Restatement of Law of Liability Insurance: The Plain-Meaning Rule

By: Amy R. Paulus and Henry T.M. LeFevre-Snee

The American Law Institute’s (“ALI”) draft Restatement of the Law of Liability Insurance’s (“Restatement”) use of “custom, practice and usage” evidence to determine the plain meaning of unambiguous terms does not find support in a majority of states, highlighting the need for the ALI to rethink this and other decisions prior to the issuance of the Restatement’s final version. The urgency for these revisions is underscored by Ohio’s recent rejection of the Restatement in its totality.

Section 3 of the Restatement, entitled, “The Plain Meaning Rule,” provides as follows:

(1) The plain meaning of an insurance policy term is the single meaning to which the language of the term is reasonably susceptible when applied to facts of the claim at issue in the context of the entire insurance policy.

(2) If an insurance policy term has a plain meaning when applied to the facts of the claim at issue, the term is interpreted according to that meaning.

(3) An insurance policy term is ambiguous if there is more than one meaning to which the language of the term is reasonably susceptible when applied to the facts of the claim at issue in the context of the entire insurance policy. An ambiguous term is interpreted as specified in § 4.

The Restatement distinguishes the “plain meaning” approach set out above from what it labels the “contextual” approach. Under the “contextual” approach, “courts interpret insurance policy terms in light of all the circumstances surrounding the drafting, negotiation, and performance of the insurance policy.” Restatement, Section 3, Comment a. As the Restatement (perhaps begrudgingly) concedes, the vast majority of jurisdictions apply some variation of the “plain meaning” rule.[i] Id. Acceptable sources of “plain meaning” include “dictionaries, court decisions, statutes and regulations, and secondary legal authority such as treatises and law review articles.” Restatement, Section 3, Comment b.

By contrast the “contextual” approach is a decidedly minority rule.[ii] Regardless, the Reporters’ Note goes on at length about legal justifications for application of the “contextual” approach. Restatement, Section 3, Reporters’ Note a. This exposition may be a left-over from earlier drafts’ adoption of a plain-meaning “presumption,” which was wisely rejected by ALI Reporter Tom Baker after jurists swayed him that the proposed rule was unwieldy and likely to cause more problems than it would solve.[iii]

Contrary to the majority rule, the Restatement adopts “custom, practice and usage” as a source of plain meaning. Restatement, Section 3, Comment c. The Restatement limits consideration to such custom, practice, and usage in effect at the time the transaction was entered into, and where such meaning “can be discerned from public sources and with only limited discovery (such as through an affidavit of an expert in the trade or business, who is subject to deposition, but without the need for extensive document requests)”.  Id.

While the Restatement vaguely posits that “[m]any courts that follow a strict plain-meaning rule also consider custom, practice, and usage when determining the plain meaning of insurance policies”, a more precise reflection of fact is that the majority of courts reject such evidence to interpret unambiguous contract provisions. Thirty-one jurisdictions, including New York, Illinois, and Florida, permit such evidence only to clarify ambiguous terms, or add a non-contradictory term.[iv] By contrast, only twenty jurisdictions permit “custom, practice and usage” evidence to provide meaning to unambiguous terms.[v] Such explicit reliance upon a non-majoritarian rule undermines the authority of the Restatement as a supposed reflection of settled law, and instead casts it as an advocate for what the law “ought to be.”[vi] See Kansas v. Nebraska, 135 S. Ct. 1042, 1064, 191 L. Ed. 2d 1, 23 (2015) (Scalia, J., concurring in part and dissenting in part).[vii]

Perhaps rejecting an attempted encroachment on its sovereignty, the State of Ohio recently passed a law declaring that “The ‘Restatement of the Law, Liability Insurance’ that was approved at the 2018 annual meeting of the American law institute does not constitute the public policy of this state and is not an appropriate subject of notice.” OHIO REV. CODE Sec. 3901.82. The ALI’s Deputy Director, Stephanie Middleton, has confirmed that such a wholesale rejection of the ALI’s prescriptions was unprecedented.[viii] Middleton has also stated that the ALI is in the process of making some changes to the draft Restatement, in response to written comments.[ix] The Restatement’s position regarding custom and practice evidence should be among the changes made.

