Phoenix Control System, Inc. v. Insurance Co. of North America ( 1990 )

FELDMAN, Vice Chief Justice,

specially concurring.

I concur in the court’s opinion and in its conclusions. I write separately only because I believe the use of the doctrine of the last antecedent gives us no aid in interpreting the policy. We have recognized the limitations of this canon of construction when interpreting legislative acts. See Town of S. Tucson v. Board of Supervisors, 52 Ariz. 575, 584, 84 P.2d 581, 585 (1938) (clear intent of the legislature takes precedence as a canon of construction over all grammatical rules, particularly the doctrine of the last antecedent). I see no benefit and much harm in using the doctrine of the last antecedent in construing contracts. Reliance on such arcane, judicially adopted grammatical rules does not help us reach the intentions of the parties. Surely, even if the parties had bargained for the boilerplate language in this policy— something the record does not establish at all — it would be a fiction to pretend they drafted the language mindful that its meaning would be ascertained through use of the doctrine of the last antecedent.

The meaning of the policy is to be determined by the intent of the parties. See State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 257, 782 P.2d 727, 733 (1989); Darner Motors Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 682 P.2d 388 (1984). Where, as here, we deal with a standardized policy and its boilerplate language, the parties had no meeting of the minds and their intentions are not evident. Therefore, Darner requires us to follow the plain meaning of the words of the boilerplate provision, unless we would have reason to believe the party assenting would not have done so if he knew the policy contained the term in question. 140 Ariz. at 391, 682 P.2d at 396 (citing Restatement (Second) of Contracts § 211).

In this case, however, the words have no plain meaning. The clause in question can be reasonably interpreted to have either the meaning advanced by the insured or that advanced by the insurer. In most cases, we should interpret it considering legislative or contract goals, social policy, and examination of the transaction as a whole. Wilson. None of those principles is applicable here because no statute applies and the nature of the transaction may be equally well served by either meaning. What we are left with, in other words, is simply a clause that can be as easily interpreted one way as the other. It is, in short, ambiguous. If ever the rule of ambiguity should apply, it is here, and the clause should be interpreted against the drafter. See Wilson, Darner.

I therefore concur in the court’s interpretation of the clause but not in the reasoning of that portion of the opinion dealing with the last antecedent doctrine.