THE DEMISE OF "CONTRA PROFERENTEM" AS THE PRIMARY RULE OF INSURANCE

CONTRACT INTERPRETATION IN OHIO AND ELSEWHERE

Author(s): Ed E. Duncan
Source: Tort Trial & Insurance Practice Law Journal , SUMMER 2006, Vol. 41, No. 4
(SUMMER 2006), pp. 1121-1140
Published by: American Bar Association

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THE DEMISE OF CONTRA PROFERENTEM AS THE
PRIMARY RULE OF INSURANCE CONTRACT
INTERPRETATION IN OHIO AND ELSEWHERE
Ed E. Duncan

I. INTRODUCTION

The doctrine of contra proferentem, also referred to as the ambiguity rul

or the contra-insurer doctrine, is perhaps the best known rule of insuran
policy construction.1 It holds that ambiguities in insurance policy languag
are to be construed stricdy against the insurer.2 In the context of ot
contracts, it also applies; any unclear language is construed against
contract's drafter.3
An equally well-known tenet of contract interpretation is the paramoun
goal of effectuating the intent of the parties.4 Where this rule comes int
conflict with the ambiguity doctrine, the ambiguity doctrine should yiel
However, where the contract in question is an insurance policy, in O
and elsewhere, the rule of contra proferentem often trumps the parties'
tent.5 Ironically, this is often true despite explicit judicial proclamati

1. 2 Couch on Insurance ? 22:14 (3d ed. 1995).

2. Id. Contra proferentem means literally "against the one who proffers." See, e.g., Ch
Leaman Tank Lines Inc. v. Aetna Cas. & Sur. Co., 817 F. Supp. 1136, 1155 (D.N.J. 1993
3. 2 Appleman on Insurance ? 5.1, at 7 (3d ed. 1996) (insurance policies a form of c
tract); 11 Williston on Contracts ? 32.12, at 472 (4th ed. 1999); 5 Corbin on Contr
? 24.27, at 282 (rev. ed. 1998).
4. Williston, supra note 3, ? 32:2, at 396; Corbin, supra note 3, ? 24.5, at 15. Altho
"interpretation" and "construction" are used interchangeably by most courts, including th
in Ohio, the technical distinction between the two terms is that "interpretation" determi
the meaning given by the parties to the language of the contract, while "construction"
termines the legal operation or effect of the contract. Corbin, supra note 3, ? 24.3.
5. See infra Parts V; VII.

EdE. Duncan (ed.duncan@tuckerellis.com) is a partner in the Cleveland office of Tu

Ellis & West LLP, specializing in insurance coverage including general and professi
liability, E&O, life, accident and disability, personal lines, insurance bad faith litiga
as well as general civil litigation.

1121

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 1122 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

that insurance policies are contracts like any other, which must be inter
preted by utilizing the familiar rules of construction and interpretation
applicable to contracts generally.6
Nevertheless, before giving way to later cases that elevated the signifi
cance of ambiguity above all else, early Ohio Supreme Court decisions
flirted with the notion, and in some cases held outright, that either (1) the
intent of the parties remains paramount even where the policy language is
ambiguous; or (2) such intent is on par with the ambiguity rule.7 The Ohio
Supreme Court's recent decision in Westfield Insurance Co. v. Galatis8 pro
vides some evidence that the pendulum has properly begun to return to
ward the reasoning of these early decisions.

II. THE PRIMACY OF THE INTENT OF THE PARTIES IN BOTH

CONTRACT LAW AND IN INSURANCE LAW

As noted, the primary purpose of a court in interpreting a contract is to

determine the intent of the parties. According to one authority:

Consistent with the notion that a contract represents the parties' own private
agreement as to their legal relationship, liabilities and rights, the primary pur
pose and function of the court in interpreting a contract is to ascertain the
parties' intention so as to give effect to that intention. Indeed, the cardinal
principle of contract interpretation is that the intention of the parties must
prevail unless it is inconsistent with some established rule of law.9

Another authority succinctly states the rule: "It is generally said that in
interpreting the words of a contract, the courts seek the meaning and in
tention of the parties."10 This principle is no less established in Ohio.11
The intention of the parties is similarly of paramount importance in
interpreting insurance policies. Appleman summarizes the rule as follows:

It has been stated that the polar star of construction of an insurance contract
is the intention of the parties. It is the duty of a court, if possible, to ascertain
and carry out that intention ... regardless of whether the result is favorable
to one party or another .... All other rules of construction are subservient to

6. See, e.g., Hybud Equip. Corp. v. Sphere Drake Ins. Co., 597 N.E.2d 1096, 1102 (Ohio
1992) (citations omitted); Gomolka v. State Auto. Ins. Co., 436 N.E.2d 1347, 1348 (Ohio
1982); Dealers Dairy Prods. Co. v. Royal Ins. Co., 164 N.E.2d 745, 745 (Ohio 1960) ("A
policy of insurance is a contract and like any other contract is to be given a reasonable
construction in conformity with the intention of the parties as gathered from the ordinary
and commonly understood meaning of the language employed.").
7. See infra Parts V-VI.
8. 797 N.E.3d 1256 (Ohio 2003).
9. Williston, supra note 3, ? 32:2, at 396-97, 400-01.
10. Corbin, supra note 3, ? 24.5, at 15.
11. See, e.g., Aultman Hosp. Assoc. v. Cmty. Mut. Ins. Co., 544 N.E.2d 920, 923 (Ohio
1989); Skivolocki v. E. Ohio Gas Co., 313 N.E.2d 374, 375 (Ohio 1974).

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 The Demise of Contra Proferentem 1123

this. It is the paramount purpose of all construction of insurance policies to

ascertain the intention of the parties in entering into that contract, and to
effectuate that intention .... Insurance policies should be reasonably con
strued to accomplish that purpose.12

Another respected commentator explains:

The object of the interpretation or construction of an insurance policy is to

determine the intent of the parties, or their mutual understanding, as expressed
in the writing, so that it may be given effect according to their real purpose
and intention .... A construction which will defeat the intention of the parties
must be rejected.13

III. THE DOCTRIVE OF CONTRA PROFERENTEM IN

CONTRACT LAW

In the law of contract interpretation, the doctrine of contra proferentem is

employed only as a last resort, after application of all other rules of con
struction prove fruidess.14 It has been classified as a secondary rule to be
utilized only if the meaning of the contract remains unclear after the pri
mary rules have been applied and all other secondary rules have failed.15
Various Ohio Court of Appeals decisions support this view.
The Ohio Court of Appeals upheld the use of extrinsic evidence to in
terpret a written lease in Raphael v. Flage.16 The lease contained an option
to purchase and was drafted by the lessee. Holding a disputed payment
clause in the lease ambiguous, the trial court admitted extrinsic evidence
of prior written negotiations between the parties to aid in interpreting the
ambiguous clause. The lessor argued that the clause should have been con
strued against the drafter, but the court disagreed:

