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By: Seth F. Kirby
When describing insurance coverage analysis to individuals unfamiliar with the nature of my practice, I often compare it to assembling a puzzle. Coverage counsel has to examine the claim presented to determine if it fits within the framework of coverage set forth in the insurance contract. Of course, the puzzle pieces that we are examining, and the framework in which they are placed, are not three definitional objects with tangible shapes. The puzzle pieces that we use to define coverage and set forth claims are words. Unfortunately, words are imprecise and frequently fail to adequately express our desires. The scope of coverage provided by a policy, the nature of a claim asserted by a plaintiff and the applicability of a policy exclusion can turn on the interpretation of a single word or phrase.
In cases involving the interpretation of insurance policies, courts across the nation will frequently cite the maxim that words are to be given their common and ordinary meaning. Nevertheless, convincing a court what a particular word means is always a difficult proposition, and if an ambiguity exists, then it will be construed in favor of coverage. A carrier can legitimately believe that a word or phrase is crystal clear, only to be told that its interpretation is flawed. Why does this happen?
A recent article published on Slate.com may provide some insight regarding this question. In “Why Do You Think You’re Right About Language? You’re Not.” author Gretchen McColloch investigates a concept known as “micro-language.” In short, she explains that “micro-language” is the intuitive sense of what sounds like proper use of the English language and what doesn’t. The intuition is developed based upon the listeners’ interactions with other speakers throughout their life. It is shaped by geography, education, age, gender, level of education, family influence and other factors. “A doctor who watches a lot of sci-fi will have a slightly different vocabulary than a lawyer who reads a lot of historical fiction, and both of them will have a slightly different vocabulary from their neighbor who’s a birdwatcher. Just as no two people live the same life, no two have the same set of linguistic influences. In other words, no two people end up speaking the same language.”
Ms. McColloch’s article is a fascinating exploration of what it means to use “proper” English. For instance, in the South it would be “proper” to tell someone that you “might could” pick them up from the airport, while the phrase “could might” would be rejected as inappropriate. Why? Because that is the way we say it. Understanding these differences and adapting to your audience can be the key to effective communication.
From an insurance coverage perspective, we must continually remind ourselves that our puzzle pieces may not convey the meanings that we ascribe to them. If we forget that words and phrases can mean different things to different people, we run the risk of walking into surprise outcomes. One such surprise outcome that turns on the interpretation of a phrase will be addressed in an upcoming blog post. In the interim, to the extent that you are interested in “micro-language,” Ms. McColloch’s article can be found at: http://www.slate.com/blogs/lexicon_valley/2014/05/30/arguing_over_language