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                [i] Ho Bros. Restaurant, Inc. v. Aetna Casualty & Surety Co., 492 So. 2d 603, 605 (Ala. 1986); Western World Ins. Co. v. Branch, 965 S.W.2d 760, 761 (Ark. 1998); Am. Family Mut. Ins. Co. v. Hansen, 375 P.3d 115, 117 (Colo. 2016); Heyman Associates No. 1 v. Insurance Co. of the State of Pennsylvania, 653 A.2d 122, 135 (Conn. 1995); Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997); Beck v. Cont’l Cas. Co. (In re May), 936 A.2d 747, 751 (D.C. 2007); Dimmitt Chevrolet, Inc. v. Southeastern Fid. Ins. Corp., 636 So. 2d 700, 705 (Fla. 1993); Nuvell Nat’l Auto Fin., LLC v. Monroe Guar. Ins. Co., 736 S.E.2d 463, 468 (Ga. App. 2012); Sentinel Ins. Co. v. First Ins. Co., 875 P.2d 894, 915 (Haw. 1994); Hill v. Am. Family Mut. Ins. Co., 249 P.3d 812, 815 (Ida. 2011); Zurich Ins. Co. v. Northbrook Excess & Surplus Ins. Co., 494 N.E.2d 634, 642 (Ill. App. 1986); Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1101 (Ind. 1985); Central Sec. Mut. Ins. Co. v. De Pinto, 681 P.2d 15, 17 (Kan. 1984); Pierce v. West American Ins. Co., 655 S.W.2d 34, 36, (Ky. App. 1983); La. Civ. Code Ann. art. 2046; Langevin v. Allstate Ins. Co., 66 A.3d 585, 590 (Me. 2013); Clendenin Bros. v. U.S. Fire Ins. Co., 889 A.2d 387, 393 (Md. 2006); Mount Vernon Fire Ins. Co. v. VisionAid, Inc., 76 N.E.3d 204, 208–209 (Mass. 2017); Stine v. Continental Casualty Co., 349 N.W.2d 127, 138 (Mich. 1984); Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn. 2013); Titan Indem. Co. v. Pope, 876 So. 2d 1096, 1100 (Miss. 2004); Long v. Shelter Ins. Cos., 351 S.W.3d 692, 701-702 (Mo. App. 2011); Wendell v. State Farm Mut. Auto. Ins. Co., 974 P.2d 623, 628, (Mont. 1999); Henn v. Am. Family Mut. Ins. Co., 894 N.W.2d 179, 184 (Neb. 2017); Farmers Ins. Exch. v. Young, 832 P.2d 376, 377-378 (Nev. 1992); Bates v. Phenix Mut. Fire Ins. Co., 943 A.2d 750, 753 (N.H. 2008); Cypress Point Condo. Ass’n v. Adria Towers, L.L.C., 143 A.3d 273, 286 (N.J. 2016); Selective Ins. Co. of Am. v. County of Rensselaer, 47 N.E.3d 458, 461 (N.Y. 2016); Walsh v. United Ins. Co., 144 S.E.2d 817, 820 (N.C. 1965); Hanneman v. Cont’l W. Ins. Co., 575 N.W.2d 445, 451 (N.D. 1998); Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v. Shane & Shane Co., L.P.A., 605 N.E.2d 1325, 1328 (Ohio Ct. App. 1992); BP Am., Inc. v. State Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 835-836 (Okla. 2005); Hoffman Constr. Co. of Alaska v. Fred S. James & Co. of Oregon, 836 P.2d 703, 706 (Or. 1992), aff’d sub nomine, North Pacific Ins. Co. v. Hamilton, 22 P.3d 739, 741-742 (Or. 2001); Williams v. GEICO Gov’t Emples. Ins. Co., 32 A.3d 1195, 1211 (Pa. 2011); Peerless Ins. Co. v. Luppe, 118 A.3d 500, 506 (R.I. 2015); Bardsley v. Gov’t Emples. Ins. Co., 747 S.E.2d 436, 440 (S.C. 2013); National Sun Indus. v. South Dakota Farm Bureau Ins. Co., 596 N.W.2d 45, 48-49 (S.D. 1999); Harrell v. Minnesota Mut. Life Ins. Co., 937 S.W.2d 809, 814 (Tenn. 1996); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998); Benjamin v. Amica Mut. Ins. Co., 140 P.3d 1210, 1213 (Utah 2006); Trinder v. Conn. Attys. Title Ins. Co., 22 A.3d 493, 496 (Vt. 2011); Salzi v. Virginia Farm Bureau Mut. Ins. Co., 556 S.E.2d 758, 760 (Va. 2002); Shields v. Enter. Leasing Co., 161 P.3d 1068, 1071-72 (Wash. App. 2007); Soliva v. Shand, Morahan & Co., 345 S.E.2d 33, 35 (W.Va. 1986); Bethke v. Auto-Owners Ins. Co., 825 N.W.2d 482, 488 (Wis. 2013); Colorado Cas. Ins. Co. v. Sammons, 157 P.3d 460, 465 (Wyo. 2007).

