On the morning of Sept. 11, 2001, a conspiracy of 19 men hijacked four planes departing from three different cities. The two planes that departed from Boston were flown, with 17 minutes of one another, into the two towers of the World Trade Center in Lower Manhattan. We all know what happened next.
Well, one of the things that happened was a spate of lawsuits, some lasting more than a decade, over insurance coverage for the owners of the WTC lease and the businesses located there and in the affected neighborhood. Were two planes crashing into two towers two separate “events,” or just one? Was the terrorist conspiracy a single “cause” of the resulting claims, or were there multiple causes?
Billions of dollars were at stake depending on how courts would read such contractual language, some of which wasn’t yet finalized at the time of the attacks. Decisions and settlements varied somewhat, but most tended to converge around the consensus that there were two “events” with one “cause.” Things could easily have been resolved in the opposite direction.
The Sept. 11 lawsuits provide an illustrative frame through which to view legislation recently signed by Arizona Gov. Doug Ducey requiring that state courts only regard the English-language versions of auto, home and life insurance contracts as binding, even where a consumer may have signed a version in another language – usually Spanish.
Sponsored by state Rep. David Livingston, R-Peoria, the legislation has proven controversial, for perfectly understandable reasons. In a state where issues around immigration enforcement have long proved contentious and often racially charged, it’s obvious that the legislation would be interpreted by some as punitive toward consumers for whom English is not a native language. Indeed, one would not be surprised if some lawmakers voted for the bill expressly because that is how they interpreted it, as well.
Opponents of the bill like state Reps. Isela Blanc, D-Tempe, and Olivia Cajero Bedford, D-Tucson, have warned that Spanish-speaking consumers could be sold mistranslated contracts whose terms bore little resemblance to those in the English contract that actually “counts.” These concerns should be taken seriously, as they represent incredibly thorny issues to which courts and regulators will need to pay particular attention.
Existing state law already requires insurers to use translators approved by the state Department of Insurance, and it will be incumbent on the department to ensure its vetting process is effective. Regulations against false advertising and acting in bad faith, and judicial rules requiring coverage ambiguities be resolved in favor of the policyholder, also already represent strong protections. Judges must be careful to ensure these protections are extended fairly to all insurance consumers, regardless of their native language.
But as we see from the Sept. 11 lawsuits—or from myriad other insurance coverage disputes, such as the profusion of “concurrent causation” litigation following Hurricane Katrina—insurance is an area where the particularities of language matter quite a bit.
Where you must deal with multiple-language contracts, the American Bar Association has offered guidance: there can only be one fully integrated contract considered binding by the courts. The other must be regarded as a reference. The dominant contract doesn’t have to be the English-language contract but—given that this is the United States, and that Arizona voters polled 3-1 to make English the state’s official language in 2006—that is, practically, what it is going to be.
It is difficult enough to resolve how the common law has defined terms in a single language. It would be nearly impossible to function if courts had to separately consider the nuances of two or more.
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