The trial court correcdy allowed evidence of the prior written negotiations,
not to show that the parties meant something other than what they said, but
to show what they meant by what they said. The trial court need not construe
any ambiguities in the agreement against Raphael [the lessee]. The "strict
construction against the drafter" maxim is not applicable, as it is only a sec
ondary rule of interpretation. Secondary rules are only applicable if the pri
mary rule fails to interpret the contract. In the case subjudice, the purpose of
the disputed clause in the agreement was clear following the application of the

12. Appleman, supra note 3, ? 5.4, at 72-74.

13. Couch, supra note 3, ? 22:7, at 22:14-22:15; 22:16.
14. Corbin, supra note 3, ? 24.27, at 297.
15. Williston, supra note 3, ?? 32:1, at 390; 32:8, at 439; 32:12, at 480 (primary rules
listed in ?? 32:3-32:7, inclusive and secondary rules in ?? 32:8-32:20).
16. No. 89CA004539, 1989 WL 109122 (Ohio Ct. App. Sept. 20, 1989) (unreported).

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 1124 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

primary rules of construction. The "strict construction against the drafter"

maxim is not applicable.17

Many other cases have reached the same result.18 For example, in Reida
v. Thermal Seal, Inc.,19 involving construction of an employment agreement,
the Ohio Court of Appeals observed:
Appellant's argument relies upon the long-standing rule of contract construc
tion that a contract must be construed against the drafter. However, this rule
is only a secondary rule of contract construction and is not applicable when a
primary rule of contract construction clarifies the meaning of the contract.
One such primary rule is that, when confronted with an ambiguous contract,
a court must examine parol evidence to determine the parties' intent.20

IV. THE DOCTRINE OF CONTRA PROFERENTEM IN

INSURANCE LAW

Insurance contracts were originally construed according to the same rules

as other contracts.21 Therefore, courts had no reason to elevate the ambi
guity rule over the paramount importance of the intent of the parties. Once
insurance policies began to be mass produced, to level the playing field,
courts started to apply the ambiguity doctrine to them, initially to fire
insurance policies for homeowners.22 Although the ambiguity rule is a sec
ondary rule of construction and should therefore be a last resort, for de
cades, Ohio courts have invariably applied the doctrine as the primary rule
of construction.23 Typical of this approach is the following unqualified

17. Id. at *2 (citations omitted).

18. See, e.g., Reida v. Thermal Seal, Inc., No. 02AO-308, 2002 WL 31819831, at *3 (Ohio
Ct. App. Dec. 17, 2002) (unreported); Cline v. Rose, 645 N.E.2d 806, 809 (Ohio Ct. App.
1994); Malcuit v. Equity Oil & Gas Funds, Inc., 610 N.E.2d 1044, 1046-47 (Ohio Ct. App.
1992). Interestingly, in Malcuit, the court cites a number of Ohio Supreme Court decisions
and one court of appeals decision which it says reached the same result. Id at 1047. Although
these cases do not conflict with the court's ruling, neither do they hold that the doctrine of
contra proferentem is a secondary rule of construction that is only applied as a last resort. Id.
19. No. 02AO-308, 2002 WL 31819831 (Ohio Ct. App. Dec. 17, 2002) (unreported).
20. Id. at *3 (citations omitted).
21. See, e.g., Appleman, supra note 3, ? 5.1, at 7 (insurance policies are a form of contract).
22. See generally David S. Miller, Insurance As Contract: The Argument for Abandoning the
Ambiguity Doctrine, 88 Colum. L. Rev. 1849, 1850-53 (1988); Steven H. Cohen & Katheryn
L. Quaintance, Role of Contra Proferentem in Interpretation of Insurance Contracts, 2 Envtl.
Claims J. 15 (1989).
23. See, e.g., Lane v. Grange Mut. Cos., 543 N.E.2d 488, 490 (Ohio 1989); King v. Na
tionwide Ins. Co., 519 N.E.2d 1380, 1383 (Ohio 1988); Faruque v. Provident Life & Accid.
Ins. Co., 508 N.E.2d 949, 952 (Ohio 1987); Thompson v. Preferred Risk Mut. Ins. Co., 513
N.E.2d 733, 736 (Ohio 1987) (case citations omitted); Gomolka v. State Auto. Ins. Co., 436
N.E.2d 1347,1348 (Ohio 1982); Buckeye Union Ins. Co. v. Price, 313 N.E.2d 844, 846 (Ohio
1974); Ohio Farmers Ins. Co. v. Wright, 246 N.E.2d 552, 555 (Ohio 1969); Am. Fin. Corp.
v. Fireman's Fund Ins. Co., 239 N.E.2d 33, 35 (Ohio 1968);. Munchick v. Fid. & Cas. Co.
of N.Y., 209 N.E.2d 167, 169-170 (Ohio 1965); Peterson v. Nationwide Mut. Ins. Co., 197

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 The Demise of Contra Proferentem 1125

statement: "Language in a contract of insurance reasonably susceptible of

more than one meaning will be construed liberally in favor of the insured
and stricdy against the insurer."24
This, obviously, blatandy contradicts the Ohio Supreme Court's re
peated statement that insurance contracts are contracts like any other, and
therefore are subject to the same rules of construction.25

V. OHIO CASE LAW ?RECONCILING TWO POTENTIALLY

INCONSISTENT RULES OF CONSTRUCTION IN THE CONTEXT
OF INSURANCE CONTRACTS

Although modern Ohio Supreme Court cases construing insurance policy

language pay lip service to the importance of the intention of the parties,
they leave no doubt that when this concept comes into conflict with the
ambiguity doctrine, the ambiguity rule prevails. A prime example is King
v. Nationwide Insurance Co.,26 in which the court explains:

As in all cases in which insurance coverage is provided by an insurance policy,

the issue in this case will be determined by a . .. reasonable construction [of
the contract] in conformity with the intention of the parties as gathered from
the ordinary and commonly understood meaning of the language employed.
However, it is well-settled, that where provisions of a contract of insurance
are reasonably susceptible of more than one interpretation, they will be con
strued stricdy against the insurer and liberally in favor of the insured27

This prevalence of contra proferentem over the intention of the parties

perhaps reached its zenith, and the importance of the intention of the
parties its nadir, in Scott-Pontzer v. Liberty Mutual Fire Insurance Co.28 After
finding the language in the policy was ambiguous, the court paid homage
to contra proferentem, observing:

Courts universally hold that policies of insurance, which are in language se

lected by the insurer and which are reasonably open to different interpretation,
will be construed most favorably to the insured. Further, as we said in [our]

