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Alice in Law-Law-Land

Advice for Wording Contracts

The lawyers will understand. “Yeah, that’s pretty much where I live.” But I want to take the rest of you deep inside the world of law, where words get minced, teeth get gnashed, and Alice gets invoked. A world, where, if you don’t like the definition of a word, you just make up your own.

We begin on a sunny day in Ohio. A woman is walking her dog. Suddenly, a Ford Fusion crashes into her left knee, throwing her into the air. She lands on the Fusion’s hood. The driver’s insurance company, State Farm, stipulates that their insured driver caused the accident. They also stipulate that the impact threw the woman onto the Fusion’s hood, where she “sustained further bodily injuries.” So everybody agrees that the woman has a right to recover for her injuries; a simple case, one would think: Let’s just settle, shake hands, and head to yoga. But these are lawyers, and this is the law.

State Farm promises it will pay for the woman’s “bodily injuries,” but we have two sets of "bodily injuries": one set sustained when the Fusion hit her, sending her into the air, and another set when she landed on the hood. State Farm will pay for the first set, but not for the second, because lying on the hood, the woman was not “occupying" the Fusion, and the policy pays for the second set of injuries only if the plaintiff “occupied” the car. You with me?

The court acknowledges that “Occupants are normally inside vehicles, not on them,” seeming to side with State Farm, and proving that, contrary to popular belief, judges have a sense of humor. Yet this three-judge panel rules that the woman on the hood did “occupy” the car. How can that be?

These are the cases that arise from the legal netherworld into the bright lights of the media and make people crazy. They make lawyers crazy, too, but we go to school for three years to learn how to deal with the insanity. It’s why every year thousands of us invoke Alice in Wonderland in our briefs as the only way to explain some bizarre twist of logic. (Ask any judge or judge’s clerk how often Alice appears in chambers.) State Farm’s lawyer calls the idea “ridiculous,” which of course it is; except it’s his own client’s fault. Here’s the key observation in the court’s opinion:

“[T]he parties to a contract can define its terms as they wish; and State Farm has done so here. Its policy for the Fusion defines ‘occupying’ as ‘in, on, entering or alighting from.’” (emphasis mine)

According to State Farm’s own wordsmithing, the woman is an “occupant” if she’s “on” the car, which she was, or “alighting from” the car, which I assume she did momentarily. No dictionary, legal or otherwise, defines "occupying" or “occupant” that way, but under the law, contracting parties may define any word to mean anything. (The legal profession's contract drafting guru, Ken Adams, tells me he sees "endless dispute" over words like "vehicle" and "occurrence.") The court concluded, “Per the policy’s terms, therefore, [she] was an ‘occupant’ of the vehicle and thus entitled to coverage for those additional injuries.” Sometimes we lawyers get so obsessed with defining words to mean whatever we want them to mean, we forget just to use the correct word and leave it alone. Like “occupying.”

As State Farm’s bonfire case faded to a pilot light, their lawyer argued that, whether the woman was an “occupant” of the Fusion really depended on whether she had an “intrinsic relationship” with the car. (I'm still trying to picture an example of that, but I can't get it to hold still long enough.) After seeming to insinuate that something illicit took place between the woman and the car, the lawyer had the temerity to call the woman's side of the case “ridiculous.” Even though we know better, sometimes we lawyers just can’t control ourselves. But the judges loved the word; they used it to open their opinion: “There are good reasons not to call an opponent’s argument ‘ridiculous' . . . . But here the biggest reason is: the argument that State Farm derides as ridiculous is instead correct.”

Not even WordRake can help this lawyer. My question is, What happened to the dog?

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About Gary Kinder

Gary Kinder




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