You might recall that in this September 2015 post I discuss how Bryan Garner has defied anyone to produce a case in which including but not limited to has been held to introduce an exhaustive listing—in other words, a case in which the list following including but not limited to has been held to restrict the meaning of the general class.
In my post I cite three cases that do just that; I now offer you a fourth.
In Holy Angels Academy v. Hartford Ins. Group, 127 Misc. 2d 1024, 487 N.Y.S.2d 1005 (Sup. Ct. 1985) (PDF here), the plaintiff sought to recover from an insurance company for cracking and separation of walls and ceilings caused by shifting earth under the plaintiff’s property due to construction of a light rail system.
One of the insurance-policy exclusions at issue was the following (emphasis added):
This policy does not insure under this form against:
D. Loss caused by, resulting from, contributed or aggravated by any of the following:
1. Earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising, or shifting; …
The court held that the insurance company wasn’t exempt from liability:
Defendant maintains that the language of the exclusion barring any coverage resulting from “earth movement” … is clear and unambiguous, falling squarely within the acknowledged operative facts of Plaintiff’s loss.
This Court is unable to so conclude, but rather, agrees with Plaintiff’s contention that these words must be read in context with those that surround them (ejusdem generis) and, therefore, are limited in application to natural phenomena.
Upon review, this Court finds that it is not unreasonable for an ordinary individual reading the policy language … to conclude that this exclusion was designed and intended to remove from coverage, property damage occurring from such natural causes as earthquakes, landslides and mudflows …. [T]he policy holder is merely limiting the exclusionary clauses to those same general kind and class of perils as enumerated in companion language.
According to the court, use of including but not limited to did not preclude application of the principle of interpretation known as ejusdem generis, which has it that general words, when combined with specific items or examples, apply only to things of the same kind or class as the specific things. That’s why this case too meets Garner’s challenge.
Incidentally, I learned about this case from the manuscript of @ProfJoeKimble’s in-depth new article on ejusdem generis, which will be published in the spring issue of Judicature. I’ll let you know when it comes out.
12 thoughts on “Another Case Holding that “Including But Not Limited To” Is Restrictive”
So how would you have written the exclusion to cover both natural and man-made earth movement (and would you have to add special language for gophers, space aliens and other non-human third-party agents)?
Your comment itself shows the way: ‘Earth movement, whether natural or man-made, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising, or shifting’.
My own notion, which I think Ken deems ‘bizarre’, would be to say this: ‘Earthquake, landslide, mudflow, earth sinking, earth rising, shifting, man-made earth movement, or other similar or dissimilar earth movement’. (I would ban the use of ‘including’ altogether as a breeding ground of trouble.)
Garner’s suggestion would be better — still not good, but better — if he suggested an internal rule of interpretation along these lines: ‘Including’ means ‘including without limitation’, so that terms following it are neither exhaustive nor affected by ejusdem generis’.
Loved reading about this! Not being a lawyer but a translator, I read “including but not limited” is used by one too many insurers to limit their own liability, not to inform the consumer about the extent of said liability. At any rate, a well-written clause will be comprehensive and leave unforeseen circumstances or causes to be resolved by good faith arbitration, depending on the forum, of course.
‘Including but not limited to’ can in theory be held restrictive in either of two ways: (1) exhaustive (full list given), or (2) ejusdem generis (not exhaustive, but the unlisted items must be like the listed ones).
As I read Garner’s challenge, he’s denying the existence of real life examples of the first kind of restriction, not of the second kind.
By rephrasing his challenge (‘in other words’), you broadened his denial to cover both kinds of restriction.
Holy Angels is an example of the second kind of restriction, the existence of which Garner doesn’t deny.
Garner’s advice to define ‘including’ as ‘including but not limited to’ is bad, but be fair even to the erring, which too often ‘includes’ me.
I don’t think that’s a meaningful distinction. I suggest that the only question is whether what follows including limits, to whatever degree, the general class. But thanks for pointing it out.
Are you saying Garner isn’t making the distinction or that he’s wrong to do so? His words are: ‘I defy anyone to produce a case in which… *including* defined in this way has nevertheless been held to introduce an exhaustive listing’.
I’m aware of what Garner says; I use the phrase “exhaustive listing” at the top of this post. But I unconsciously chose not to take it at face value, and now I consciously do so. If the ostensible function of including but not limited to in “fruit, including oranges, lemons, and grapefruit” were to ensure that the meaning of “fruit” isn’t limited to just oranges, lemons, and grapefruit, that would be too narrow to be of use. I suggest that anyone who uses including is worried about any limitation, including the suggestion that “fruit” must mean citrus fruit.
But it’s important for me to be aware of this nuance, so thanks.
Sadly, issues like this seem to give credence to rhetoric – e.g. deleting the list of examples and exclaiming “Earth movement of any kind whatsoever, however it occurs and no matter who or what in the hell was responsible for it!”
From my perspective as a lawyer who spends most days drafting, cases like this are just unhelpful and smell like the judge worked backwards from the desired end result.
Whether or not the examples are limiting, one needs to look at the term itself. I don’t know if the phrase “earth movement” is US insurance industry jargon, but for me it feels too much like a natural phenomenom. It hasn’t been defined as such, apart from the examples. If I had been drafting an insurance policy, and wanted to exclude weakening of the foundations due to someone else’s construction activities, I probably wouldn’t have used that term.
I note that one of our (UK) office policies has exclusions for “subsidence” and “earth heave” (neither of them defined). Earth movement sounds to me like earth heave, and both sound natural, while subsidence could be caused by manmade activities.
For me, this is not the best case to test the interpretation of examples. Unfortunately (in my view) the judge has jumped too readily for saying that ejusdem generis applies.
It so happens that I’m not interested in the details of this example. All I care about is how the judge treated including but not limited to. It adds to the evidence that one shouldn’t touch it with a ten-for pole.
I’ve always subscribed to what I read in “Dreidger” (leading Canadian text on statutory interpretation) that using “but not limited to” is redundant. If anything, I would argue that the earth movement is based on natural reasons and not man-made in this case. By its very nature, how could “but not limited to” be redundant?
I have a copy of Driedger, but I think the field has advanced quite a bit in the past thirty years.