Shaw v. National Union Fire Ins. Co. of Pittsburgh

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 13, 2010
No. 09-14669
JOHN LEY
Non-Argument Calendar
CLERK
________________________

D. C. Docket No. 08-00608-CV-J-25-JRK

JAMES SHAW,
CAROL SHAW,

Plaintiffs-Appellants,

versus

NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH,
PENNSYLVANIA,
a foreign corporation,
Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(May 13, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:

James Shaw broke both legs and his back, shattered his ankles, and lost one-

third of his right heel when he fell from the roof of a building. Because he could

no longer work, Shaw submitted a claim to National Union Fire Insurance

Company for “permanent total disability” benefits under an insurance policy

issued in Florida the previous year. After National Union denied Shaw’s claim, he

sued, and National Union removed the case to federal court.1 The question before

us is whether the policy’s definition of permanent total disability unambiguously

made dismemberment, blindness, or paralysis a condition of Shaw’s eligibility for

benefits.

I

The question here turns on the meaning of the word and in two riders to

Shaw’s insurance policy, which promised him monthly and lump-sum benefits if

he became “permanently totally disabled.” The riders define that condition in

substantively identical ways, and we reproduce the lump-sum rider’s definition in

its entirety here:

Permanently Totally Disabled/Permanent Total Disability as used in
this rider means:

1
See 28 U.S.C. §§ 1332(a), 1441(a).

2
1. That the Insured has suffered any of the following:

a. loss of both hands or feet; or
b. loss of one hand and one foot; or
c. loss of sight in both eyes; or
d. Hemiplegia;or; or [sic]
e. Paraplegia; or
f. Quadriplegia

“Loss of a hand or foot” means complete severance through or
above the wrist or ankle joint. “Loss of sight in both eyes” means
total and irrecoverable loss of the entire sight in both eyes.

“Hemiplegia” means the complete and irreversible paralysis of the
upper and lower Limbs of the same side of the body. “Limb(s)”
means entire arm or entire leg. “Paraplegia” means the complete
and irreversible paralysis of both lower Limbs. “Quadriplegia”
means the complete and irreversible paralysis of both upper and
both lower Limbs.

and

2. the Insured is permanently unable to perform the material and
substantial duties of any occupation for which he or she is
qualified by reason of education, experience or training. However,
with respect to an Insured for whom an occupational definition of
Permanently Totally Disabled/Permanent Total Disability is not
appropriate, Permanently Totally Disabled/Permanent Total
Disability means, as used in this Rider, that the Insured is
permanently unable to engage in any of the usual activities of a
person of like age and sex whose health is comparable to that of
the Insured immediately prior to the accident; and

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 3. the Insured is under the supervision of a Physician unless the
Insured has reached his or her maximum point of recovery.2

The and that matters here is the one between numbered paragraphs 1 and 2.

Shaw argues that the riders’ punctuation, spacing, and context support a

“disjunctive” or “cumulative” reading of that and. In other words, Shaw argues

that he was entitled to benefits as long as he satisfied the conditions in either

paragraph 1 or paragraphs 2 and 3. By contrast, National Union contends that the

and must be read “conjunctively”—in other words, that the policy required Shaw

to satisfy the conditions in all three numbered paragraphs. Because Shaw

concedes that he suffered none of the injuries listed in paragraph 1, National

Union argues that he is ineligible for the policy’s disability benefits.

The district court rejected Shaw’s interpretation of the policy language as

“strain[ed]” and granted National Union’s motion for summary judgment.3 Shaw

appeals, arguing that the district court should have construed the policy in favor of

2
The monthly-benefit rider’s definition of permanent total disability differs from that of
the lump-sum rider in three minor ways. First, the monthly rider does not contain the lump-sum
rider’s typographical errors (“;or; or”) in paragraph 1(d). Second, the monthly-benefit rider lacks
a period at the end of the last sentence in paragraph 1 (following “Limbs”). Finally, the monthly
rider lacks the additional carriage return before the and separating paragraphs 1 and 2.
3
In addition to the district court in this case, federal district courts in Texas and
Wisconsin have concluded that similar definitions of permanent total disability require an
insured to satisfy the conditions in all three paragraphs. Tolbert v. Nat’l Union Fire Ins. Co. of
Pittsburgh, No. 3:08-CV-1112-N (N.D. Tex. June 24, 2009) (unpublished); Nichols v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 509 F. Supp. 2d 752 (W.D. Wisc. 2007).