N.E.2d 194, 196 (Ohio 1964); Yeager v. Pacific Mut. Life Ins. Co., 139 N.E.2d 48, 48 (syl
labus), 53 (Ohio 1956); Am. Policyholders Ins. Co. v. Michota, 103 N.E.2d 817, 817 (syllabus)
(Ohio 1952); Toms v. Hartford Fire Ins. Co. of Hartford, 63 N.E.2d 909, 910-11 (Ohio
1945); Gibbons v. Metro. Life Ins. Co., 21 N.E.2d 588, 589 (Ohio 1939).
24. Faruque, 508 N.E.2d at 952 (quoting Buckeye Union Ins. Co., 313 N.E.2d at 845.
25. See, e.g., Hybud Equip. Corp. v. Sphere Drake Ins. Co., 597 N.E.2d 1096, 1102 (Ohio
1992) (citations omitted); Gomolka, 436 N.E.2d at 1348; Dealers Dairy Prods. Co. v. Royal
Ins. Co., 164 N.E.2d 745, 747 (Ohio 1960) ("A policy of insurance is a contract and like any
other contract is to be given a reasonable construction in conformity with the intention of
the parties as gathered from the ordinary and commonly understood meaning of the language
employed.").
26. 519 N.E.2d 1380 (Ohio 1988).
27. Id. at 1383 (citations and internal quotation marks omitted; alterations in original).
28. 710 N.E.2d 1116 (Ohio 1999).

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 1126 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

Faruque .. . syllabus, "language in a contract of insurance reasonably suscep

tible of more than one meaning will be construed liberally in favor of the
insured and strictly against the insurer."29

Later the court hinted strongly that in a contest between contra profer
entem and the intent of the parties, it is the intent of the parties which must
yield:

We realize that the conclusion reached herein may be viewed by some as a

result that was not intended by the parties to the insurance contracts at issue
.... In any event, as the law is clear in this regard, we will not guess at the
intent of the parties to the insurance contract when the insurer introduces
ambiguous terms into the policy.30

This has not always been so.

Although early Ohio Supreme Court decisions interpreting insurance
contracts did not universally place greater weight upon the intent of the
parties than upon contra proferentem, some plainly did while others appeared
to give equal or similar weight to both concepts. In either case, though,
the current trend toward total deference to contra proferentem was definitely
not displayed.
One of the earliest Ohio Supreme Court cases to discuss both the intent
of the parties and the ambiguity doctrine in the context of an insurance
policy is West v. Citizens Insurance Co.31 In West, a partnership purchased a
fire insurance policy to cover a "stock of goods" in a business it operated.
Thereafter, one of the partners retired and assigned all of his interest in
the policy and the goods to his co-partners. After the assignment, the goods
were destroyed by a fire. The insurance company maintained that it had
no obligation under the policy because of a clause in the policy that pro
hibited assignment of the policy without permission of the insurer.32
The court held this clause did not apply to an assignment by one partner
of his interest in the policy and the property covered by the policy to his
co-partners. In so holding, the court recognized "reference must be had to

29. Id. at 1119 (quoting Faruque, 508 N.E.2d at 949).

30. Id. at 1120. The court mistakenly concluded that adopting the insurers' position that
the parties did not intend to provide uninsured motorists coverage to employees would pro
duce absurd results, i.e., that excluding coverage for employees driving their own personal
vehicles while within the course and scope of employment would also exclude coverage for
the named insured employers held liable for their employees' negligence under respondeat
superior. While the court utilized this rationale to justify the scant attention paid to the intent
of the parties, under the scenario described by the court employers in fact would be covered.
See id.
31. 27 Ohio St.l (Ohio 1875).
32. Id. at 7 (""And it is further agreed ... that if this policy, or any interest therein, shall
be assigned, unless, in either case, the assent thereto of said company be indorsed hereon
these presents shall therefore be null and void.").

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 The Demise of Contra Proferentem 1127

the familiar rules of construction."33 In the syllabus of the opinion, the

court stated the paramount rule is that "[p]olicies of insurance, like other
contracts, are to receive a reasonable construction, so as not to defeat the
intention of the parties."34 In the body of the opinion, the court continued
to stress the importance of the intent of the parties, but also noted that
where language was susceptible of two reasonable interpretations, the one
which favors coverage would be adopted:

As it is a contract of indemnity to the insured, it should be liberally construed

in its favor, not only because this mode of construction is most conducive to
trade and business, but because it is probably most consonant with the inten
tions of the parties. There is no more reason for a strict compliance with its
terms than ordinary contracts. There is nothing in such a contract intrinsically
more sacred or inviolable than a contract about any other subject.... None
of these rules is more hilly established or more imperative and controlling
than that which declares that it must be liberally construed in favor of the
insured, so as not to defeat, without a plain necessity, his claim to indemnity,
which, in making his insurance, it was his object to secure; and when the words
"without violence" are susceptible of two interpretations, that which will sus
tain the claim and cover the loss must in preference be adopted ... .35

Ultimately, the more reasonable construction is more likely to effectuate

the intent of the parties. Here, the court held that its own construction of
the policy language was clearly more reasonable than that offered by the
insurer, which seemed "strained and unnatural, and calculated to defeat
rather than carry out the intention of the parties."36
The court concluded by noting that, in the final analysis, the parties'
intent is of the utmost importance: "The policy was intended to protect
the interest of each and all; and its language, fairly construed, is in harmony
with that intent."37
Another early case, Webster v. Dwelling House Insurance Co.,38 is in accord
with this holding, although the court initially appeared to place less em
phasis on the intent of the parties than on construing the language in the
favor of the promisees (the insureds). In Webster, the court declined to void
a fire insurance policy although the insureds misrepresented their owner

33. Id. at 5.
34. Id. at 1 (syllabus). Prior to amendment of the Supreme Court Rules for the Reporting
of Opinions on May 1, 2002, the controlling law of a supreme court opinion was stated in
the syllabus, and where there was disharmony between the syllabus and the text, the syllabus
controlled. The rule was changed effective May 1, 2002, to provide: "The syllabus ... states
the controlling point or points of law decided in and necessarily arising from the facts of the
specific case before the court for adjudication." S. Ct. R. Rep. Ops. 1(B) (2002).
35. Id. at 10 (citations omitted).
36. Id. at 11.
37. Id. at 14.
38. 42 N.E. 546 (Ohio 1895).

