I Was Hanged by a Comma
The Comma and a Policy of Insurance
Legend has it that these were the last words uttered by Sir Roger Casement shortly before the King’s Executioner pulled the lever, thereby causing poor Sir Roger to be hanged until dead.
Born in 1864, Sir Roger Casement worked for the British Foreign Office and was knighted for his humanitarian work to prevent human rights abuses against indigenous peoples.
Growing mistrustful of imperialism, Sir Roger retired and became active in Irish Republicanism and other separatist movements. During World War I, he endeavored to gain German military aid for Irish independence. As a result of this attempt, Sir Roger was arrested, stripped of his knighthood and honors, and convicted of high treason.
The acts which resulted in Sir Roger’s conviction included trying to persuade Irish prisoners of war held in Germany to form an Irish brigade to fight against the British. During his trial, Sir Roger’s Counsel argued that acts performed outside of the United Kingdom could not amount to treason within the U.K. This argument was based on an interpretation (favorable to Sir Roger) of a statute that outlined what constituted treason.
The following text of the act became the crux on which Sir Roger’s life depended:
if a Man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere…
Sir Roger’s counsel argued that the quoted words resulted in two offenses: levying war against the King in his realm and adhering to the King’s enemies in his realm.
Counsel further argued that the phrase giving to them aid and comfort in the realm or elsewhere explained only how assistance might be given to the Crown’s enemies. To put it another way, counsel argued that the assistance had to be given in the King’s realm but that the effect of said assistance could be to aid such enemies wherever they might be located.
The prosecutors argued that, due to the placement of the comma before the word elsewhere, the statute provided for three acts of treason and not two:
- Levying war against the King in his realm;
- Adhering to the King’s enemies in his realm; and,
- Giving to the King’s enemies aid and comfort in his realm or anywhere else.
The decision favored the prosecution, and conviction, appeal, and a hanging by the neck ensued, all due to the inclusion of a comma.
Writing in 2008, Bill Wilson observed, “there have been problems with interpreting long, convoluted sentences in legal documents since at least the 14th century. Usually, the stakes are not as high as they were in the case of [Sir Roger Casement].” 1
A quick search for appellate cases discussing the comma results in almost 10,000 decisions in which the comma played a role. A huge number of cases have been influenced by this seemingly insignificant mark. Although the stakes may not be as high as they were for Sir Roger, the same may be said of an insurance policy interpretation.
In 2008, at issue was the interpretation of the phrase: “personal injury means injury, including bodily injury or mental harm arising out of any of the following acts...” (Liebovich v. Minn.Ins.Co.)
The insured argued that the phrase in dispute meant injury including but not limited to, while the insurer countered with injury, including and limited to.
Ruling in favor of the insured, the court concluded that the subject policy, by employing “a comma followed by the word ‘including’ (denoted) a non-exhaustive list.”
It is interesting to note that the court then proceeded to analyze other policy provisions and devoted several paragraphs to discussing the presence, placement, absence, and function of a comma. The inclusion of the controversial comma can make a significant difference in meaning.
“Let’s eat, grandma!”
“Let’s eat grandma!”
Humorously, even a draft of this article sent to one of my cohorts resulted in a comma-based misinterpretation. When said cohort advised that it would be a couple of days before he would be able to review it, I intended to respond, “no hurry, Mark.” But in my haste, I wrote, “no, hurry Mark,” unintentionally incurring his wrath.
1Excerpts from “When Words Collide, Resolving Insurance Coverage and Claims Disputes, Bill Wilson, 2018
Damage to Beachfront Property Caused by Storm Surge
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When a winter storm resulted in damage to a showcase beachfront property, the comma became the focus of attention in interpreting what the policy covered.
The policy covering the property contained a broad definition of flood, which clearly applied to the storm surge. The policy also listed an amendatory endorsement containing the following modifying provision: “This Policy excludes loss or damages…(caused by)… Flood, Seepage, or Influx of water from natural underground sources below the surface of the ground….”
The carrier argued that the quoted provision should be read as excluding both a flood AND seepage or influx of water from natural underground sources below the surface of the ground and, therefore, the loss and damages were excluded.
The argument made on behalf of the insured asserted that the quoted provision could, logically, be read as excluding a flood FROM natural underground sources below the surface of the ground. Since it is axiomatic that, where an insurance policy contains an ambiguity, it is to be strictly construed against the drafter (the carrier) and coverage must be afforded.
The question arose: could support for the insured’s interpretation of the provision be found? The answer was affirmative. Legal research disclosed some very useful dictum:
The ‘life’ of each party’s argument depends on a single comma. A comma is ‘used to indicate a separation of ideas or of elements within the structure of a sentence (or) a pause or separation. Generally, in a series of three or more terms, a comma is placed after each individual term in the series with the exception of the last one.
Applying these principles to the matter at hand, the following argument was made: the comma, in the disputed provision, was placed after both flood and seepage. Accordingly, the phrase from natural underground sources below the surface of the ground modifies all three terms in the exclusion: 1) flood, 2) seepage, and 3) influx of water.
For the carrier to prevail, the provision should not have contained a comma after the word seepage. Had this been the case, the comma after flood would have clearly indicated a separation of ideas within and the exclusion could have, reasonably, been interpreted to exclude damage from both flood (defined so as to include storm surge) and, separately, seepage or influx of water from natural underground sources below the surface of the ground.
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A second example of a case in which the comma’s importance changed the outcome depended on the absence of the comma in a coinsurance controversy. The policy provision at the center of the dispute provided that the limits of the carrier’s liability for loss shall not exceed:
With respect to all units at any one named additional or temporary location or units in transit: the applicable limit of liability stated in the Schedule provided that the (Carrier) shall not be liable for a greater proportion of loss to any one unit than the total limits of liability for all named locations bears to the aggregate Actual Cash Value of all units covered….
The carrier argued that this coinsurance provision had the same meaning as if it read “with respect to all units at any one named, additional, and temporary location” including the named location at which the loss occurred.”
But, in fact, the provision did not have commas after each of the items: named, additional, or temporary locations. Accordingly, it was argued, on behalf of the insured, that the coinsurance penalty clearly was applicable to only two types of locations, in addition to units in transit: named additional or temporary. There should be no coinsurance penalty for the loss sustained at the originally named location.
The Missing Ring
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Still one more example of the importance of the comma is illustrated by a dispute over coverage of a missing ring.
The case revolved around a policy provision insuring against all risks of loss of or damage arising from any cause whatsoever except “unexplained loss, mysterious disappearance or loss or shortage disclosed on taking inventory.”
The insured entrusted her diamond ring to another. From that point on, no one knew what happened to the ring. It was inexplicably lost.
Both the insurance carrier and the representative of the insured focused on the inclusion of the comma in the policy provision to make their case. The carrier argued that the exclusion applied to this unexplained loss or mysterious disappearance. On behalf of the insured, the following argument was made: the phrase disclosed upon taking inventory was not set off by a comma. Thus, it would appear that the phrase was intended to modify disappearances, losses or shortages discovered upon inventory taking. Disappearances or losses not involving an inventory were, thusly, covered.