4
coverage because it was ambiguous. We review the district court’s summary

judgment de novo and interpret the terms of Shaw’s insurance policy according to

Florida law. State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th

Cir. 2004).

II

“Under Florida law, insurance contracts are construed according to their

plain meaning. Ambiguities are construed against the insurer and in favor of

coverage.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528, 532

(Fla. 2005). But a policy provision is ambiguous only if “susceptible to more than

one reasonable interpretation, one providing coverage and the []other limiting

coverage.” Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000).

And “in construing insurance policies, courts should read each policy as a whole,

endeavoring to give every provision its full meaning and operative effect.” Id.

We initially note that National Union’s interpretation of the policy is a

reasonable one. Shaw argues that the riders’ suggestion, in paragraph 2, that “an

occupational definition” of permanent total disability may not always be

“appropriate” implies that paragraph 1 contains its own, stand-alone definition of

the term. Accordingly, Shaw contends that having satisfied the conditions of

paragraphs 2 and 3, he is eligible for benefits without meeting the stand-alone

5
requirements of paragraph 1. But the plain language of paragraph 2 draws a

distinction between “an occupational definition” and a “usual activities” definition

of permanent total disability—not a distinction between paragraphs 1 and 2.4

Shaw also argues that National Union’s interpretation would conflict with

the monthly rider’s provision for the cessation of benefits payments if “the Insured

ceases to be Permanently Totally Disabled.”5 According to Shaw, because an

insured could never cease to be irrevocably blind, irreversibly paralyzed, or an

amputee, reading the conditions in all three numbered paragraphs as joint

prerequisites to benefits eligibility would render the cessation provision

superfluous. But despite the semantic awkwardness of the phrase “ceas[ing] to be

Permanently Totally Disabled” (emphasis added), we find Shaw’s argument on

this point unpersuasive. Under National Union’s interpretation of the policy, an

insured must satisfy the requirements of all three paragraphs, and although a

“permanently totally disabled” insured could never regrow a lost arm, he could, in

theory, regain the ability to work.

4
See either rider at paragraph 2: “[W]ith respect to an Insured for whom an occupational
definition . . . is not appropriate, Permanently Totally Disabled/Permanent Total Disability
means . . . that the Insured is permanently unable to engage in any of the usual activities of a
person of like age and sex . . . .”
5
The text of the relevant provision reads: “The benefit is payable monthly as long as the
Insured remains continuously Permanently Totally Disabled due to that Injury, but ceases on the
earliest of: (1) the date the Insured ceases to be Permanently Totally Disabled . . . .”

6
 Our task, then, is to decide whether the and in question, read properly in the

context of the policy as a whole, is susceptible to more than one reasonable

interpretation. In short, can the and between paragraphs 1 and 2 reasonably be

read in a way that allows Shaw to qualify for benefits without being blind,

dismembered, or paralyzed?

III

The parties’ dispute here highlights a recurring problem: “[E]very use of

‘and’ or ‘or’ as a conjunction involves some risk of ambiguity.” Maurice B. Kirk,

Legal Drafting: The Ambiguity of “And” and “Or”, 2 Tex. Tech. L. Rev. 235, 253

(1971). As we have recognized in our cases, “[i]t is an established princip[le] that

‘the word “or” is frequently construed to mean “and,” and vice versa, in order to

carry out the evident intent of the parties.’” Noell v. Am. Design, Inc., 764 F.2d

827, 833 (11th Cir. 1985) (quoting Dumont v. United States, 98 U.S. 142, 143

(1878)).6 In other words, “there is more to ‘and’ than meets the eye.” OfficeMax,

Inc. v. United States, 428 F.3d 583, 588 (6th Cir. 2005).

