In this November 2019 post I wrote about Princeton Excess & Surplus Lines Insurance Co. v. Hub City Enterprises, Inc., a court opinion from the U.S. District Court for the Middle District of Florida in which a judge demonstrated catastrophic misunderstanding of how the English language works.
In an update to that post earlier this month, I noted that in December the appellants had filed with the United States Court of Appeals for the Eleventh Circuit a brief that cited my post extensively. But a hot-off-the-presses opinion makes me uncertain whether the Eleventh Circuit will dispel the confusion in Hub City.
The new case is Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499, 2020 WL 415811, at *1 (11th Cir. Jan. 27, 2020) (here). Here’s the statute language at issue:
… equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.
And here’s the question we’re interested in, as the court expresses it:
The first question is what to do with the clause: “using a random or sequential number generator.” Does it modify both verbs (“to store” and “[to] produce”) or just one of them (“[to] produce” but not “to store”)?
So we’re dealing again with syntactic ambiguity, or rather alleged syntactic ambiguity. The court prefaces its analysis with “Start with conventional rules of grammar and punctuation”—never a promising sign.
What it says next is unobjectionable:
When two conjoined verbs (“to store or produce”) share a direct object (“telephone numbers to be called”), a modifier following that object (“using a random or sequential number generator”) customarily modifies both verbs. Consider these examples to see the point. In the sentence, “Appellate courts reverse or affirm district court decisions using the precedents at hand,” no one would think that the appellate judges rely on precedents only when affirming trial judges.
But then things start to go wrong:
Or if a law gives tax preferences for “[a] corporation or partnership registered in Delaware,” then “a corporation as well as a partnership must be registered in Delaware” in order to be eligible for the preference. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 148 (2012).
This example is unrelated to the previous one and, as such, it bears no relation to the language at issue. Furthermore, it’s contentious. Based on the wording of the example, I agree that the better reading is that it’s unambiguous. But if you add an a before the word partnership, you have two possible meanings. Make both nouns plural (corporations or partnerships) and you have two possible meanings; you can find virtually the same example on page 294 of A Manual of Style for Contract Drafting.
Aside from the fact that this example is irrelevant, the problem is that they’re looking to a book on principles of interpretation for guidance on “conventional rules of grammar and punctuation.” Big mistake: principles of interpretation offer an expedient way to resolve disputes over confusing contract language without having to determine which of two or more alternative meanings the parties actually intended. If you use principles of interpretation to eliminate the possibility of alternative meanings, you’re abusing principles of interpretation.
Capping things off is the next element of the court’s analysis:
On top of that, the sentence contains a comma separating the phrase “to store or produce telephone numbers to be called” from the phrase “using a random or sequential number generator.” That, too, indicates that the clause modifies both “store” and “produce” and does not modify just the second verb.
But the first element of the court’s analysis points to there being only one meaning. That renders the comma irrelevant.
Furthermore, in attributing significance to the comma the court in effect invokes (to quote a case the court cites, Yang v. Majestic Blue Fisheries, LLC, 876 F.3d 996, 1000 (9th Cir. 2017)), “the punctuation canon, under which ‘a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one [where the phrase] is separated from the antecedents by a comma.'” But that principle of interpretation was resoundingly debunked by yours truly in this 2015 article, with the help of linguistics guidance from the great Rodney Huddleston. Yes, it’s still widely accepted, but having company as you follow the herd off the cliff doesn’t make you any less wrong.
So in their analysis of the structure of the language at issue, the court reached the right decision despite going awry. This is just the latest of many examples showing we can’t rely on courts to know what they’re doing in resolving disputes over ambiguous language. With contracts, it’s best to be an informed consumer of contract language, so you can spot and fix actual or potential ambiguity and increase your odds of staying out of court.
I’m keeping my fingers crossed for the Hub City appellants.
(My thanks to longtime reader Chris Lemens for bringing this case to my attention. Chris and I co-authored a 2015 ACC Docket article, Fixing Your Contracts: What Training in Contract Drafting Can and Can’t Do (here).)