: When members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. They should not be subjected to technical encumbrances or to hidden pitfalls and their policies should be construed liberally in their favor to the end that coverage is afforded to the full extent that any fair interpretations will allow. Zacarias v. Allstate Ins. Co. , 168 B,H, 590, 595, 775 A.2d 1262 (2001) 10 | Insurance Policy Interpretation
Ambiguity: Reasonable Expectations • The reasonable expectations doctrine is based, in part, on the insured not having equal bargaining power and being required to accept the insurance policy as written. • Expectations must be objectively reasonable and not contrary to the plain language of the insurance policy. • Some courts have held that expectations are different for a sophisticated insured with an in house risk management department or assistance from an insurance broker who obtains a manuscript insurance policy. See, e.g., Chubb Custom Ins. Co. v. Prudential Ins. Co. , 195 N.J. 231, 948 A.2d 1285 (2008). 11 | Insurance Policy Interpretation
Ambiguity: Reasonable Expectations • When insurance policy language is ambiguous, the reasonable expectations of the insured is applied even if a detailed analysis of the policy provisions would result in a finding of no coverage. • Courts will not enforce subtle or legalistic distinctions when an ambiguity is at play. • If insurance policy language is clear on its face, the court will determine if the language is sufficiently clear such that the reasonable expectations of the insured can be defeated. Zacarias , 168 N.J. at 601. 12 | Insurance Policy Interpretation
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