the doctrine at all.69
The scholarly debate produced limited consensus on how best to define
and apply the doctrine.70 The twenty-first century has seen only a
smattering of scholarly contributions that even relate to the idea of
reasonable expectations.71 One possible reason for the continuing unease
may be that scholars have not found consensus on a principle that can apply
to all lines of insurance without disrupting the predictability of the meaning
of contract terms. Universality, while desirable, is not a necessary quality
for a principle of interpretation or construction. Some principles may fit
only certain types of contracts. It is at least worth examining whether the
doctrine does fit one particular context – health insurance policies that must
cover the EHB required by the ACA.
IV. DOES THE DOCTRINE OF REASONABLE EXPECTATIONS SUIT
EX-POST INTERPRETATIONS OF ESSENTIAL HEALTH BENEFITS?
Commercial health insurance policies occupy a somewhat unusual
space among lines of insurance.72 They cross the boundary between
conventional insurance and service contracts, because they cover both
fortuitous losses, like accidental injuries and heart attacks, and predictable
“losses,” such as preventive services.73 The ACA has pushed health
insurance even farther away from the conventional insurance model and
toward becoming a method of financing health care.74 Conventional rules
of contract construction may be inadequate to interpret the terms of these
new ACA health plans in light of the ACA’s requirement for coverage of
69. See Randall, supra note 6, at 109-110 (arguing that some courts apply contra
proferentem, while characterizing it as a reasonable expectations approach).
70. See Fischer, supra note 49, at 153 (noting the doctrine’s “profound influence both in
our conception of what insurance law is and how insurance law is implemented in the
courts,” despite its adoption by only a minority of states).
71. See, e.g., Arthur J. Park, What to Reasonably Expect in the Coming Years from the
Reasonable Expectations of the Insured Doctrine, 49 Willamette L. Rev. 165 (2012); W.
David Slawson, Contractual Discretionary Power: A Law to Prevent Deceptive Contracting
by Standard Form, 2006 Mich. St. L. Rev. 853; David Horton, Flipping the Script: Contra
Proferentem and Standard Form Contracts, 80 U. Colo. L. Rev. 431 (2009); Dudi Schwartz,
Interpretation and Disclosure in Insurance Contracts, 21 Loy. Consumer L. Rev. 105
(2008); Randall, supra note 6; Wayne R. Barnes, Toward a Fairer Model of Consumer
Assent to Standard Form Contracts: In Defense of Restatement Subsection 211(3), 82 Wash.
L. Rev. 227 (2007); Daniel D. Barnhizer, Inequality of Bargaining Power, 76 U. Colo. L.
Rev. 139 (2005).
72. See Mariner, supra note 10, at 441-47 (discussing characteristics of health insurance
before the ACA took effect).
73. See id. at 438.
74. See Mariner, supra note 10, at 196-201 (noting that the ACA eliminated most
insurance techniques of risk selection and underwriting for health plans subject to ACA