The Need for a Contra Pertinacia Canon of Insurance Policy Construction скачать в хорошем качестве

The Need for a Contra Pertinacia Canon of Insurance Policy Construction

Jeffrey W. Stempel, Doris S. & Theodore B. Lee Professor of Law, University of Nevada William S. Boyd School of Law Although the Latin word pertinacia can have the positive meanings of perseverance, firmness, and constancy, it also has negative meanings of obstinacy, defiance, and stiffness. In the realm of insurance policy construction, pertinacia manifests in the refusal of insurers (both individual carriers and the industry as a whole) to define terms (or improve the existing definitions of terms) that have proven problematic as reflected by a significant history of disputes over the meaning of the undefined or poorly defined term. Examples are the commonly litigated issues of what comprises an “accident” or “physical” injury, “loss”/”loss of use”, “damage”, and “professional services.” Where insurers have persisted in failing to define a term or correct a recurringly problematic definition, a party in dispute with the insurer regarding the meaning of the term should benefit from a contra pertinacia canon of construction that creates a rebuttable presumption in favor of an interpretation favoring coverage. Although the contra pertinacia canon cannot create coverage in the face of clearly contrary policy language supported bycontextual/extrinsic evidence, properly applied it would enhance the well-established contra proferentem canon so that in practice an insurer that persists in failing to clarify coverage cannot engage in opportunistic efforts to deploy its repeat player status to exploit undefined terms to the detriment of policyholders.