Don’t Give a Disgruntled Contract Party a Stick to Beat You With (Featuring “And/Or”)

I noticed a recent case out of the U.S. District Court for the Eastern District of Wisconsin, Redmond v. Sirius International Insurance Corporation (here). The language at issue used and/or. Here’s what the court had to say:

The plaintiff contends that the court must reconsider its denial of his motion for summary judgment because the use of “and/or” in the policy rendered it ambiguous. Specifically, in relevant part, the policy contains the following exclusion:

any Injury or Illness sustained while taking part in … snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body)….

(Docket No. 83, ¶ 33.)

There is no evidence that the plaintiff was injured while “skiing in violation of applicable laws, rules or regulations” or “against the advice of the local ski school or local authoritative body.” Thus, the plaintiff now argues that because “and/or” could be read as stating the conjunctive or disjunctive, it is ambiguous. If the term is ambiguous, it is read against the insurer and in favor of the insured. Therefore, the term “and/or” must be read as “and” and consequently all three of the elements must be satisfied for the exclusion to apply. In light of the fact that the evidence does not satisfy two of those elements, the skiing exclusion must not apply to his injuries. Therefore, in the view of the plaintiff, the factual dispute that precluded summary judgment—whether the plaintiff was skiing “away from prepared and marked in-bound territories”—is immaterial. Even if he was, because the other two elements of the exclusion are not present, the skiing exclusion could not bar coverage.

Even if the court was to consider the merits of the plaintiff’s motion, the court would not find that the plaintiff is entitled to the relief sought. The plaintiff failed to adequately demonstrate that the use of “and/or” in the contract rendered the exclusion ambiguous under Indiana law. The use of “and/or” might be bad writing … but it does not render this exclusion ambiguous. Any of the three provisions may bar coverage; the use of “and” clarifies (perhaps needlessly) that the exclusion remains applicable even if more than one provision applied in a particular situation. This is the only reasonable construction of the exclusion.

Here’s what I take from this:

The plaintiff’s argument was bonkers: “Because and/or can mean and or or, it’s ambiguous, so we say it means and.” In fact, and/or means and and or: A and/or B means A or B or both.

Of course, if a disgruntled contract party wants to waste everyone’s time and money making losing arguments in litigation, it’s at liberty to do so. But the least that you, as contract drafter or reviewer, can do is not give disgruntled contract parties a stick to beat you with.

In that regard, and/or does have a specific meaning, but A and/or B is simply less clear than A or B or both, and and/or has long befuddled readers. So don’t use and/or. Those who drafted the policy at issue in Redmond v. Sirius have only themselves to blame for the policyholder’s decision to make a dumb argument about and/or. After all, they supplied the ammunition. (They managed to use and/or twice in one sentence. I wouldn’t be surprised if and/or appears many times in that policy.)

Incidentally, the court is to be congratulated for avoiding the spittle-flecked invective employed by courts in the mid-twentieth century when discussing and/or. It’s not near the top of my list of contract-drafting evils.

For more on and/or, see MSCD 11.73 and this 2010 post, this 2011 post, and this 2012 post.

Posted in Ambiguity | 6 Comments

  • Chris Lemens

    Ken:

    What I like about this opinion is the judge’s willingness to take seriously the requirement that someone seeking to prove that a contract is ambiguous must show that both conflicting interpretations are reasonable. So many judges seem unwilling to call BS on the question of reasonableness. It’s another reason this court is to be congratulated.

    Chris

  • AWrightBurkeMPhil

    A few comments:

    1/ “A and/or B” is clear. It means “A, B, or both.”

    2/ “[I]f and/or links more than two items, it’s flat-out ambiguous.” –Ken Adams.

    3/ The case at hand involved using and/or to link more than two items, so it was, per Ken Adams, “flat-out ambiguous.”

    4/ For the insured to win, however, one of the possible meanings of and/or has to favor the insured, because the rule of interpretation is not “where there’s an ambiguity, the insured wins the case,” but rather “where there’s an ambiguity, the court will pick the meaning that favors the insured if there is one.” If there isn’t one, the insured can still lose.

    5/ The insured wanted the court to read and/or to mean “and.” But arguably “and” is one thing “and/or” cannot mean, since the policy uses “and” elsewhere.

    6/ So the court could have concluded that although the exception to the exclusion was ambiguous, none of the possible readings helped the insured.

    7/ So I think the court’s decision was correct, possibly for the wrong reason. That’s not the important thing, though, as Ken would say. The important thing is the drafting takeaway.

    8/ The proper drafting takeaway is twofold:

    (a) “A and/or B” is clear and harmless but drafters should reject it anyway as spittle-flecked; and

    (b) Drafters should never use and/or to link three or more items because doing so is “flat out ambiguous.”

    9/ This business of carving up drafting evils into “benign” and “malign” kinds is no good. If drafters are supposed to reject *all* drafting evils, it’s irrelevant whether some people hate certain rejected evils to excess. –Wright Burke

    • http://www.adamsdrafting.com/ Ken Adams

      So once again, A. Wright Burke spots a nuance that I missed, and invokes MSCD in the process! But I don’t think that affects my point.

      I didn’t suggest that and/or is spittle-flecked (that’s not an image I would want to use too often); instead, I said that courts inveighing against and/or engaged in spittle-flecked invective.

      I concur that one should be absolutist and reject all usages that are suboptimal. But some suboptimal usages create more problems than others, and I permitted myself to note that I don’t get as worked up about and/or as some others do.

      • AWrightBurkeMPhil

        In calling and/or “spittle-flecked,” I borrowed your colorful image to mean “highly controversial.” Can’t a fella engage in a little metonymy? (Or am I thinking of synecdoche?) You seem perversely proud not to be part of the and/or lynch mob. Me, I’ll carry the rope. And/or is never necessary and always yucky. It vexes the spirit. “Benign,” ptui! Whoops, sorry about the spittle!

  • Eddie Walker

    For situations where you list our 3 or more items and want to convey the “and/or” concept, how about “any, some or all of the following: (i) blue items, (ii) red items, and (iii) pink items”? Yes there is a redundant “and” there between (ii) and (iii), but the lead-in seems controlling. You could also do a list (indented and set off in the text) with no “and” between them to avoid that. In other words:

    “………any, some or all of the following:
    1. Blue items

    2. Red items
    3. Pink items”

    This is similar to, but more detailed than, your suggestion in 2012 of using “one or more”, and covers the notion that any one of the 3 things, any two of the three things or all three of the things will satisfy the qualifier.

  • Jery

    NIce post. Although you’re right about “and/or” not being the greatest drafting sin, it’s still terrible style. Is the forward slash “/” now a letter of the alphabet? For example, does it take a singular or plural form? If I use “or,” I would say, “A, B, or C is prohibited.” If “and,” “A, B, and C are prohibited.” But what do I say with “and/or”?