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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.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
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.
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.
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.