The Comma Revisited

In 2021, we published an article that related the tragic and true story of Sir Roger Casement (July 2021; “I Was Hanged by a Comma”). We also provided a few examples of insurance claims that illustrated the importance of this “lowly” mark of punctuation in more than a few legal decisions.

Readers of these accounts responded incredulously, with comments such as, “surely you jest” or with assertions that the cited cases were "merely aberrations.”

We are here now to tell you that they were neither aberrant nor in jest. The comma remains very much in play. 

One needs only to type in the word “comma” in a national legal database to find judicial comment in thousands of cases. The spectrum ranges from criminal offenses to tariffs; insurance coverage and beyond.

We’ll begin with some non-insurance examples to illustrate the point and then move on to a duo of insurance claims in which the comma played a pivotal role. (Note: pseudonyms are used in these examples, though they are derived from actual case law or studied commentaries).   

A STAY TOO LONG

Ms. Jones parked her truck on Main Street for two consecutive days without moving it. She was cited for violating a law which prohibited the parking of certain types of vehicles on Main Street for longer than 24 hours including “any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle.”

Ms. Jones beat the citation by arguing that her truck was not a “motor vehicle camper.” Had the municipality been clearer in its writing by placing a comma between “vehicle” and “camper,” Ms. Jones may have found herself in stripes.

To have snared Ms. Jones, a properly drafted clause would have read: “any motor vehicle, camper, trailer, farm implement and/or non-motorized vehicle.”

A FRUITY RESULT

Because of an unwanted comma, the American taxpayers lost over $40 million (today’s dollars) in tariff revenue due to a seemingly minor alteration in punctuation from the year of enactment to the year following.

The law, as originally drafted, allowed “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation” to be exempt from import duties. 

For some inexplicable reason, a later redraft of the law resulted in a stray comma being inserted between the words “fruit” and “plants.” Suddenly, all tropical and semi-tropical fruits could be imported without any tax levy. Tax-free status was no longer restricted to “fruit plants.”

Sounds like our government at work.

GIFT GIVERS BEWARE

Mr. Smith, a kind and elderly man, left his entire estate to: “Jane, William, Mary and Anne.”

Jane and William argued that Mr. Smith’s estate should be divided into three equal parts: one third to Jane, one third to William, with Mary and Anne sharing the final third. Anne and Mary vehemently argued to the contrary: the estate should be divided into quarters with one-fourth going to each of the named individuals.

What result? A long, arduous, and costly lawsuit.

A simple and accurate placement of a comma could have prevented the ensuing animosity and prolonged litigation amongst the players.

“I, Mr. Smith, leave my entire Estate to Jane, William, Mary, and Anne”.

Needless to say, Jane and William, on the one hand, and Mary and Anne, on the other, no longer attend family affairs together.

MILLIONS OF DOLLARS IN OVERTIME WAGES RECOVERED

The delivery drivers were disgruntled when their employer refused to pay them the overtime wages they believed to be owed to them.

At issue was a state statute that made employees ineligible to earn overtime wages for “(t)he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”

The court was tasked with determining the effect of the lack of a comma after the word “shipment.” Two questions were posed:

1. Is “packing for shipment” a different act than “distribution”; or;
2. Is there just one activity-- “packing for shipment or distribution”?

The complaining drivers clearly participated in the “distribution” of the products but were not involved in the “packing for shipment or distribution.”

Due to a lack of comma after “shipment,” the court decided that “packing for shipment or distribution” was a single activity in which the drivers were not involved. The statute was deemed inapplicable, and the drivers awarded overtime wages to the tune of millions.

Needless to say, the drivers were quite happy with the outcome.

FROM THE WORLD OF INSURANCE

It is now time to turn to a couple examples of insurance coverage which hinged on the placement of a comma.

FINE ARTS

A devastating fire destroyed VFW Post No. 101 in scenic Napa Valley. Property damage, business interruption and extra expense claims were duly submitted, and coverage was ultimately exhausted for both real and personal property. 

In addition to the normal array of contents, several oak wall plaques with brass plates etched with the names of current and past members were lost. These plaques honored fallen soldiers and were of historical value.

Because there was inadequate insurance to pay for all of the lost contents and the oak wall plaques, the latter items were removed from the personal property claim and a submission was made under the additional coverage found in a fine arts endorsement.

An argument ensued as to whether the plaques were items of ordinary personalty (for which there was no more coverage available) or fine arts (for which coverage still remained). 

The applicable policy (endorsement) provision defined “Fine Arts” thusly:

“(f)ine (a)rts means paintings, etchings, pictures, tapestries, art glass windows, valuable rugs, statuary, marble, bronzes, antique silver, manuscripts, porcelains, rare glass, bric-a-brac, and similar property, of rarity, historical value or artistic merit.”

In a ruling against the Post, the placement of the comma between “similar property” and “of rarity….” was emphasized. It was said that, for an item to be covered as a “fine art,” it had to be like those listed AND be rare, historical, or have artistic merit. 

Note was also made that, if the comma had not been placed where it was, a broader and more favorable reading of the policy might have resulted in coverage. In other words, without the comma, the Post might have prevailed by arguing that the plaques were “similar property of historical value” and there was no requirement that they be like the listed items.

THE CASE OF THE MISSING APPLIANCES

Mr. and Mrs. Smith were temporarily living in an apartment while building their dream home in Shady Glen Oaks. Before they took up occupancy, thieves broke into the house and stole all the installed appliances. At the time of the thievery, the house had been substantially completed and the doors and windows were locked; only minor items remained to be done. 

The Smith’s submitted a claim under their homeowner’s policy. The claim was denied under an exclusion which read:

“…2. We do not insure, however, for loss: … (3) Theft:…(b) In or to a dwelling under construction, or of materials and supplies for use in the construction until the dwelling is finished and occupied; ….”

The insureds contested the denial, and the consensus of experts was that they should prevail based upon the following reasoning:

The modifying clause “until the dwelling is finished and occupied” only applied to the theft of building materials and supplies, not to property “in or to a dwelling under construction.” If a comma had been inserted between the words “construction” and “until,” then the requirement for occupancy would apply to both the dwelling and building materials.

As a side note, the limitation “under construction” was inapplicable because the house was finished (except for minor details), locked and ready.

CONCLUSION

As one court so succinctly stated:

“ [People’s] lives may depend upon a comma …(t)he ‘life’ of each parties argument (as to whether coverage exists) depends on a single comma.” (2007 U.S. Dist. Lexis 64850; Court’s emphasis).

For almost 40 years, the professionals at Adjusters International-MBC have been reviewing policies and their punctuation, seeking interpretations and applications most favorable to their clients -- the insureds.