There are limits, though vast, to the degree to which words, even in the hands of the most careful draftsperson, can accurately capture concepts, particularly when those concepts concern future events and possibilities. There are likewise limits, though vast, to the degree to which people can anticipate future events. I have written more than once about the impact of these limits of both language and foresight on insurance policies. Because of these fundamental realities, no matter how much effort is put into drafting an insurance policy and anticipating the scope of potential exposures, there will inevitably be losses that either were never anticipated when the policy language was written or that, even if anticipated, were not accurately captured within the chosen wording. It is this phenomenon that constitutes the source of much insurance coverage litigation: either an event occurs that neither the policyholder nor the insurer anticipated and included within the policy language, or one party or the other thinks it bought coverage for or excluded a particular future possibility, only to find out later that the words they chose to use didn’t capture it.
This is true for plan documents, LTD policies, and essentially any contract – words and anticipation aren’t always enough to create a document that fully provides for everything that might happen in the future, leaving the parties to dispute how the document applies when a novel event eventually occurs. This has never been so evident as in this new decision from the First Circuit Court of Appeals, in which the issue arose as to whether the future risk of a relapse by an anesthesiologist who had been diagnosed with addiction rendered the physician disabled for purposes of an LTD policy. The case itself is fascinating, as is, to some extent, the question at its heart: if the currently disabling event has passed, but the participant may become again disabled, is the participant still disabled for purposes of the policy? The question itself sounds like a Zen koan and, phrased as I just have, almost as unanswerable. Almost, but not quite, because the First Circuit found an answer, rooted in the limitations on language and foresight I noted above. The Court found that the risk of relapse rendered the participant still disabled, because the LTD policy did not specifically exclude this risk. So there you have it: if you don’t want to cover the currently rehabilitated participant whose risk of relapse means he can’t go back to work, you better write that down somewhere in the plan or the policy.