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 1128 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

ship in the insured property, stating they owned it joindy when the wife
actually owned the dwelling and the husband owned the personal property.
The court first noted it was unable to ascertain the intent of the parties:

Provisions for forfeitures are to receive, where the intent is doubtful, a strict
construction against those for whose benefit they are introduced.
If it be left in doubt, in view of the terms of the instrument and the relation
of the contracting parties, whether given words are used in an enlarged or a
restricted sense, other things being equal, that construction will be adopted
which is most beneficial to the promisee.39

Even though the parties' intent was unclear, the court nonetheless held
that its construction had to be based on the intention of the parties:

Applying the foregoing rules, how stands the case? This defense is based en
tirely on the language of the representation. In giving construction to this
representation, what meaning should be placed on the words used? Manifesdy
such as was intended by the applicants, and which the company knew or ought
to have known, they intended.40

Seeking to effectuate the parties' intent, the court ultimately concluded

a misrepresentation as to ownership should not forfeit the policy:

If the company may stand on a strict technical construction of the words used,
and hold the plaintiffs to them, though they did not fully apprehend their legal
effect, and ought not reasonably to have done so, it is placed in the position
of tempting patrons into the payment of premiums, and into resting on a
mistaken belief that they have indemnity, only to find, when the trial comes,
that their reliance had been upon a broken reed. The court cannot sustain
such a contention .... It would be, as it seems to us, carrying technicality to
a most unreasonable length, to hold that the representation as to ownership
shall forfeit the policy.41

In the course of an early-twentieth-century decision, a common pleas

court describes the rationale for the contra proferentem doctrine in the con
text of insurance contracts, the tension between that doctrine and the intent
of the parties, and its view that Ohio law had finally settled on the intent
of the parties as the paramount rule of construction:

It seems that in early times in this country insurance policies were construed
stricdy against the insurance company and in favor of the insured, on the
theory that the policy was prepared by expert attorneys employed by the com

39. Id. at 546 (emphasis supplied).

40. Id. at 547.
41. Id. at 548. This case was cited with favor in Travelers Ins. Co. v. Myers, 57 N.E. 458
(Ohio 1900), which was overruled on other grounds in Employers' Liability Assurance Corp. v.
Roehm, 124 N.E. 223 (Ohio 1919) ("Policies of insurance should be construed, like other
contracts, so as to give effect to the intention and express language of the parties.").

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 The Demise of Contra Proferentem 1129

pany and contained many restrictions and conditions printed in fine printing
and in such a manner as not to be readily understood by the insured ....
But the later decisions, while recognizing the rule that ambiguous language
in an insurance contract is to be construed against the company, determined
that "policies of insurance should be construed, like other contracts, so as to
give effect to the intention and express language of the parties" ... .42

Ten years later, the Ohio Supreme Court decided Mumaw v. Western and
Southern Life Insurance Co.,43 constituting a stark reversal of its prior deci
sions in this area, but without explicidy rejecting Myers and West. In Mu
maw, the court listed the following rules, ostensibly in order of importance:
(1) the doctrine of contra proferentem; and (2) effectuating the intent of the
parties:

Policies of insurance which are prepared by the insurance company, and which
are reasonably open to different interpretations, will be construed most fa
vorably to the insured. Courts will have in mind the relation of the parties to
each other. They will give the language of the contract the meaning on which
the minds of the parties may be said to have met and which will effectuate
their object in entering into it.44

Despite this language, there was no claim that the language of any of
the provisions of the policy was ambiguous. There was, however, a question
whether certain provisions were conditions precedent or warranties, which
the court held was a matter of intent. The court discussed both ambiguity
and intent, observing:

A policy of life insurance is a contract. It implies a meeting of minds .... The

rules which control the interpretation of life insurance policies are those which
govern contracts generally. They are usually prepared by the company, and,
where they are reasonably subject to conflicting interpretations as to the in
tention of the parties, must be construed stricdy against the company. They
must be given such a construction as would effectuate and sustain, rather than
defeat, the object of parties in entering into them .... And in all cases the
endeavor should be to arrive at the intention of both parties; of the insured as
well as of the insurer. We suppose these principles to be not open to dispute.45

42. Union Agric. Soc'y v. Anchor Fire Ins. Co., 19 Ohio Dec. 664, 666 (Ohio CP. 1907)
(quoting Travelers Ins. Co. v. Myers, 57 N.E. 458, 459 (Ohio 1900)).
43. 119N.E.132 (Ohio 1917).
44. Id. at 133.
45. Id. at 134. The court did conclude that, because the policy was delivered and the
premium was paid without an application, the insurer must have had what it regarded as
satisfactory evidence that the insured was in sound health, and the parties must have intended
that the contract become effective. Therefore, the contract would remain effective unless the
company alleged and proved the conditions precedent, which were in the nature of a warranty.
Id. at 135-36. Although the court did not say so, this may have provided indirect support for
its holding that the insurer had the burden of proof.

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 1130 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

In Great American Mutual Indemnity Co. v. Jones?6 the plaintiff sought to

recover under his automobile policy for damages sustained by his car when
it overturned as he was attempting to negotiate a curve. Although the car
collided with the roadway, it did not strike any other object. The issue was
whether the collision with the roadway constituted an "accidental collision
with another object, either moving or stationary."47 If so, the policy pro
vided coverage. The case did not discuss the intent of the parties. The
syllabus of the court provided: "An insurance policy which contains lan
guage reasonably susceptible to different interpretations will be given the
construction most favorable to the assured."48
The court explained that it is "elementary" that insurance policies con
stitute contracts, and that, just as with other contracts, the language in
policies should be given its "usual and ordinarily accepted meaning."49 But
the court went on to quote Mumaw for the proposition that a policy "rea
sonably open to different interpretations will be construed most favorably
to the insured."50
After reviewing conflicting decisions from the highest courts of a num
ber of other jurisdictions, the court relied on the principle of contra profer
entum to determine that the policy provided coverage: "This situation calls
for the application of the rule heretofore referred to that policies of in
surance, prepared by the insurance company, containing phraseology open
to different interpretations, are to be considered most favorably to the
insured."51
In Home Indemnity Co. of New York v. Village of Plymouth,52 the Village of
Plymouth purchased a liability policy that broadly provided coverage for
claims made by third persons arising out of the authorized use of a truck,
except claims made by any employee of the insured other than a domestic
employee. While the policy was in force, an employee of the Village, who
was operating the truck within the course and scope of employment, fatally
injured the Village's street commissioner who was also acting within the
course and scope of employment. The insurer declined to defend the
resulting action against the driver of the truck on grounds that the street
commissioner was an employee of the Village. The Village contended
that the street commissioner was an officer of the Village rather than an
employee.

46. 144 N.E. 596 (Ohio 1924).

47. Id. at 596.
48. Id. (syllabus).
49. Id.
50. Id. at 596 (quoting Mumaw v. Western & Southern Life Ins. Co., 119 N.E.132, 133
(Ohio 1917).
51. Id. at 598.
52. 64 N.E.2d 248 (Ohio 1945).

