Definition of a crime relating to insurance policies and penalty improvements

In a previous post, we discussed corpus linguistics, an emerging tool in statutory and constitutional interpretation. It seems that the corpus linguistics bug is spreading, both in this Circuit and in other circuits. Two recent cases serve as a reminder that the Sixth Circuit is both a thought leader in the analysis and use of this new variant of legal analysis, and an increasingly powerful vector of transmission.

Consider Fulkerson vs. UNUM Life Ins. Co. of the Am., an opinion of the Sixth Circuit issued a week ago. No. 21-3367, 2022 US App. LEXIS 15363 (6th Cir. 3 June 2022). In Fulkersona panel of judges made up of Chief Justice Sutton and Judges Siler and Readler assessed whether reckless driving was a “crime” within the meaning of the crime exclusion from an insurance policy. Id. a * 4. Judge Reader wrote the opinion. He concluded that reckless driving is a crime for the purposes of the insurance policy by looking at the dictionaries and “tapestry of state laws” that govern the behaviors in question. Id. a * 5-8. Following a belt and brace approach, Judge Readler also used body linguistics, “a useful tool for evaluating common use” to support his conclusion that “[t]The contemporary common use of the term ‘reckless driving’ ”“ fits into the ordinary meaning of ‘crime’ ”. Id. at 8. As Judge Readler noted, “[a]Although most commonly used in constitutional and statutory interpretative fields, these resources appear to have the same strength in many contractual contexts as well. Id. a * 9 (quoting Stephen C. Mouritsen, Contract interpretation with Corpus Linguistics, 94 Washington L. Rev. 1337, 1341 (2019)). Judge Readler then set forth the results of his analysis of the Corpus of Contemporary American English for the term “reckless driving” during the relevant time period. Id. a * 10-13. “Significantly, the vast majority report cases where some kind of prosecution has occurred, where individuals have been ‘charged’, ‘convicted’ and / or ‘convicted of reckless driving’ and others’ explicitly refer[ed] to “reckless driving” as a crime[.]” Id.

Some key points:

  • Judge Readler’s analysis is consistent with our point in our latest post: “The linguistics of the body is not a silver bullet”. And, as Judge Thapar observed, “the linguistics of bodies is a tool. . . but not the entire toolbox. ” Wilson v Safelite Grp., Inc., 930 F.3d 429, 441 (6th cir. 2019) (Thapar, J., concordant). If invoked, it will likely be used as evidence that complements other more common modes of interpretation.
  • The composition of this panel also shows the increased appetite, or at least the lack of aversion, for the analyzes of corpus linguistics in this Circuit. Previously, Judges Thapar, Readler, and Griffin wrote or joined opinions based, in part, on body linguistics. See United States versus Woodson960 F.3d 852, 855 (6th cir. 2020) (6th cir. 2020) (Judges Griffin and Thapar join an opinion in which Judge Readler invoked corpus linguistics); Wilson v Safelite Grp., Inc., 930 F.3d to 438 (Thapar, J., competitor) (recalling the linguistics of the body in the statutory analysis). Now we can add Chief Judge Sutton and Judge Siler to this list. As a reminder, Judge Stranch wrote a lengthy agreement on his opinion in Wilson vs Safelight expressing his concerns about the use of body linguistics. Id. to 445-48 (Stranch, J., competitor).
  • Before Fulkerson, body linguistics was typically used in constitutional and statutory contexts. From what we can tell, this is the first time a federal court has applied body linguistics to a private contract. Body linguistics has officially entered the contract arena, making understanding this tool even more indispensable everything lawyers.
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So, consider United States versus Rice, issued yesterday an opinion of the Fourth Circuit. No. 19-4489, 2022 US App. LEXIS 15886 (4th Cir. 9 June 2022). The Fourth Circuit was “asked to decide whether the crime of assault that resulted in physical injury from strangulation in North Carolina is a ‘crime of violence'” for the purpose of enforcing conviction under US sentencing guidelines. Id. a * 1-3. We will not delve into this case, but we note that they concluded that strangulation was a crime of violence. It is noteworthy, however, that Judge Quattlebaum, writing in favor of the majority, quoted Judge Thapar’s concordant opinion in Wilson v. Safelight for the proposition that, “[a]although relatively new, body linguistics is gaining ground as an interpretative tool ”. Id. at 10. The jurisprudence of Judge Thapar and the continued use of body linguistics by this Circuit in difficult cases will probably prompt other circuits to consider conducting linguistic analyzes of the body as well. Furthermore, this is the first case in which an analysis of corpus linguistics has been presented in a fourth circuit opinion, albeit in a footnote, to complement the court’s analysis.

The corpus linguistics bug is spreading across our Circuit and spreading to others. We advise you to find out about this statutory, constitutional and now contractual interpretation tool and we will keep you updated on any interesting news.


This post was written by Alon Farahan

© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XII, Issue 162

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