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Unraveling Plain Meaning, Extrinsic Evidence And the Doctrine of Contra Proferentem
As anyone involved with insurance coverage litigation knows, ” contra proferentem” is Latin for “ the insurer loses.” Contra proferentem is a rule of contract interpretation that requires an ambiguous contract term to be construed against the drafter of the contract. 20-129 Appleman on Insurance Law & Practice Archive ' 129.2. Because the insurer is the author or “profferor” of the insurance contract, contra proferentem, when applied, almost always results in a loss for the insurer. That the doctrine is also called the “contra insurer” rule speaks to the fact that, when interpreting insurance policies, courts sometimes forget that general rules of contract construction still apply. But there may be a trend in the right direction.
Specifically, a number of commentators have identified a trend away from strict application of contra proferentem and the “plain meaning rule” and toward the admission of extrinsic evidence, in some states even where a contract is ostensibly unambiguous. This is based on a recognition of the inherent tension between these two rules on one hand, and, on the other hand, the principle that ascertaining the parties' intent in the formation of contract is paramount. The view that extrinsic evidence shall not be considered to resolve ambiguities in a contract is clearly at odds with the goal of ascertaining the parties' intent. This is essentially the view in those states applying the contra proferentem rule as a first resort in cases of ambiguity. The preclusion of extrinsic evidence to answer the question of whether an ambiguity exists in the first instance is also at odds with the goal of ascertaining the parties' intent.
The DOJ's Corporate Enforcement Policy: One Year Later
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.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
New York's Latest Cybersecurity Commitment
On Aug. 9, 2023, Gov. Kathy Hochul introduced New York's inaugural comprehensive cybersecurity strategy. In sum, the plan aims to update government networks, bolster county-level digital defenses, and regulate critical infrastructure.