fraud, misrepresentation, or estoppel is not likely to apply.99 The insurer is
also unlikely to have made any warranty with respect to coverage of general
The rule that ambiguities in the policy should be construed against the
drafter – the insurer – might seem to have a place here.101 However, EHB
categories are not so much ambiguous as they are vague. There is a
difference between ambiguity and vagueness.102 Ambiguous terms are
subject to more than one objectively reasonable interpretation.103 Under
the general contract rule, ambiguities are construed in favor of the
policyholder’s expectations, especially where the policyholder was not in a
position to know what the insurer meant.104 Strict application of such a
rule to permit coverage of whatever a policyholder wants, however, can put
insurers at an unfair disadvantage if the policyholder’s expectation is
unreasonable.105 Moreover, such a strict application would not necessarily
serve the purpose of an ACA plan.106
The weak form of the reasonable expectations doctrine ameliorates this
drawback somewhat by limiting coverage to what would be reasonable for
policyholders to expect.107 However, even the weak form does not address
99. See generally Eugene R. Anderson & Nadia V. Holober, Preventing Inconsistencies
in Litigation with a Spotlight on Insurance Coverage Litigation: The Doctrines of Judicial
Estoppel, Equitable Estoppel, Quasi-Estoppel, Collateral Estoppel, “MEND the Hold,”
“FRAUD on the Court” and Judicial and Evidentiary Admissions, 4 Conn. Ins. L.J. 589
100. Exceptions might be found where the insurer and insured have an ongoing
relationship, such as coverage of specific services for a chronic disease. See Stempel,
Swisher, & Knutsen, supra note 8, at 129; see also Jay M. Feinman, Relational Contract and
Default Rules, 3 S. Cal. Interdisc. L.J. 43, 54–55 (1993); see generally John Aloysius Cogan
Jr., Readability, Contracts of Recurring Use, and the Problem of Ex Post Judicial
Governance of Health Insurance Policies, 15 Roger Williams U. L. Rev. 93 (2010); see
generally Ian R. Macneil, Contracts: Adjustment of Long-Term Economic Relations Under
Classical, Neoclassical, and Relational Contract Law, 72 Nw. U. L. Rev. 854 (1978).
101. See Stempel, supra note 45, at 206; see also Rahdert, Revisited, supra 45, at 116–
18; see also Abraham, Policy Interpretation, supra note 7, at 531 (“[ I]nsurance policy
provisions are in a sense always ambiguous.”); see also Eyal Zamir, The Inverted Hierarchy
of Contract Interpretation and Supplementation, 97 Colum. L. Rev. 1710, 1712 (1997) (“No
contract can fully and unequivocally address every question that may arise regarding its
performance or nonperformance.”).
102. See Farnsworth, Contracts, supra note 51, at § 7.8 (distinguishing vagueness from
ambiguity in contracts).
103. See Stempel Swisher & Knutsen, supra note 8, at 131.
104. See Restatement (Second) of Contracts § 201 (1981).
105. See Michael B. Rappaport, The Ambiguity Rule and Insurance Law: Why
Insurance Contracts Should Not Be Construed against the Drafter, 30 Ga. L. Rev. 171, 189–
91 (1995); but see Horton, supra note 71, at 473 (arguing that strict liability contra
proferentem “promotes uniformity of meaning in standard-form contracts”).
106. See infra Part V.
107. Most courts construe the rule to permit coverage only where coverage is an