6
Not all observers have celebrated the frequency of this principle’s application. See
MacDonald v. Pan Am. World Airways, Inc., 859 F.2d 742, 746 (9th Cir. 1988) (Kozinski, J.,
dissenting) (“As a linguistic matter, ‘and’ and ‘or’ are not synonyms; indeed, they are more
nearly antonyms. One need only start the day with a breakfast of ham or eggs to be duly
impressed by the difference. While ‘and’ and ‘or’ are both small words, and are occasionally
seen joined with a slash, when they stand alone, they have substantially different meanings with
dramatically different effects. We give our language, and our language-dependent legal system, a
body blow when we hold that it is reasonable to read ‘or’ for ‘and.’”).

7
 The problem with and is that “chameleonlike, it takes its color from its

surroundings.” Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir.

1958).7 Specifically, it can be used either “jointly” (e.g., “[both] A and B”) or

“severally” (e.g., “A and B [meaning A or B, or both]”).8 Kirk, supra, at 238

(citing Reed Dickerson, The Fundamentals of Legal Drafting 77 (1965)). For

example, when a person speaks broadly of “charitable and educational

institutions,” does she use and jointly (“conjunctively” in National Union’s

words)—to refer to individual institutions that are both charitable and

educational—or severally (“disjunctively” or “cumulatively” in Shaw’s

words)—to refer to all institutions that are either charitable or educational, but

may also be both? See id. at 238–40.9 That people sometimes use and to connect

7
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted the
decisions of the former Fifth Circuit as binding precedent.
8
The corresponding difficulty with or is that it can be used in both an “inclusive” sense
(“A or B [or both]”) and an “exclusive” sense (“A or B [but not both]”). Kirk, supra, at 237–38.
Compare the phrase, “if you are a husband or a father, you’ll understand,” with, “you may eat an
apple or an orange.” In the first example, the or is probably inclusive (people who are both
husbands and fathers will probably understand, too), but in the second, it is probably exclusive
(you are probably not allowed to eat both fruits). Note that the inclusive sense of or overlaps
with the several sense of and.
9
We eschew the parties’ conjunctive–disjunctive dichotomy because of its potential to
mislead. The word and always serves some “conjunctive” function; the question in a particular
context is what other words the and is connecting, and how. Cf. OfficeMax, 428 F.3d at 600
(Rogers, J., dissenting) (“In each sentence the word ‘and’ has the same conjunctive meaning—the
difference lies in whether the preceding words are distributed over the conjoined elements or
not.”).

8
mutually exclusive concepts, as in the phrase, “medical and burial expenses,” cf.

id. at 238, only increases the potential for confusion.

Yet the potential for confusion does not mean that every occurrence of the

word and is ambiguous. On the contrary, the context in which the word appears

often resolves any superficial uncertainty. In the phrase, “medical and burial

expenses,” for example, and is necessarily used severally: because no single

expense can be both “medical” and “burial,” interpreting and jointly would make

no sense.

The general rule in this circuit—and in Florida—is that “unless the context

dictates otherwise, the word ‘and’ is presumed to be used in its ordinary sense, that

is, [jointly].” Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1332 (11th

Cir. 2005) (citing Crooks v. Harrelson, 282 U.S. 55, 58 (1930)); see also Fla.

Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings,

686 So. 2d 1349, 1355 (Fla. 1997) (noting that courts may read and severally

“where legislative intent mandates it” to avoid “unreasonable, absurd results”).

Thus, in cases where we have read and severally, the context fairly could be said

to have compelled that result. For instance, in Noell v. American Design, we

considered two retirement plans under which an employee forfeited his accrued

benefits “if he compete[d] with the Employer . . . ; if he [was] determined . . . to

9
have been guilty of committing theft, fraud or embezzlement . . . ; and if he [was]

determined . . . to have disclosed or released to third parties the Employer’s trade

secrets.” 764 F.2d at 829 (emphasis added). After considering the circumstances

and the plan summaries provided to the employees, we held that the word and had

to be read severally to effect the parties’ intent:

For the forfeiture clause to have meaning [if and were read jointly],
an employee would first have to be guilty of theft, fraud or
embezzlement, he would then have to disclose or release to third
parties the employer’s trade secrets, and then he would have to go to
work for a competitor. It would be unreasonable to conclude that an
employer, who has provided its employees with benefits in excess of
those required by law, would place such an onerous burden on itself
with respect to the termination of the benefits.