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 The Demise of Contra Proferentem 1131

Citing Webster, Mumaw, and Jones, the court acknowledged the general
rule that insurance policies that are drafted by the insurer and contain
language allowing for different interpretations will be construed most fa
vorably to the insured.53 However, the court qualified this rule, noting that
"[w]here exceptions, qualifications or exemptions are introduced into an
insurance contract, a general presumption arises to the effect that that
which is not clearly excluded from the operation of such contract is in
cluded in the operation thereof."54
The court went on to discuss the importance of the parties' intentions,
explaining:
The intention of the parties as expressed in the insurance contract must control
its construction. The sole question to be determined is whether Otis Ervin
Moore was at the time of his injury an "employee" of the Village of Plymouth
within the contemplation of the parties as that term was used by them in the
policy of insurance.55

The court explained that under Ohio law no valid contract could be
made indemnifying a person amenable to the workers' compensation law
for injuries or death suffered in the course and scope of employment. Con
sequendy, it made no sense to buy insurance for such coverage since all of
the Village's employees were covered by the workers' compensation law.
However, under that law, Village officials such as the decedent street com
missioner were not included within the designation of employee. There
fore, absent insurance, the Village had no protection under the workers'
compensation law as to any liability it might have for the decedent's acci
dental death while acting within the course and scope of employment. The
court declared that it was with this set of circumstances in mind that the
parties entered into the insurance contract.56
The court then asked the question whether "[w]ith such broad coverage
under the policy, limited only by specific exceptions,"57 it was within the
contemplation of the parties to exclude the street commissioner from cov
erage as an employee when at the same time he was excluded from coverage
under the workers' compensation law. Answering its own question, the
court observed:

In our opinion, from the language in the policy, such result was not within the
contemplation of the parties. This is indicated by the fact that while a domestic
employee, under the statute, is excluded from workmen's compensation cov
erage, such domestic employee under an exception in the policy, was specifi

53. Mat 250.

54. Id. at 248.
55. Id. at 250 (citation omitted).
56. Id. at 251.
57. Id.

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 1132 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

cally included within its coverage. In other words, the scheme of coverage
indicated that the insured was seeking to secure, and the insurer was agreeing
to give, coverage to the Village as to all persons who might suffer injury or
death by the negligent operation of the truck other than those who, as em
ployees, were covered by the workmen's compensation law. Nothing but a
clear and unambiguous expression in an exception clause, amounting to a ne
cessity for it, will justify a court in holding it utterly inconsistent with the
preceding general coverage clauses.58

In short, the court relied substantially upon the intention of the parties as
expressed in the policy by basing its holding on the purpose for entering
into the contract. Although the result was construction of the policy in
favor of the insured, this was not a preordained result based upon contra
proferentem. If it were, there would have been no need for the lengthy
analysis regarding what was in the contemplation of the parties.
The issue before the court in Gibbons v. Metropolitan Life Insurance Co.59
was whether the definition of "totally and permanendy disabled" should
be construed literally or liberally. The insurer agreed to make disability
payments to the insured should he "become totally and permanendy dis
abled" in such manner that he "will for lifetime be unable to perform any
work or engage in any business for compensation or profit."60 Without
reference to ambiguity, the court set forth the following broad rule: "It is
generally held that insurance policies should be given a liberal construction
in favor of the insured."61 However, the court also acknowledged that it
must give effect to the true intent of the parties which, it held, would be
accomplished by giving a liberal construction to the policy language.62
Construing the language literally would mean that, in order to recover,
the insured would have to be "so utterly helpless as to be incapable of
performing work of any kind" which, the court stated, "could not have
been the intention of the contracting parties."63 The court also concluded
that the words "permanent disability and total disability" had to be read
together with all related provisions because otherwise it would be impos
sible to "reasonably determine[]" "the true intent and meaning of the
words" of the policy.64 In sum, although the court adopts a liberal construc
tion of the policy in favor of the insured, the very reason and justification

58. Id. (citations omitted).

59. 21 N.E.2d 588 (Ohio 1939).
60. Id. at 590.
61. Id. at 591.
62. 'In case of doubt, provisions for the payment of total and permanent disability benefits
must be liberally and fairly construed in order to give effect to, rather than frustrate, the true
intent of the contracting parties." Id.
63. Id.
64. Id. at 592.

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 The Demise of Contra Proferentem 1133

for this approach is that a liberal construction accords with the intention
of the parties.65
In Bobier v. National Casualty Co. ,66 the issue before the court was whether
property damage caused while workers were carrying a stove from a fur
niture store and preparing to load it into a truck was covered either by an
automobile indemnity policy, a general indemnity policy or by both. The
automobile policy provided coverage for accidental damages arising out of
the ownership, maintenance or use of the covered vehicle, including load
ing and unloading. The question, therefore, was whether the damage was
sustained during the process of loading or unloading the truck, and thus
required construction of the meaning of that term in the context of the
policies.
The rules applied by the court were set forth in Paragraphs 1 and 2 of
the syllabus:
A policy of indemnity insurance is to be construed in the light of the subject
matter with which the parties are dealing and the purpose to be accomplished,
and the language used must be given its ordinary and commonly accepted
meaning.
In case of ambiguity in the language used by the insurer in an indemnity
insurance policy, such language will be construed most favorably to the insured.67

Applying these principles?that is, both the perceived intent of the par
ties and the ambiguity in the policy language?the court concluded that
the damage occurred in the process of loading or unloading and therefore
was covered.
To discern the meaning of the ambiguous phrase from the parties' in
tentions, the court considered the entire policy as a whole:

From a consideration of the entire policy it seems clear that it was the intention
of the parties to cover liability arising in some instances when the truck was
stationary. Unless this be true the provision as to loading and unloading is mean
ingless and it could hardly be claimed that loading and unloading could take
place while the truck was in motion.68

In discussing the ambiguity of the policy language, the court noted that
the policy was drafted by the insurer and that the phrase at issue was not
defined anywhere within the policy: "It would have been an easy matter to
provide what should constitute loading and unloading within the meaning

65. By acknowledging that the fact that the insured might be able to "sell shoestrings or
pencils on the street corner" would not necessarily disqualify him from receiving benefits,
counsel for the insurer, according to the court, conceded that the policy language was not to
be stricdy construed. Id. at 591.
66. 54 N.E.2d 798 (Ohio 1944).
67. Id. at 798 (syllabus).
68. Id. at 801 (emphasis in original).

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 1134 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

of the policy had National [the insurer] chosen to do so. The policy in that
respect is ambiguous and that phrase must be construed most favorably to
the plaintiff."69
These early cases illustrate the Ohio Supreme Court's use of an impre
cise mixture of the intent of the parties and contra proferentem, with neither
ingredient attaining clear primacy. Although this lack of clarity may have
been unsatisfying, it stands in stark contrast to the questionable certitude
of later cases which baldly installed the doctrine of contra proferentem as the
primary rule of construction applicable to insurance contracts. However,
the most recent cases in Ohio show that courts are reexamining the trends
in this area of the law.

