Insurance practitioners know that policy language matters. Insurance coverage advocates are also well aware that the application of the canons of construction can significantly affect contested coverage matters. These two considerations came together in a recent Fifth Circuit opinion, in which the placement of a single word — the word “the” — proved to be outcome determinative. The appellate court’s decision so clearly presents these fundamental policy interpretation issues, it should be mandatory reading for anyone involved in insurance policy wording issues. A copy of the Fifth Circuit’s opinion can be found here. A July 10, 2025 LinkedIn post about the decision by Geoffrey Fehling of the Hunton Andrews Kurth law firm can be found here.Continue Reading Does the Word “The” Change an Exclusion’s Meaning?
In a recent case in the Fifth Circuit, a retail merchant sought to establish that its D&O insurer was required to provide a defense to a data breach-related claim that had been brought against the merchant. The appellate court held that the trial court erred in granting the insurer’s motion for judgment on the pleadings and ruling that the policy’s contractual liability exclusion precluded coverage. The ruling, which suggests at least the possibility of coverage under the D&O policy for at least some of the claims against the merchant, raises a number of important issues, as discussed below. The Fifth Circuit’s June 25, 2018 opinion in the case can be found