ARTICLE: Unmet Expectations: Undue Restriction of the Reasonable Expectations Approach and the Misleading Mythology of Judicial Role Skip over navigation
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Copyright (c) 1998 Connecticut Insurance Law Journal Association
Connecticut Insurance Law Journal

ARTICLE: Unmet Expectations: Undue Restriction of the Reasonable Expectations Approach and the Misleading Mythology of Judicial Role

Fall, 1998

5 Conn. Ins. L.J. 181


Jeffrey W. Stempel *



In my contribution to this Symposium I want to try to site the reasonable expectations doctrine on the jurisprudential landscape generally, to revisit the emergence of the concept, and to assess the legal profession's reaction to reasonable expectations. By doing so, I hope to explain to some degree the doctrine's seemingly sudden emergence, attraction to academics but resistance from elements of bench and bar, early growth, subsequent retreat, current status, and continuing controversy.

In brief and oversimplified peroration, my thesis is that the reasonable expectations concept, although long a tacit, tidal pull on insurance coverage jurisprudence, has never really been fully utilized as an analytical tool and has not yet been fully deployed in a self-consciously thoughtful and comprehensive manner.

In part, this unfortunate underuse of reasonable expectations thinking resulted from the manner in which the doctrine burst on the scene, with emphasis on the reasonable expectations concept as something creating rights "at variance" with the language of the insurance policy. Although the reasonable expectations approach of course does this in a relatively small segment of the case law, it has far more potential impact as a tool for addressing uncertain policy language and application, potential that has been underutilized due to overfixation on the role of reasonable expectations in overcoming clearly worded policy language and the attendant jurisprudential debate this has engendered.

A complete and open embrace of the pure version of the doctrine as enunciated in Judge Keeton's famous article -- which expressly provides ...
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