VI. THE ROAD TO GALATIS AND BEYOND

As discussed above, contra proferentem was not always the preeminent rule
of insurance contract interpretation, although it somehow assumed that
status in Ohio jurisprudence. The groundwork for a return to the early
theory that the intent of the parties should prevail was laid in an improbable
case, Morfoot v. Stake,10 which did not even involve a contest between the
ambiguity rule and the intent of the parties. In Morfoot, the decedent was
killed while a passenger in a car owned by his employer and negligendy
driven by his co-employee. Pursuant to an exclusion in the employer's
policy, the driver lost his status as an additional insured if the decedent was
within the course and scope of employment at the time of the accident.
The policy language provided in part:
The insurance with respect to any person ... other than the named insured
does not apply: . . .

(b) To any employee with respect to injury ... or death of another employee
of the same employer injured in the course of such employment in an accident
arising out of... use of the automobile in the business of such employer.71

Based on this exclusion, the issue of whether the driver was covered by the
policy depended on whether the plaintiffs decedent was injured during the
course of his employment by the insured "within the meaning of those
words as used in the insurance policy."72
The court held the decedent was injured during the course of his em
ployment as a matter of law. Therefore, because the driver would have
been protected by the workers' compensation law, "the provisions of the

69. Id.
70. 190 N.E.2d 573 (Ohio 1963).
71. Id. at 574.
72. Id.

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 The Demise of Contra Proferentem 1135

insurance policy were not intended to cover [him]."73 The court found the
purpose of the exclusion was "to give coverage to one amenable to the
workmen's compensation law in cases where he is not protected by that
law and to exclude coverage in cases where he is so protected."74
The court basically held that, where a policy is subject to two interpre
tations, one reasonable and the other unreasonable in the context of the
policy, the reasonable construction would prevail. Interestingly, however,
the policy language at issue in that case was not amenable to different
interpretations. There is nothing ambiguous or unclear about language
providing that, if an accident occurred while the driver and passenger were
within the course and scope of employment, the driver would be an in
sured. Consequendy, there was not even a potential occasion to construe
the language in favor of the driver.75 Nevertheless, the case stands for the
proposition that susceptibility of two interpretations does not necessarily
render a policy ambiguous for purposes of contra proferentem. It does not,
however, stand for the proposition that where there is a conflict between
the ambiguity doctrine and the intent of the parties, the intent of the parties
prevails.76 That characterization goes too far, because nothing in the case
prohibits ambiguous language from being construed against the insurer
even if the resulting construction is contrary to the intent of the parties,
so long as the construction is not unreasonable.
Similarly, although Westfield Insurance Co. v. Galatis77 does not hold out
right that intent of the parties prevails over contra proferentem, the opinion

73. Ironically, because the earlier Ohio Supreme Court decision under which the driver
would have been protected by the Workmen's Compensation Law had been overruled, he
was covered neither by the Workmen's Compensation Law nor by the policy. Id. at 575-76.
74. Id. at 575.
75. See, e.g., Hybud Corp. v. Sphere-Drake Ins. Co., 597 N.E.2d 1096, 1102 (Ohio 1992)
("[I]f the language of the policy's provisions is clear and unambiguous, [the] court may not
'resort to construction of that language.'") (quoting Karabin v. State Auto Mut. Ins. Co., 462
N.E.2d 403, 406 (Ohio 1984)).
76. Even so, Morfoot has been cited for such a holding. See Boso v. Erie Ins. Co., 669
N.E.2d 47, 51 (Ohio 1995) (citing Morfoot, 190 N.E.2d at 573) ("[T]he rule requiring am
biguous language in an insurance policy to be construed in favor of the insured is inapplicable,
where its application would produce results in conflict with the manifest intention of the
parties."); Hill v. Stony Ridge Inn S. Ltd., No. CA97-05-114, 1997 WL 746058 *5 (Ohio
Ct. App. Dec. 1, 1987) (citing and discussing Boso and Morwood).
The Boso court's conclusion is sound, but it is not mandated by Morfoot. The Boso court
stated that the intent of the parties limits the application of contra proferentum: "However, the
fundamental goal in interpreting an insurance policy is to ascertain the intent of the parties."
Boso, 669 N.E.2d at 51 (citing Aultman Hosp. Ass'n v. Cmty. Mut. Ins. Co., 544 N.E.2d 920,
922-23 (Ohio 1989); Burris v. Grange Mut. Cos., 545 N.E.2d 83, 88-89 (Ohio 1989), over
ruled in part by Savoie v. Grange Mut. Ins. Co., 620 N.E.2d 809 (Ohio 1993)). The two cases
the Boso court used as support for this statement are not the strongest authorities. Aultman
did not involve an insurance policy. Burris did not seek out the intent of the parties in the
face of ambiguous policy language. While the court acknowledged the ambiguity rule, it held
that the policy language in that case was not ambiguous. In short, while the result in Boso was
correct, the court needed to stretch to find supreme court precedent to support its conclusion.
77. 797 N.E.2d 1256 (Ohio 2003).

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1136 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

does lay the groundwork for such a conclusion. In Galatis, the court limited
an earlier decision holding that ambiguous language in a Business Auto
Policy provided uninsured/underinsured motorist coverage to the insured
corporation's employees whether or not they were within the course and
scope of employment.78 The Galatis court held that the policy provided
coverage only for losses sustained by employees in the course and scope of
employment. Although conceding that ambiguity in an insurance contract
is ordinarily interpreted against the insurer and in favor of the insured, the
court initially announced the limitation set forth by the Morfoot: the am
biguity doctrine will not be applied "so as to provide an unreasonable in
terpretation of the words of the policy."79
Unlike Morfoot, however, the Galatis opinion repeatedly emphasized the
importance of the intent of the parties.80 Moreover, the court looked to
the "general intent of a motor vehicle insurance policy issued to a corpo
ration," which is to cover the corporation for liability arising out of em
ployees' use of motor vehicles within the scope of employment.81 There
fore, the court concluded, "uninsured motorist coverage for an employee
outside the scope of employment is extraneous to the general intent of a
Commercial Auto Policy."82
The Galatis court also repeatedly criticized an earlier decision for failure
to effectuate the intent of the parties:
Scott-Pontzer ignored the intent of the parties to the contract. Absent contrac
tual language to the contrary, it is doubtful that either an insurer or a corporate
policyholder ever conceived of contracting for coverage of off-duty employees
occupying non-covered automobiles .... The Scott-Pontzer court construed
the contract in favor of neither party to the contract, preferring instead to
favor an unintended third party. The Scott-Pontzer court even acknowledged
that the expansion of coverage for an employee outside the course and scope
of employment "may be viewed by some as a result that was not intended by
the parties to the insurance contract at issue."83
* * *

... [W]e ventured to a point [in Scott-Pontzer] where ...

parties was ignored.84

78. Id. at 1265-66 (limiting Scott-Pontzer v. Liberty Mut. Fire

(Ohio 1999)).
79. Id. at 1262. A second limitation cited by the court is that one
is not in a position to urge that the contract should be construed
the contract. Id.
80. "When presented with an issue of contractual interpretation
give effect to the intent of the parties to the agreement." Id. at 1261
carries great weight, for the intent of the parties is paramount." I
81. Id. at 1263.
82. Id. at 1264 (emphasis supplied) (citations omitted).
83. Id. at 1266 (quoting Scott-Pontzer, 710 N.E.2d at 1120).
84. Id. at 1269.

