Policy Interpretation Sibling 

Matters of Law

A Short and Merely Suggestive Sketch 

Sean Quinn, Ph.D, J.D., Etc.
Exposition Blvd  #115
Texas 78703

Is discourse in the law about the language of an insurance policy and its meaning always a matter of law?  This is the usual view.  Witnesses are often not permitted to testify about anything near the meaning of words and phrases to be found in contracts of insurance, i.e., insurance policies. These matters are said to be matters of law and therefore for judges and not empirical matters. 

Here are two exceptions, one central going to the very core of the doctrine, and another “off to the side.” 

1. Insureds are required to read and understand the policies of insurance they purchase or that are purchased for them. This is actually an absurd doctrine that is damaging to the social order, but that is relevant here.  It is at least required of insureds that they understand their policies.

Given this doctrine, in particular. insureds ought to be able to testify about what they take their policies to mean.  The reason is that presumptions can be defeated, cancelled, rendered inapplicable or over thrown.  Otherwise, it would make no sense to say that the burden of proof rests on the person desirous of  negating the presumption. No policyholder can testify as to his, her, or its understanding of the meaning of the policy unless permitted by a court to testify as to what the policy policy language is taken to mean by him, her, or it.

2. Expert witnesses are sometimes disqualified from testifying as to the meaning of terms in insurance policies on the grounds that linguistic meaning is a matter of law and not an empirical matter, where admissible expert testimony is restricted to the empirical. That form of partial or topical  disqualification has happened to me from time to time.  

There is something similar to contract interpretation that is empirical, and that is what a term is taken to mean by components of the insurance industry, usually the community, socio-economic group, or professional group known as “adjusters.”  This understanding of meaning takes two forms.  One of them is that there is a consensus as to meaning; the other is that there is a divergence of understanding, or there are are divergences, as to the meaning of the language in the policy. Either one is an empirical matter and therefore open to testimony. 

Of course not every systematic disagreement as to policy language entails (or even implies) that there exists an ambiguity. But that fact does not matter, since the understanding of an adjuster can affect whether there has been a breach of contract on the part of the insurer.  Obviously this matter may pertain to issues of insurer bad faith, but it need not.  Under either type of these two situations (or both together) meaning matters.