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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.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.