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 The Demise of Contra Proferentem 1137

* *

This chaos [created by Scott-Pontzer] resulted from t

plain why the intent of the parties was not controlling

The court also cited the familiar rule that where a

extrinsic evidence is admissible to ascertain the inte
of the foregoing, however, amounts to a clear p
intent of the parties trumps the ambiguity rule
observed:

[W]here the written contract is standardized and between parties of unequal

bargaining power, an ambiguity in the writing will be interpreted stricdy
against the drafter and in favor of the non-drafting party. In the insurance
context, the insurer customarily drafts the contract. Thus, an ambiguity in an
insurance contract is ordinarily interpreted against the insurer and in favor of
the insured.87

Despite clear emphasis on the intent of the parties, the court's rationale
for not applying the doctrine of contra proferentem was that doing so would
give rise to an unreasonable interpretation of the words of the policy, not
that doing so would conflict with the intent of the parties. The two con
cepts are not precisely equivalent. However, the court did come close to
holding that the ambiguity rule is inapplicable when its results conflict with
the intent of the parties. As noted above, additional rationale for such a
holding is readily found in the court's own early jurisprudence. Moreover,
by subordinating the ambiguity rule to the intent of the parties, the court
would align itself with most other jurisdictions.

VII. THE LANDSCAPE OUTSIDE OHIO

Outside Ohio, the tide appears to have turned. A number of commentators

have concluded that the majority rule, or at least the modern view, is that
the doctrine of contra proferentem is applicable only if the intent of the
parties cannot be ascertained from extrinsic evidence.88
One state espousing this view is Missouri, where the intermediate ap
pellate court has stated that "the rule of contra proferentem should not be

85. Id.
86. Id. at 1261-62.
87. Id. at 1262 (citation omitted).
88. See, e.g., Barry R. Ostrager, & Thomas R. Newman, 1 Handbook on Insurance
Coverage Disputes ? 1.01 [c], at 8 (12th ed. 2001) (citing Jeffrey W. Stempel, Reassessing the
"Sophisticated" Policy holder Defense in Insurance Coverage Litigation, 42 Drake L. Rev. 807, 821
(1993)); Allan D. Windt, Insurance Claims & Disputes: Representation of Insurance Companies and
Insureds ? 6:2, at 617 (4th ed. 2001); Eugene R. Anderson, Jordan S. Stanzler & Lorelie
S. Masters, Insurance Coverage Litigation ? 2.07 (2d ed. 2003); Scott G. Johnson, Re
solving Ambiguities in Insurance Policy Language: The Contra Proferentem Doctrine and the Use of
Extrinsic Evidence, Brief 33, 34 (Winter 2004).

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 1138 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

applied where the intent of the parties can be ascertained from other
sources."89 That case, State Farm Mutual Automobile Insurance Co. v. Esswein,
involved interpretation of a policy issued to a car rental agency. The court
held:
Here there is evidence elsewhere in the policy as well as the extrinsic rental
agreement that illustrates the parties' intentions. Therefore, we find that it
will be improper to apply the doctrine of contra proferentem against Chrysler
solely because it drafted the policy while ignoring relevant evidence of the
parties' intentions. "[T]he rule [of contra proferentem] does not justify a court
in adopting an interpretation contrary to that asserted by the drafter simply
because of their status as the drafter."90

The U.S. Court of Appeals for the Second Circuit also followed this
view in Schering Corp. v. Home Insurance Co.,91 applying New York law:

The court below attempted to dispose of the matter of conflicting interpre

tation applying the accepted maxim requiring ambiguous insurance contracts
to be construed against the insurer. The trial court erroneously invoked this
doctrine because contra proferentem is used only as a matter of last resort, after
all aides to construction have been employed or have failed to resolve the
ambiguities in the written instrument.92

According to one recent survey, other jurisdictions adopting this major

ity view include Arizona, Colorado, Delaware, the District of Columbia,
Georgia, Louisiana, Maryland.93 At least eleven more states may be added

89. State Farm Mut. Auto. Ins. Co. v. Esswein, 43 S.W.3d 833, 842 (Mo. Ct. App. 2000).
90. Id. (quoting 4 Williston on Contracts ? 32.12 (4th ed.)).
91. 712 F.2d4(2dCir. 1983).
92. Id. at 10 n.2. Contra Chem. Leaman Tank Lines Inc. v. Aetna Cas. & Sur. Co., 817 F.
Supp. 1136, 1155 (D.N.J. 1993) (applying New Jersey law; stating "even assuming that the
evidence of the drafter's intent conclusively shows the desired meaning of the word 'sudden'
the doctrine of contra proferentem?against the one who proffers?precludes this court from
considering this evidence.").
93. Johnson, supra note 88, at 33 n.9 (citing State Farm Mut. Auto. Ins. Co v. Wilson, 782
P.2d 727, 734 (Ariz. 1989); Travelers Indem. Co. v. Howard Electric Co., 879 P.2d 431, 434
35 (Colo. Ct. App. 1994); Playtex FP, Inc. v. Columbia Cas. Co., 609 A.2d 1087, 1092 (Del.
Super. Ct. 1991); Cameron v. USAA Prop. & Cas. Co., 733 A.2d 965, 968 (D.C. 1999);
Claussen v. Aetna Cas. & Sur. Co., 380 S.E.2d 686, 687 (Ga. 1989); Doerr v. Mobile Oil
Corp., 774 So. 2d 119, 124 (La. 2000); Bailer v. Erie Ins. Co., 687 A.2d 1375, 1378 (Md.
1997); Simon v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 782 N.E.2d 1125, 1128-29
(Mass. 2003); Stine v. Cont'l Cas. Co., 349 N.W.2d 127, 137 (Mich. 1984); Walle Mut. Ins.
Co. v. Sweeney, 419 N.W.2d 176, 179-80 (N.D. 1988); DiFabio v. Centaur Ins. Co., 531
A.2d 1141, 1142-43 (Pa. Super Ct. 1987); Texas Mescalero Energy, Inc. v. Underwriters
Indem. Gen. Agency, Inc., 56 S.W.3d 313, 319 (Tex. App. 2000); S. Ins. Co. of Virginia v.
Williams, 561 S.E.2d 730, 733 (Va. 2002); Queen City Farms, Inc. v Cent. Nat'l Ins. Co. of
Omaha, 882 P.2d 703, 721 (Wash. 1994)).
Johnson also includes Ohio, on the strength of the holding in Boso v. Erie Ins. Co., 669
N.E.2d 47, 51 (Ohio 1995). However, as discussed more fully above, Boso reaches the correct
result only by placing a significant gloss on the Ohio Supreme Court authority that it cites
in support. See supra note 76.

