…and that I know because David Rossmiller said it was in an article he wrote on Plain English for the Spring 2008 issue of the Oregon Association of Defense Counsel.
In a 1985 article about the drafting of State Farm’s anti-concurrent-cause provision, Michael E. Bragg, an in-house lawyer with the insurer, said drafters made attempts to reduce the clause to language the layperson could understand, but they failed. When the drafters made the language understandable to the average person, they considered the language insufficiently precise to do what it was intended to do, which was (1) to contractually overturn the so-called “efficient proximate cause” analysis, a common law default rule that almost all jurisdictions use to analyze first-party property loss in the absence of a different, contractually mandated analysis; and (2) to stop the spread of new, judicially created causes of loss,and confine covered causes of loss only to those that companies intended to insure. This is important to remember because it is the key to the limits of Plain English laws.
As the Bragg article shows, simplified language was unsuitably risky because it did not address the court precedents that insurers wanted to cancel out. It did not contain the terminology and phrases used by the courts, nor did it accurately state the jargon of insurance causation, where words like “concurrent” and “sequential” have meanings far different and more complicated than their meanings in common parlance. Insurers, then, do not write for consumers, they write for courts.
This revelation was written as support for the points Rossmiller makes points questioning the value of Plain English laws for consumer contracts that have been enacted in some 35 states, including Oregon.
Typical of these kinds of laws is ORS 180.545, which says that a contract—such as an insurance policy—must use “primarily simple sentences,” present tense and active voice whenever possible, “words that convey meaning clearly and directly,” adequate margins for ease of reading, and frequent section headings.
If the Oregon law is as typical as Rossmiller indicates, the result is 35 states with a working definition of Plain English writing that makes related law ineffective and actual coverage, as Judge Senter said, illusory in a hurricane.
Typical views Plain English as simplified text and gives no consideration to the critical role of format. Ironically, this limited perspective is due in large part to the work of Rudolf Flesch credited in Rossmiller’s article.
The Plain English movement for legal prose grew out of the work and advocacy of such people as Rudolf Flesch,who fled to the United States in 1938 from Austria when it was annexed by Nazi Germany. After World War II, Flesch became an enormously influential writer on readability and use of clear, precise language. His many books include one that has entered English as a stock phrase, Why Johnny Can’t Read…
The “Show readability statistics” tool found in most word processing software is the electronic application of Flesch’s readability tests.
For the purpose of providing an example, the text below is the anticoncurrent causation language in a State Farm policy, quoted with the accuracy confirmed in the the Blalock deposition from Tejedor v State Farm
We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such losses regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these.
The text has a readability score of 61% with a 7.4 grade level score when measured by the readability statistics tool in Microsoft Word.
However, the readability decreases when the flood exclusion is considered:
Water damage, meaning: (1) flood, service water, waves, tidal water, tsunami, seiche, overflow of a body of water or spray from any of these, all whether driven by wind or not.
The exclusion alone has a readibility score of 47.1% with a related grade level score of 12.0. When combined with the previously quoted text, the result is the readability score decreases to 58% and the grade level increases to 9.5 .
Although Rossmiller’s article makes it clear that insurers write policy language for the courts, the controlling decision of the Fifth Circuit, Leonard, contains nothing indicating the Courts considered the inherent ambiguity cited in his article or the one he referenced
one of a very few law review articles that generally adheres to Plain English theory, and it is destined to become a classic work on the reasons for continued ambiguity in policy drafting.
Neither is there any indication the Fifth Circuit considered the implications of the reading level of consumers in the Court’s jurisdiction. However, as Rossmiller points out, precedent…acquires actuarial value as a known quantity.
No doubt, the known quantity of proficient readers, too, has actuarial value that is also one of the reasons for continued ambiguity in policy drafting – one that renders Contra Proferentem moot when there is an associated responsibility for policyholders to have read and understood an insurance policy.
If you asked 100 State Farm agents what is the purpose and effect, I would guess that 0 would answer that it overturns efficient proximate cause or that it negates coverage of wind damage that preceded flooding. The Insurance Commissioner should disallow it or allow it only if the company issues clear guidance to agents and policyholders explainig how it would apply to specific circumstances, especially wind and/or flood losses, and establish some burden for the insurer to prove the distinction between concurrent losses and separate losses.
Also, I would say ACC should disqualify a company from participating in NFIP because assigning 100% of combined wind/flood losses to the flood policy would violate the fiduciary obligation to NFIP and taxpayers.
Not one adjuster deposed has said the ACC was clear and unambiguous. Recently, a State Farm adjuster testified that application of the ACC to take away coverage for covered losses would be “wrong” and he “would want no part of it.” Yet, he admitted he did exactly that when adjusting the clients’ h/o claims.
All of this goes back to the wind/water protocol. If State Farm had simply re-enforced its own materials and allowed its adjusters to use their common sense in conjunction with objective, meteorological data many claims would have been handled fairly. I am not saying all amounts owed would have been paid, but the “arbitrary and capricious” element required for penalties, at least in La., would have been difficult to prove.
On the other hand, who knows how much money State Farm saved by implementing the Protocol and shorting insureds.