                [ii] See, e.g., Peterson v. Wirum, 625 P.2d 866, 871 (Alaska 1981); Am. Nat’l Fire Ins. Co. v. Esquire Labs of Arizona, 694 P.2d 800, 811 (Ariz. Ct. App. 1984); Pac. Gas & Elec. Co. v. G.W. Thomas Drayage Co., 442 P.2d 641, 644 (Cal. 1968); London Mkt. Insurers v. Super. Ct., 53 Cal. Rptr. 3d 154, 160-164 (Ct. App. 2007); Peak v. Adams, 799 N.W.2d 535, 544 (Iowa 2011); Nellis v. Farmers Ins. Co., 272 P.3d 143, 153 (N.M. App. 2011).

                [iii] Colleen Beverly, What’s Next Now that The Restatement of Liability Insurance was Approved? (May 22, 2018), https://www.clausen.com/whats-next-now-that-the-restatement-of-liability-insurance-was-approved/

                [iv] McCutchen Co. v. Media Gen., Inc., 988 So. 2d 998, 1004 (Ala. 2008) (“evidence of custom is admissible only to explain an ambiguous contract or to add to it an element not in contravention of its terms; but such evidence is never admissible to contradict the plain unambiguous covenants and agreements expressed in the contract itself.”); Coury Bros. Ranches v. Ellsworth, 446 P.2d 458, 464 (Ariz. 1968) (“Custom or usage is only justified when there is an ambiguity or uncertainty in the written instrument.”); Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 854 S.W.2d 321, 325, (Ark. 1993) (“[W]here the terms of a contract are ambiguous and capable of having more than one meaning, extrinsic evidence of custom and usage is permitted to establish the intent of the parties[.]”); Union & New Haven Trust Co. v. Watrous, 146 A. 727, 732 (Conn. 1929) (“When the terms of a contract are clear, unambiguous and valid, they must prevail, and no evidence of custom or usage can be permitted to change them.”); Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 62 A.3d 62, 75-76 (Del. Ch. 2013) (“If the language of the agreement is clear and unambiguous, the reviewing court finds the parties’ intent in the ordinary and usual meaning of the words they have chosen. If, however, the provisions in controversy are fairly susceptible of different interpretations or may have two or more different meanings, there is ambiguity. Then the interpreting court must look beyond the language of the contract to ascertain the parties’ intentions from extrinsic evidence, such as . . . business custom and usage in the industry.”); Tillery v. D.C. Contract Appeals Bd., 912 A.2d 1169, 1177 (D.C. App. 2006) (“A reasonable person is presumed to know all the circumstances before and contemporaneous with the making of the integration and is bound by all usages – habitual and customary practices – which either party knows or has reason to know. The standard is applied to the circumstances surrounding the transaction and to the course of conduct of the parties under the contract, both of which are properly considered when ambiguous terms are present.”); Farr v. Poe & Brown, Inc., 756 So. 2d 151, 153 (Fla. App. 2000) (“While custom or usage may be employed in explanation and qualification of terms of a contract that would otherwise be ambiguous, it cannot operate to contravene express instructions or to contradict an express contract to the contrary.”); Fireman’s Fund Ins. Co. v. Mercer Marine Transit Corp., 222 S.E.2d 138, 139-140 (Ga. App. 1975) (“[W]hen parties make an express contract which is plain and unambiguous, evidence of usage and custom in the trade is inadmissible to control, vary or contradict it; custom or usage cannot be repugnant to or inconsistent with the contract.”); Stewart v. Brennan, 748 P.2d 816, 821 (Haw. App. 1988) (“Where the terms in a contract are ambiguous, in order to ascertain the parties’ intent the trier of fact may consider evidence extrinsic to the written contract, including evidence of the surrounding circumstances and the parties’ subsequent conduct in construing the contract. . . . the custom and usage of the trade at the time are two of the surrounding circumstances which the trier of fact may consider.”); Knipe Land Co. v. Robertson, 259 P.3d 595, 601 (Ida. 2011) (“[E]vidence of custom or usage may not be introduced to vary or contradict the terms of a plain and unambiguous contract[.]”); Ill. Ins. Guar. Fund v. Nwidor, 2018 IL App (1st) 171378, P33 (“It is quite established that evidence of custom and usage is only admissible to explain uncertain or ambiguous terms of a contract.”); Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1059 (Ind. 2001) (“Evidence of industry practice is admissible to construe terms of art or ambiguous agreements.”); Becker v. Nahm & Turner, Inc., 435 S.W.2d 750, 752 (Ky. 1968) (“If the contract is silent or ambiguous, resort may be had to custom and usage in the business.”); Amoco Production Co. v. Texaco, Inc., 415 So. 2d 1003, 1006 (La. App. 1982) (“[E]vidence of custom and usage cannot be