In coverage litigation, a familiar argument arises when an insurance policy uses two different words: each must mean something distinct from the other.
The logic runs that if both words carry identical meaning, one of them becomes surplusage, violating a basic principle of contract interpretation.
Phrases such as “loss or damage,” “caused by or resulting from,” and “faulty, inadequate or defective” are common examples that trigger this kind of argument in disputes.
However, the surplusage canon is not the decisive interpretive tool that some litigants treat it as, according to established case law.
The United States Supreme Court addressed this directly in Rimini Street, Inc. v. Oracle USA, Inc., cautioning that surplusage is an interpretive clue rather than a trump card.
The Court explained that where one interpretation creates redundancy and another avoids it, that difference “can supply a clue as to the better interpretation,” but “only a clue.”
The Court further noted that “sometimes the better overall reading” of a provision “contains some redundancy,” meaning redundancy alone does not settle a dispute over meaning.
The Sixth Circuit confronted this issue directly in the insurance context in TMW Enterprises, Inc. v. Federal Insurance Co., 619 F.3d 574, decided in 2010.
Applying Michigan contract law, the court examined policy language involving “loss or damage,” “caused by or resulting from,” and “faulty, inadequate or defective” design, specifications, workmanship, repair, construction, and renovation.
The court pointed to legal doublets that any practitioner would recognise, including “arbitrary and capricious” and “aid and abet,” as examples of paired terms that do not impose distinct independent requirements.
It observed that “[t]he effect of a doublet is why no one has invoked the surplusage canon to hold that the term ‘capricious’ imposes some novel requirements not contained in the term ‘arbitrary.'”
Legal doublets have a long history in English legal language, often originating from the blending of Latin, French, and Old English terms into the common law tradition.
Their survival in modern contract and insurance policy drafting can create genuine interpretive difficulty when courts try to assign independent legal significance to each paired word.
Coverage practitioners should treat the surplusage canon as one tool among many rather than a governing rule that automatically determines how paired terms in a policy are read.
Policy interpretation ultimately turns on the governing law of the relevant jurisdiction, the specific wording chosen by the drafter, and the overall structure of the policy as a whole.