The reader who goes by the name A. Wright Burke, M. Phil., told me about this article by Edmund H. Mahoney in the Hartford Courant. It describes how in Pac. Employers Ins. Co. v. Travelers Cas. & Sur. Co., 3:11CV924 MRK, 2012 WL 3202934 (D. Conn. Aug. 3, 2012) (PDF copy here), the judge describes as "gibberish" the insurance-policy provision at issue in a multimillion-dollar lawsuit. An … [Read more...]
Goodbye, “Magic Words”
Some readers may have noticed that in this post discussing problematic terms of art I don't use the phrase "magic words." I've long used "magic words" as a label for dysfunctional terminology; see this 2010 blog post. But while writing my post on terms of art, I realized that although "magic words" has real snark value, it's otherwise unhelpful. So into the dustbin it goes. I also suspect … [Read more...]
The Different Kinds of Problematic Terms of Art Used in Contracts
[This post replaces this previous post, which I deleted, except for the comments. Very occasionally I write something, post it, and then promptly realize that the topic in question is more complex than I had bargained for. That happened with my previous post. I revised it once, but realized that wouldn’t do the trick, and revising it again seemed a bit much—hence this post. My thanks to those who … [Read more...]
What Terms of Art Are Indispensable? (Deleted Except for Comments)
[I've deleted this post because it has been supplanted by this post. Sorry for the discombobulation!] … [Read more...]
Interpretation Mischief at the Fifth Circuit?
A recent opinion by the Fifth Circuit Court of Appeals serves as yet another reminder that the job description of anyone drafting a contract includes guarding against overreaching by a court. The case in question is Flagship Credit Corp. v. Indian Harbor Ins. Co., 2012 WL 2299484 (5th Cir. June 15, 2012) (copy here). A finance company that was sued in a class action sought a declaratory … [Read more...]