For diehard fans of and and or—you know who you are!—the case of Harrity v. Target Corporation, Civ. No. 07-3958 (D. Minn. Oct. 6, 2008), might be of modest interest.
The plaintiff was seeking reimbursement under Target’s medical insurance plan, but the court granted summary judgment. Among other things, the following plan language was at issue:
those health services and supplies that are:
- provided for the purpose of preventing, diagnosing or treating Sickness,
Injury, Mental Illness, substance abuse, or their symptoms;- included in Plan Highlights and Covered Health Services[;]
- not identified in Expenses Not Covered.
Note the absence of an and or or after the penultimate bullet point. That allowed the plaintiff to argue that an expense would be covered if it met any of the three criteria. The court, sensibly enough, held that that interpretation was “untenable.”
But do yourselves a favor and eliminate any possibility of such an argument—include and or or after the penultimate item in any tabulated list (whether the items are bullet-pointed or enumerated) or, if you’re dealing with bullet points, word the introductory language so as to eliminate any confusion (for example, by ending it with “and one or more of the following”).
Of course, it’s not a good idea to use bullet points in a contract, as they’re too informal and aren’t conducive to cross-referencing (see MSCD 3.30).
It’s hard to imagine someone intentionally omitting an and or or from a set of tabulated enumerated clauses in a contract. But I’ve seen stranger things. And I’m sure it has happened inadvertently any number of times.
The and might have been omitted by automated drafting software that didn’t ‘know’ which was the last item in the list.
I’ve been was working on a deal with a large insurance company, who is our customer. They drafted the paperwork, and don’t like making changes to their documents. In the last draft, there was a lot of substantive stuff we needed, so I had left their formatting alone, so as not to create issues. Today, I was writing a note to my boss with recommendations.
I had to reference the nineteenth bullet point in a section. I’d lay odds that he had to count several times.
Chris
The ambiguity in the example also could have been avoided by changing the lead-in clause to say something like “those health services and supplies that are all of the following” or “those health services and supplies that meet all of the following requirements.” [I noted this in my post—KAA.] This approach has the advantage of allowing the drafter to specify as to a following list whether “all” of the requirements must be met, or “any” of them, or “any 2” of them, etc.
Regarding the use of “and” in a list, I’ve seen the opposite extreme on many occasions – the “Lawrence Welk” school of drafting, which inserts “and” in between every paragraph of a list (e.g., 1, and 2, and 3). I’ve also seen similar usage of “or” in a disjunctive list. I think the practice is unnecessary but harmless – unless the list mixes the conjunctions (“and” with “or”) without further clarification (e.g., 1, and 2, or 3, and 4).