King Richard : A horse, a horse! My kingdom for a horse!

When, on March 11, 2017, the First Circuit Court of Maine handed down its ruling in O’Connor et. al. v. Oakhurst Dairy, the owner of Oakhurst Dairy, a family business, may well have shouted, after Shakespeare’s King Richard, “A Comma, a comma! My company for a Comma!”

Yes, for want of a comma in a Maine law regarding overtime pay, Oakhurst lost an estimated 10 million dollars in overtime pay it had denied to its workers.

Maine law requires workers to be paid 1.5 times their normal rate for each hour worked beyond 40 hours. But Maine carved out certain exemptions for food purveyors. The law provided that the overtime kicker did not apply to :

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

• Agricultural produce;
• Meat and fish products; and
• Perishable Foods

The delivery drivers — who manifestly did not pack food for delivery — contended the statutory exclusion was ambiguous for want of a comma after the phrase “packing for shipment.” Without a comma, the workers argued, the law  did not apply to them because they did not pack; they simply drove the trucks. Thus, without the comma after shipment, one plausible interpretation was the law exempted from the overtime kicker only Maine workers who packed for shipment or distribution — but not the truck drivers.

And, after a lengthy grammatical exegesis on the so-called Oxford comma (which I invite you to read), the First Circuit agreed with the truck drivers.

In grammar school the nuns who taught me loved the Oxford comma. In any list of more than three, a comma must precede the final “and” (as in dogs, cats, and mice). But over time, writers fell out of love with the Oxford comma and omitted it, except when needed for clarity. In fact, in the New York Times piece on this decision the editors gave the perfect example of when an Oxford comma is needed. “I’d like to thank my parents, Mother Teresa and the Pope.” Without a comma after Mother Teresa, hilarity results, if not outright scandal.

While Oakhurst is not an “insurance” case, it has special relevance to coverage counsel. Each day we confront the doctrine of Contra Proferentem (Latin: literally “against [the] offeror”). In our world, it means any policy ambiguity is construed against the insurer. And, as Oakhurst demonstrates, even the want of an Oxford comma can create unintended ambiguity.

But enough about Oxford commas. In most cases, the best way to counter a contra proferentem claim is to get the court to read the policy in context; and to give policy language its customary and ordinary meaning.

And that’s it for this This and That. If you have any comments about this grammatical excursion, please call or email Dennis.