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 The Demise of Contra Proferentem 1139

to that list: Alabama, Connecticut, Florida, Maine, Minnesota, New Mex

ico, Oklahoma, Oregon, South Dakota, Tennessee, and Vermont.94
It has been suggested that a search for the intent of the parties need
not be undertaken when an insurance policy contains standardized, non
negotiated language. In Galatis, for example, the court singled out stan
dardized contracts between parties of unequal bargaining power as being
appropriate for application of the contra proferentem doctrine.95 The Wash
ington Supreme Court has intimated that only evidence of the parties'
mutual intent is admissible to resolve ambiguity in a policy.96 This has been
interpreted to mean that extrinsic evidence is not admissible where a term
is not negotiated, because such evidence could not be relevant to mutual
intent.97 However, practically speaking, this approach is shortsighted and
unrealistic. In the vast majority of cases?save those where the insured is
a sophisticated business entity?it is a legal fiction to say that the insured
and insurer mutually agree upon any terms in an insurance policy. Insur
ance policies are standardized contracts between parties of unequal bar
gaining power: the essence of contracts of adhesion. This, however, should
not dissuade courts from asking what the author of ambiguous language
in a policy meant to say. Obviously, if the meaning supplied bears no re
lationship to the language actually used, or if the language, burdened with
the meaning now supplied by its author, is deemed unconscionable or un
reasonable, the court is not bound to accept the unilateral evidence. There
is no reason not to give credence to the reasonable explanation of the
drafter's intent, especially where such explanation does not conflict with
the reasonable expectations of the insured.98

94. Safeway Ins. Co. of Ala., Inc. v. Amerisure Ins. Co., 707 So. 2d 218, 221 (Ala. 1997)
("We would not likely hold, however, that an insurer is liable for post-judgment interest on
a potentially unlimited judgment based solely on a general canon of construction [contra
proferentem] without substantial authority reasonably showing that the insurer intended such
a result."); Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 765 A.2d 891, 897 (Conn. 2001);
Wdliams v. Essex Ins. Co., 712 So. 2d 1232 (Fla. Dist. App. Ct. 1998); Apgar v. Commercial
Union Ins. Co., 683 A.2d 497, 500-01 (Maine 1996); Security Mut. Cas. Co. v. Luthi, 226
N.W.2d 878, 882 (Minn. 1975); Jaramillo v. Providence Wash. Ins. Co., 87 P.2d 1343, 1346
1347 (N.M. 1994); Kerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 764 (Okla. 1995);
Garvison v. St. Paul Fire & Marine Ins. Co., 771 P.2d 310, 313 (Or. Ct. App. 1989); N. River
Ins. Co. v. Golden Rule Constr., Inc., 296 N.W2d 910,913 (S.D. 1980); Garner v. Am. Home
Assur. Co., 460 S.W.2d 358, 361 (Tenn. Ct. App. 1969); Mascott v. Granite State Fire Ins.
Co, 35 A. 75, 76 (Vt. 1896).
95. Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1262, 1265 (Ohio 2003). The same
court, though, explains what the "general intent of a motor vehicle insurance policy issued to
a corporation" is. Id. at 1263.
96. Queen City Farms, Inc. v Cent. Nat'l Ins. Co. of Omaha, 882 P.2d 703, 721 (Wash.
1994)) ("[W]hile evidence of the parties' mutual intent may be helpful in some contexts, we
have recognized that sometimes language in standard policies does not involve mutual ne
gotiations between the insurers and the insureds.").
97. Kalama Chem, Inc. v. Allianz Ins. Co, No. 90-2-05011-4, 1995 WL 17015056, at *7
(Wash. Super. Ct. Aug. 14, 1995) (unreported).
98. Courts, for example, routinely examine the intent of the drafters of various provisions

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 1140 Tort Trial & Insurance Practice Law Journal, Summer 2006 (41:4)

This is not to say that resort to extrinsic evidence will always be appro
priate. There may be occasions when such evidence is unavailable or,
though available, not dispositive or even helpful. Where no relevant ex
trinsic evidence exists or none is offered, the court may construe the policy
language as a matter of law, which includes use of the contra proferentem
rule." Similarly, where the extrinsic evidence is "conclusory or sheds no
light on the intent of the parties," the court may construe the policy lan
guage as a matter of law.100 However, where extrinsic evidence raises issues
of credibility of witnesses or documents or presents a choice among rea
sonable inferences to be drawn from such evidence, the intent of the parties
becomes a question of fact.101 Ultimately, extrinsic evidence may not always
be available or helpful, but when it is available and relevant, the parties
should always be given the opportunity to introduce it where policy lan
guage is ambiguous.

VIII. CONCLUSION

The notion that the doctrine of contra proferentem is the primary rule of
insurance contract interpretation was never as deeply ingrained in Oh
Supreme Court jurisprudence as a cursory review of the case law suggests,
nor has the intent of the parties occupied quite the subordinate positi
such a review might imply. However, the court has never relegated th
ambiguity rule to the relatively minor position it ought to occupy amo
the rules of insurance policy interpretation, just as it has never quite
vated the intent of the parties to the lofty position it should occupy. A sh
has already taken place outside Ohio, and with the decision in Galatis
similar process may be underway in Ohio as well. Ultimately, as is tru
where contracts in general are involved, the ambiguity rule must yie
"where its application would produce results in conflict with the manifest
intention of the parties." Only time will tell whether this basic precept wi
be adopted and implemented?once again?in Ohio.

of the CGL policy. See, e.g., Just v. Land Reclamation, LTD, 456 N.W.2d 570, 573-75 (W
1990).
99. Uniroyal, Inc. v. Home Ins. Co, 707 F. Supp. 1368, 1374-75 (E.D.N.Y. 1988) (ap
plying New York law); Twombly v. AIG Life Ins. Co, 199 F.3d 20, 25-26 (1st Cir. 1999)
(applying Maine law).
100. Morgan Stanley Group, Inc. v. New England Ins. Co, 225 F.3d 270, 279-80 (2d Cir.
2000) (applying New York law).
101. Chase Manhattan Bank N.A. v. Keystone Distribs, Inc., 873 F. Supp. 808, 811
(S.D.N.Y. 1994) (applying New York law); Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co, 765
A.2d 891,897 (Conn. 2001).

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