When we work with an insurer to get the WriteMark® on their documents, we always anticipate a bit of pushback from the legal team. This conflict plays out respectfully, through document comments, tracked changes, and meetings. It’s an essential and robust part of a good editing process.
We bring the plain language expertise; lawyers bring their intricate legal knowledge and fine-tuned risk lens. Together, we strike a balance in the text that’s both reader-friendly and secure against unintended liability.
In 2023, a dispute over an insurance claim went all the way to the High Court and the Court of Appeal. The details of the case demonstrate the importance of both plain language and legal rigour.
The $1.2 million question
Most insurance disputes don’t make the news. An RNZ headline captures the absurdity that propelled this one to newsworthiness.
Man who didn’t die loses court battle to get life insurance paid out
Here’s the story: a Christchurch man was diagnosed with cancer in 2019. Thankfully, due to the treatment he received, he was still alive 4 years later.
But he argued that, according to the wording of his insurance policy, he had been diagnosed with a ‘terminal illness’ and was therefore owed a $1.2 million payout from his insurer.
The debate hinged on the following definition.
terminal illness and terminally ill means
-
-
- in the opinion of a specialist medical practitioner; and
- if we require, in the opinion of one of our approved specialist medical practitioners; and
- in our assessment, having considered medical or other evidence we may require,
-
your life expectancy is, due to sickness and regardless of any available treatment, not greater than 12 months.
The construction and conditions of the definition make it tricky to wade through, but the meaning seems relatively clear, right? You’re ‘terminally ill’ if your doctor says you’re going to die within 12 months, regardless of the treatment you receive.
But the claimant had his own interpretation. Can you spot the ambiguity?
Two readings with opposite meanings
In the definition, the phrase ‘regardless of’ can be interpreted in opposite ways.
- You will die within 12 months, despite the effect of treatment (the insurer’s intent).
- You will die within 12 months, ignoring the effect of treatment (the claimant’s read).
Because he would have died within 12 months without treatment, the Christchurch man argued he was terminally ill in 2019. The insurer, naturally, disagreed.
The courts shared the insurer’s interpretation, which most of us can probably agree is the more likely read. But a drawn-out dispute and multiple court appearances were no doubt a headache the insurer would have preferred to avoid.
And, with a plainer definition, that might have been possible.
Plain language meets legal reality
If we were working with the insurer to get the WriteMark® on this life policy, we would give them a few options to stamp out the ambiguity. We’d get their feedback and suggestions, revise, and rework until we landed on a definition that was crystal clear and watertight.
For example, we might suggest the following rewrite (setting aside the diagnosis criteria for conciseness).
Terminal illness or terminally ill means
you’re expected to die from an incurable sickness within 12 months.
In our view, describing the sickness as ‘incurable’ captures the original intent of ‘regardless of available treatment’ much more concisely.
But say we get this feedback from the legal review:
This wording is concise, but ‘incurable’ is its own can of worms and would need to be defined. Please revert to original wording.
We would push back on this, because we know the original wording has an ambiguity that makes the cover unclear for the reader. But we respect that the lawyers don’t want to touch ‘incurable’ — perhaps a legal precedent or regulation is steering them away from that term. That’s their area of expertise, not ours.
So, we suggest a new version that’s closer to the original, but resolves the ambiguity.
Terminal illness or terminally ill means
you’re expected to die from sickness within 12 months, even if you receive treatment.
This version gets the legal sign-off. It’s clearer for the reader, safe for the insurer, and helps the document reach WriteMark® standard.
Ambiguity is its own liability
As the case above shows, ambiguity in an insurance policy isn’t just a problem for the reader. It can be a liability for the insurer, too.
Although they won in court, we suspect the insurer in this case would have preferred not to have the claim disputed in the first place.
Any change to the wording of a legal document can introduce risk. But we believe carefully crafted plain language — in collaborative conversation with legal expertise — reduces risk, as well as making life easier for readers.
Contact us about working together to achieve the WriteMark® on your documents