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.

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.