relied upon to reform or change an agreement that is not ambiguous[.]”); Unity Tel. Co. v. Design Service Co.,179 A.2d 804, 808 (Me. 1962) (“[W]hen a contract is clear and unambiguous, custom and usage may not be proved. Custom and usage may be proved to ascertain the intention of the parties only when it cannot be ascertained by the terms of the contract.”); Independence Township v. Reliance Bldg. Co., 437 N.W.2d 22, 24 (Mich. App. 1989) (“[W]here a contract is not ambiguous, evidence of custom and practice in an industry is not admissible.”); Bank of Forest v. Capital Nat. Bank, 160 So. 578, 580 (Miss. 1935) (“Usage and custom cannot be proved for the purpose of contradicting the express terms of a contract free from ambiguity, or to make the legal rights of parties to the contract other than expressed by its terms.”); Heiden v. General Motors Corp., 567 S.W.2d 401, 405 (Mo. App. 1978) (“Where the meaning of such terms is unambiguous and free from doubt, a custom or usage cannot be proved to explain the terms of provisions.”); Prof’l Bus. Servs. Co. v. Rosno, 680 N.W.2d 176, 188 (Neb. 2004) (“Evidence of custom is admissible when there is a conflict as to the terms of the contract to explain the meaning of the words or phrases used, or where the contract is silent as to certain points which may be inherent in the nature of the contract.”); Glick v. Chocorua Forestlands Ltd. P’ship, 949 A.2d 693, 700 (N.H. 2008) (“Absent ambiguity, however, we will determine the parties’ intent from the plain meaning of the language used in the contract.”); ConocoPhillips Co. v. Lyons, 299 P.3d 844, 860-861 (N.M. 2012) (“When a contract is silent regarding the subject matter at issue, [e]vidence of custom and usage may be used to ascertain the intention in reference to matters about which the contract is silent.”); 767 Third Ave. LLC v. Orix Capital Mkts., LLC, 26 A.D.3d 216, 218 (N.Y. App. Div. 2006) (“Since parol evidence is inadmissible absent ambiguity, there is no basis to admit evidence of current industry practice or custom[.]”); Come Big or Stay Home, LLC v. EOG Res., Inc., 816 N.W.2d 80, 84-85 (N.D. 2012) (“[W]here an agreement is silent or ambiguous on a point, and where there is a well-established custom concerning the subject, so that the parties may be presumed to have acted with reference thereto, such custom will be given effect as a part of the agreement.”); Schroeder v. Auto-Owners Ins. Co., 2004-Ohio-5667, P27 (Ohio App. 2004) (“Evidence of custom or usage may not be considered when the meaning of a contract is clear. It is only when the meaning of a writing is doubtful that such evidence may be considered.”); Pitco Prod. Co. v. Chaparral Energy, Inc., 63 P.3d 541, 546, n.25 (Okla. 2003) (“A finding of ambiguity must be made before the court can look at the custom of the industry to determine the parties’ obligations.”); Williams v. Ledbetter, 285 P. 214, 215 (Ore. 1930) (“The rule is that where the terms of the contract as alleged are not ambiguous or of doubtful meaning, evidence of a local custom or usage is inadmissible for the purpose of supporting the claim of either party as to what the terms of the express contract were.”); Moss v. Porter Bros., Inc., 357 S.E.2d 25, 28 (S.C. App. 1987) (“[P]arol or extrinsic evidence of a usage or custom is not admissible where the intent and meaning of the parties as expressed in a contract are clear and unambiguous, especially where the purpose of the evidence is to . . . vary . . . the plain, unambiguous terms . . . expressed in a contract.”); Western States Land & Cattle Co. v. Lexington Ins. Co., 459 N.W.2d 429, 434 (S.D. 1990) (“[O]bligations created under course of dealing and usage of trade are subordinate to any terms of an express agreement with which the parties’ conduct or a trade usage disagree and . . . express terms of the contracts control in the face of inconsistency with any alleged custom and practice.”); Standard Oil Co. v. Petroleum Products Storage Co., 44 S.W.2d 317, 319 (Tenn. 1931) (“Usage may be resorted to, in order to make definite what is uncertain, clear up what is doubtful, or annex incidents, but not to vary or contradict the terms of the contract.”); Nzomo v. Vermont State Colleges, 385 A.2d 1099, 1101 (Vt. 1978) (“Before a modification based on custom or usage can be established, it must appear that, first, there is sufficient ambiguity in the contract to require resort to extraneous circumstances such as custom or usage[.]”); In re Joseph G., 589 S.E.2d 507, 512 (W. Va. 2003) (“Evidence of usage or custom may be considered in the construction of language of a written instrument which is uncertain or ambiguous but may not be considered to alter the legal effect of or to engraft stipulations upon language which is clear and unambiguous.”).

