The Fruit Salad: Using Ejusdem Generis in Tennessee Insurance Policy Interpretation

The local farmers’ market hosts an annual fruit salad competition. The rules of this completion require that only salads comprised completely of fruit may enter, specifically stating that “only apples, oranges, melons, grapes, cherries, and other fruits may be used.” A young, excited chef wishes to enter with her tomato and cucumber salad, but will she be able to? Using the ejusdem generis rule of construction, she can!

Ejusdem generis is one of those Latin terms common throughout the practice of law that sounds incredibly complicated but has a relatively simple meaning. Ejusdem generis means “of the same kind, class, or nature,”¹ and is based on Latin for “the expression of one thing is the exclusion of another.”² This principle is traditionally used for the interpretation of loosely written statutes, but ejusdem generis has been deemed by the Tennessee Supreme Court as equally applicable as to other instruments of writing,³ including a contract.

The use of ejusdem generis becomes appropriate in determining what falls into the generic, catch all phrase that follows a list of specific terms. This is illustrated in the above fruit salad competition rule; “apples, oranges, melons, grapes, cherries” represent the specific terms while the phrase “other fruits may be used” is the generic catch all phrase. In Tennessee, when a contract or policy contains both general and specific terms relating to the same thing, the specific terms control,⁴ meaning though a honeycrisp apple satisfies both the specific “apple” term and the general phrase, the specific term “apple” controls. However, where uncertainty is present between the generic phrase and the specific terms, the specific terms will usually qualify the generic phrase.⁵ This means that the specific fruits listed provide the context clues needed to determine whether the authors of the rule intended for tomatoes and cucumbers to be included under “other fruits.” Here is where the chef makes her argument for the inclusion of her recipe.

As opposed to competition rules, insurance policies are often a complicated mess of coverages, exclusions, and limitations all included in an assortment of various forms. These coverages and limitations are written as lists of particularized items with the last item as a generalized description. This generalized description frequently takes the form of the category preceded by the word “similar.”

The largest implication of ejusdem generis in insurance policies is under Coverage B – Other Structures, where only those “structures on the ‘resident premises’ set apart from the dwelling by a clear space” are covered. Policies clarify this sentence by stating that “[t]his includes structures connected to the dwelling by only a fence, utility line, or similar connection.” In When Words Collide, the author, Bill Wilson, uses this provision in asking whether a detached garage is covered under Coverage A – Dwelling or Coverage B – Other structures based on the terms of the contract.⁶ He concludes that the stronger argument is that a connecting roof is not of the same kind, class, or nature as a fence or utility line, which means that the claim falls under Coverage A.⁷ But what if the connection is something less than a roof, like an extension cord? Or a string of lights? Or a pergola that runs along a paved path? Does a claim under these facts fall under Coverage B or are these situations even covered? This is where the argument is made based on the context clues provided by the specific terms in the policy.

Of interesting note, ejusdem generis has not been adjudicated in Tennessee appellate court as applied to homeowner’s or commercial property insurance. Any argument before an appellate court as to whether an extension cord or string of lights is of the same kind, class, or nature as a fence or utility line, would be a first. Hopefully such an argument is as successful as the chef’s attempt for the inclusion of her tomato and cucumber salad based on the settled debate over the appropriate food group of a tomato.⁸
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¹ Bill Wilson, When Words Collide: Resolving Insurance Coverage and Claims Disputes 114 (2018).
² Cellco Partnership d/b/a Verizon Wireless, et al. v. Shelby County, Tennessee, et al., 172 S.W.3d 574, 597 (Tenn. App. Ct. 2005), quoting Shipley v. Sofco Erectors, Inc., Nos. 743 and 790, 1988 WL 48618, at *6 (Tenn. Ct. App. May 16, 1988) (citations omitted).
³ City of Knoxville v. Brown, 260 S.W.2d 264, 268 (Tenn. 1953).
⁴ Cocke County Bd. v. Newport Utilities Bd., 690 S.W.2d 231, 237 (Tenn. 1985) (citing 17 Am.Jur.2d Contracts § 270 (1964)).
⁵ Id.
⁶ When Words Collide, 116.
⁷ Id.
⁸ Mark Abadi, Here’s Why a Tomato Is Actually Both a Fruit and Vegetable, Science Alert (May 29, 2018),
https://www.sciencealert.com/here-s-why-a-tomato-is-actually-both-a-fruit-and-vegetable.