Including “And” or “Or” in a Tabulated List

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.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.