What Is the Meaning of "Plain Meaning"?

• Pages: 551-620
• Date: 01 October 2021
• Published date: 01 October 2021
• Author: Jeffrey W. Stempel
• Subject Matter: Administrative & Public Law

551

* Doris S. & Theodore B. Lee Professor of Law, William S. Boyd School of Law, Univer-

sity of Nevada Las Vegas. Thanks to Tom Baker, Bill Boyd, Ryan Buschell, Andy Cao, Jay

Feinman, Chris French, Julie Furgerson, Dan Hamilton, Yong Han, Helmut Heiss, the

late Doris Lee, Ted Lee, Randy Maniloff, Leo Martinez, Jay Mootz, Lorie Masters, David

McClure, Ann McGinley, Adam Scales, Jeff Thomas, and Charles Yuen as well as colleagues

in the American College of Coverage Counsel (ACCC), the Project Group for the Principles

of Reinsurance Law (PRICL), and the ALI Restatement of the Law of Liability Insurance

process. This article is derived from a manuscript and panel presentation of the 2019 Annual

Meeting of the ACCC. The views expressed, of course, are mine and should not be attributed

to those cited or thanked. © 2021 Jeffrey W. Stempel.

WHAT IS THE MEANING OF “PLAI N MEA NING”?

Jeffrey W. Stempel*

I. Introduction: Plain Meaning: Traditional, Dominant,

Ubiquitous—But Still Insufficiently Explained

and Under-Theorized ..................................................................552

II. Plain Meaning Synthesized—Sort Of .........................................554

A. Deciphering Secondary Sources and Separating Plain

Meaning Textualism from Kindred Concepts ...................... 554

B. Treatise Treatment of Plain Meaning ..................................557

1. Farnsworth .......................................................................557

2. Calamari & Perillo ...........................................................560

3. Corbin ...............................................................................562

4. Williston ...........................................................................562

5. Ferriell ..............................................................................563

6. The Department of Justice ..............................................563

7. The ALI Approach(es) ......................................................564

8. Corpus Linguistics ..........................................................569

9. Layperson Surveys ............................................................571

C. Dictionary Definitions ..........................................................571

III. Illumination by Opposition: The Thomas Drayage Less

Textual Approach Favoring Regularized Consideration

of Contextual Information ...........................................................572

Tort Trial & Insurance Practice Law Journal, Fall 2021 (56:3)552

IV. A Tentative Plain Meaning Scorecard:

The California/New York Divide ................................................ 576

V. State Statutes on Plain Meaning and Contract Interpretation ... 580

VI. Judicial-Legislative Tension: TheConnecticut Example ........... 587

VII. Judicial Treatment of Plain Meaning ......................................... 595

A. Generalized Tautology ..........................................................595

B. Partial Explanation ................................................................596

C. More Pronounced Attempts to Articulate and Defend

the Plain MeaningConcept ..................................................598

1. Contract Case Examples ..................................................598

2. Criminal Case Illustrations ..............................................602

D. Labeling Problematic Policy Text Ambiguous Rather

Than Applying More Comprehensive Construction ...........606

E. The (Beneficial) Inconsistency of Courts Avoiding

Arguably Clear Policy Language Without Disavowing

the Plain Meaning Approach ................................................607

1. Anti-assignment Clauses ..................................................608

2. Rejecting Literal Application of Pollution

Exclusion Text .................................................................. 608

3. Earth Movement Exclusions ............................................609

4. Treatment of Retentions and Deductibles ....................... 609

5. Use of a Motor Vehicle Provisions .................................. 610

6. Declining Strict Enforcement of “Visible Marks”

Requirements ...................................................................611

7. Narrow Construction of the Business Pursuits

Exclusion ..........................................................................611

8. Refusing Literal Enforcement of Representations

or Warranties ........................................................................611

9. Refusing Strict Enforcement of Time Limit Conditions ... 612

VIII. Conclusion ..................................................................................... 612

Appendix A: State Statutes on Contract Interpretation ........................... 619

I. INT RODUCTION:

PLAIN M EANING: T RADITIONA L, DOMINAN T, UBIQUITOUS—

BUT STILL I NSUFFICIE NTLY EXPLAI NED AND U NDER-THEORIZED

The term “plain meaning,” as well as its cousins “ordinary” meaning,

“clear” text, “unambiguous language,” and the like have been with us for

decades, perhaps even centuries. But both legal decisions and commenta-

tors nonetheless continue to lack a uniformly clear (“plain,” if you will)

understanding of the concept. Notwithstanding this lack of uniformity,

the plain meaning approach not only persists but has recently attracted

increased attention in the wake of the American Law Institute’s Restate-

ment of the Law of Liability Insurance (“RLLI”), which both endorses a

What Is the Meaning of “Plain Meaning”? 553

“plain-meaning” approach to the interpretation of insurance policies and

bravely seeks to define it.1

Section 3 of the RLLI is largely a victory for textualists, but not as

resounding a victory as some sought. Critics regard the RLLI definition

as insufficiently faithful to the concept of plain meaning and have argued

for a more strictly textualist approach to policy construction, rather than

what they regard as a sub silentio contextualist approach unduly receptive

to extrinsic evidence.2

However, even if the contextualists had prevailed in the RLLI, this would

hardly have diminished the force of the plain meaning concept in existing

and continuing caselaw. For example, LEXIS contains more than 2,700

decisions using plain meaning nomenclature issued during the first half of

2021 alone.3 Many of these are statutory interpretation opinions but, even

if statutory and contractual interpretation could be neatly separated (my

thesis is that they should not be), it is clear that plain meaning textualism is

indeed the dominant approach to construction of contracts. As reflected in

Appendix A, a significant number of states have statutes mandating a plain

meaning approach. Although precise classification of the states according

to their embrace of plain meaning textualism is impossible due to vari-

ance in cases, court composition, and inconsistency in the invocation of the

concept, there seems little doubt that most states follow a plain meaning

concept or “rule.”

But identifying the supremacy of the plain meaning rule does not answer

the question of what exactly it means to take a plain meaning approach to

the language of contract documents, nor does it explain the methodology

used by courts in discerning plain meaning or its absence (in which case,

even textualists agree that extrinsic and contextual evidence is relevant in

resolving unclear text). Perhaps the term has become merely a buzzword

or a veneer placed upon an already decided result. A deeper analysis is

required to determine what exactly is meant by the term “plain meaning”

other than what a judge in a particular case thinks it means. As discussed

below, Courts are often depressingly tautological in applying the plain

meaning rule/doctrine/approach: the meaning of insurance policies (and

other documents, including statutes and regulations) is plain when the

1. See R   L, L I §3 (A. L. I. 2019) (including

Comments and Reporters’ Note) [hereinafter RLLI].

2. The debate over Section 3 as far from the only controversy involved in the development

of the RLLI, which featured vigorous debate between insurer and policyholder advocates. See

Jeffrey W. Stempel, Hard Battles over Soft Law, 69 C. S. L. R. 605 (2021).

3. A search date limited to 2021 with the single search term of “plain meaning,” conducted

July 24, 2021, produced 2,754 responsive citations, 276 of which were decided in July, leaving

a total of 2,478 for the first half of the year. If “ordinary meaning” and “clear meaning” are

included in the search, the number of cases jumps to nearly 4,000.