                [v] Graham v. Rockman, 504 P.2d 1351, 1357 (Alas. 1972); George v. Automobile Club of Southern California, 135 Cal. Rptr. 3d 480, 489 (Cal. App. 2011) (“[E]xtrinsic evidence relevant to interpretation can no longer be barred simply because of a judicial determination that a writing appears to have only one interpretation. Parol evidence is now admissible to show mutually shared meanings of words used irrespective of their ordinary meaning. Most importantly, parol evidence of custom and usage is similarly admissible to interpret the written words.”); Benham v. Pryke, 744 P.2d 67, 72 (Colo. 1987) (“Contracts must be interpreted in light of the intentions of the contracting parties, proven in some cases by the customary practices in the industry[.]”); Urbandale Best, LLC v. R & R Realty Group, LLC, 863 N.W.2d 35, 51-52 (Iowa App. 2015) (“Because meaning can almost never be plain except in a context, we determine the meaning of contract provisions in the light of all relevant evidence, including the situation and relations of the parties, their prior course of dealing, and usages of the trade.”); Davis v. Key Gas Corp., 124 P.3d 96, 103-104 (Kan. App. 2005) (“The proper office of trade usage or custom is to explain technical terms in contracts to which peculiar meanings attach; to make certain that which is indefinite, ambiguous or obscure; to supply necessary matters upon which the contract itself is silent; and generally to elucidate the intention of the parties when the meaning of the contract cannot be clearly ascertained from the language employed.”); 8621 Ltd. P’ship v. LDG, Inc., 900 A.2d 259, 269, (Md. App. 2006) (“[W]here trade custom or usage attaches a special meaning to certain words or terms used in any particular trade or business, it is competent for the parties to a contract in which such words and terms are used to show the peculiar meaning of them in the business or trade to which the contract relates, not for the purpose of altering, adding to, or contradicting the contract, but for the purpose of elucidating the language used as a means of enabling the court to interpret the contract language according to the intention of the parties.”); Somerset Sav. Bank v. Chicago Title Ins. Co., 649 N.E.2d 1123, 1127 (Mass. 1995) (“[P]ertinent custom and usage are, by implication, incorporated into a policy and are admissible to aid in policy interpretation, not as tending to contradict or vary a contract, but on the theory that usage forms part of the contract.”); Apple Valley Red-E-Mix, Inc. v. Mills-Winfield Engineering Sales, Inc., 436 N.W.2d 121, 124 (Minn. App. 1989) (“The test for the admissibility of parol evidence for custom and trade is not whether a term is ambiguous, but rather, whether the proffered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.”); Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 164 P.3d 851, 866 (Mont. 2007) (“‘Objective’ evidence, on the other hand, is evidence of ambiguity that can be supplied by disinterested third parties, such as custom or usage of the trade. This kind of evidence is admissible because the ability of one of the contracting parties to fabricate such evidence is limited.”); Galardi v. Naples Polaris, LLC, 301 P.3d 364, 367 (Nev. 2013) (“Ambiguity is not required before evidence of trade usage . . . can be used to ascertain” or illuminate contract terms.”); Conway v. 287 Corporate Ctr. Associates, 901 A.2d 341, 346-347 (N.J. 2006)  (“Evidence of the circumstances is always admissible in aid of the interpretation of an integrated agreement. This is so even when the contract on its face is free from ambiguity. . . . Such evidence may include consideration of the . . . custom, usage, and the interpretation placed on the disputed provision by the parties’ conduct.”); RME Mgmt., LLC v. Chapel H.O.M. Assocs., LLC, 795 S.E.2d 641, 645 (N.C. App. 2017) (“When the language of a contract is plain and unambiguous then construction of the agreement is a matter of law for the court. In such a case, the court may not ignore or delete any of [the contract’s] provisions, nor insert words into it, but must construe the