Id. at 833. Similarly, in Peacock v. Lubbock Compress Co., 252 F.2d at 893, we

held that a several reading of the word and in the statutory phrase, “the ginning

and compressing of cotton,” was the only one that made any sense: “[I]t is an

acknowledged undisputed fact of the cotton industry that compressing is an

operation entirely removed from ginning and that the two are never carried on

together. To read [the phrase] literally [i.e., jointly] here is to read it out of the

statute.”

We reached the opposite conclusion in American Bankers, 408 F.3d 1328.

There we interpreted a statute that defined toll telephone service as a service for

10
which the charge “varie[d] in amount with the distance and elapsed transmission

time of each individual communication.” 26 U.S.C. § 4252(b)(1). Without

evidence supporting a several reading, we read the and jointly: “[T]he provision

requires that to come within the definition of ‘toll telephone service’ the rate must

vary by both ‘distance and elapsed transmission time.’” 408 F.3d at 1334; accord

OfficeMax, 428 F.3d 583.

In light of these authorities, we agree with National Union that the and in

this case must be read jointly: Shaw cannot be “permanently totally disabled”

without suffering one of the injuries listed in paragraph 1. Despite Shaw’s

arguments regarding syntax and punctuation, we cannot say the context here

“dictates” a several reading of and. Am. Bankers, 408 F.3d at 1332.

We find each of Shaw’s arguments against this conclusion unavailing.

First, he argues that the period at the end of paragraph 1 in the lump-sum rider

“establishes the disjunction between Paragraphs 1 and 2.” But paragraph 1

contains a series of sentences separated by periods, and we do not believe that the

inclusion of a similar period at the close of the paragraph’s final sentence effects a

“disjunctive” break. In addition, because the final period does not appear in the

monthly-benefit rider, Shaw’s reading would have the two riders apply in different

contexts. We will not assume from minor inconsistencies in punctuation that the

11
parties intended two materially identical provisions of the same insurance policy

to apply at different times.

Shaw’s second argument is that we implicitly held in American Bankers that

the and separating two paragraphs in 26 U.S.C. § 4252(b) had a several meaning.

The factual premise of this argument is correct, but the inference Shaw draws is

not. Section 4252(b) defines toll telephone service as (1) a service for which the

charge “varies in amount with the distance and elapsed transmission time of each

individual communication . . . and” (2) a service with a flat, periodic charge for

unlimited calls. Because the and between subsections (1) and (2) connects two

mutually exclusive concepts, we had to read it severally. See OfficeMax, 428 F.3d

at 591. By contrast, where the word has a natural and defensible joint reading—as

in the phrase, “varies in amount with the distance and elapsed transmission

time”—we read it jointly.

Finally, Shaw argues that a joint reading of the and between paragraphs 1

and 2 would render National Union’s policy inconsistent with “standard”

disability-insurance policies. But this is a red herring; the parties to an agreement

are bound by the contract into which they enter, not according to the contractual

obligations of others. Although Florida law permits us to “consider established

12
custom and usage in the insurance industry,” Auto-Owners, 756 So. 2d at 36, we

will not make the parties to one contract abide by the terms of another.10

Because Shaw has not suffered the dismemberment, blindness, or paralysis

unambiguously required by his disability-insurance policy, we AFFIRM the

summary judgment in National Union’s favor.

10
The dispute in the Auto-Owners case concerned the scope of a limitation-of-liability
clause. The Florida Supreme Court held that the clause was ambiguous, in part because other
insurance policies contained different clauses that “clearly and unambiguously” limited insurer
liability. 756 So. 2d at 36. Here, no evidence suggests that other insurers customarily define
permanent total disability in a way that would more “clearly” effect National Union’s
interpretation of the policy. On the contrary, if the parties had intended Shaw’s reading of the
policy, they could have used the broader term total disability. See Fla. Stat. § 627.4233 (“[T]he
definition of total disability may not be more restrictive than the person’s inability to perform any
work or occupation for which the person is reasonably qualified or trained.”)

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