Another Case Holding that “Including But Not Limited To” Is Restrictive

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):

VI. Exclusions

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.

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.