contract as written, in the light of the undisputed evidence as to the custom, usage, and meaning of its terms.”); Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d 1189, 1193 (Pa. 2001) (“There is no requirement that an ambiguity be shown before usage can be shown, and no prohibition against showing that language or conduct have a different meaning in the light of usage from the meaning they might have apart from the usage.”); R. B. Gage Mfg. Co. v. Woodward, 23 A. 16, 18 (R.I. 1891) (“[T]he general rule on the subject of the admission of parol evidence to explain, by custom and usage, the meaning of the parties is, that if the words used in the contract be technical, or local, or generic, or indefinite, or equivocal, or by proof of extrinsic circumstance, parol evidence is admissible to explain by usage their meaning in the given case. If there be no such ingredient of uncertainty, then the evidence is not admissible[.]”); Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 774 (Tex. App. 2015) (“[A]lthough evidence of custom and trade usage may not be used to contradict an express term, it is admissible to explain, supplement, or qualify a term or an agreement.”); Craig Food Indus. v. Weihing, 746 P.2d 279, 283 (Utah App. 1987) (“Trade usage or custom is permissible to explain technical terms in contracts to which particular meanings attach; to make certain that which is indefinite, ambiguous or obscure; to supply necessary matters upon which the contract itself is silent; and generally to elucidate the intention of the parties when the meaning of the contract cannot be clearly ascertained from the language.”); Doswell Ptnr v. Va. Elec. & Power Co., 468 S.E.2d 84, 90 (Va. 1996) (“Evidence that contract phrases or terms have acquired, by custom in the locality, or by usage of the trade, a peculiar meaning not attached to them in their ordinary use is admissible even though the phrases or terms themselves are unambiguous.”); Stender v. Twin City Foods, 510 P.2d 221, 225 (Wash. 1973) (“Once a contract is established, usage and custom are admissible into evidence to explain the terms of the contract. And, parol evidence is admissible to establish a trade usage even though words in their ordinary or legal meaning are unambiguous.”); North Gate Corp. v. National Food Stores, Inc., 140 N.W.2d 744, 747 (Wis. 1966) (“Contract terms being construed are to be considered in context. Words used in a contract are generally given their plain or ordinary meaning but . . . technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless the context of the contract or an applicable custom or usage clearly indicates that a different meaning was intended.”); M&M Auto Outlet v. Hill Inv. Corp., 230 P.3d 1099, 1107 (Wyo. 2010) (“Parol evidence is admissible to establish the trade usage, and that is true even though the words are in their ordinary or legal meaning entirely unambiguous, since, by reason of the usage, the words are used by the parties in a different sense.”).

                [vi] See Amy R. Paulus, Restatement Of The Law Of Liability Insurance Makes Its Mark Prior To Approval (Feb. 20, 2018), https://www.clausen.com/restatement-of-the-law-of-liability-insurance-makes-its-mark-prior-to-approval/ (“In a dramatic departure from the historic purpose of a Restatement, the Restatement of Liability Insurance Law is largely an advocacy piece, unabashedly promoted by its lead authors as a tool to change existing law to favor policyholders.”).

                [vii] Justice Scalia stated, in part:

I write separately to note that modern Restatements . . . are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. . . . Restatement sections [that constitute a “novel extension” of the law and find little if any support in case law] should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

135 S. Ct. at 1064 (internal citations omitted).

[viii] See Nicholas Maltinano, Ohio Lawmakers Send First-Of-Its-Kind Rejection to Powerful Legal Group (Aug. 2, 2018), https://www.forbes.com/sites/legalnewsline/2018/08/02/ohio-lawmakers-send-first-of-its-kind-rejection-to-powerful-legal-group/#46f0940eaf1d