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People make mistakes. Even drafters of insurance policies make them. This is not surprising because the preparation of insurance policies and endorsements often involves various steps-drafting, revising, and editing-each of which provides an opportunity for a scrivener's error. Generally speaking, a scrivener's error is an unintentional mistake in the drafting of a contract.1 Examples include typing an incorrect word, number, or letter, or omitting a word or words or even an entire provision of the contract.
A scrivener's error can occur in an insurer's standard policy form.2 But more often, scrivener's errors occur in limits of liability, location schedules, and endorsements that are specially prepared for a particular insured.3 As examples, a policy drafter may include an incorrect limit of liability, fail to exclude a particular location that was not intended to be covered, or inadvertently omit a policy exclusion. Courts have recognized that scrivener's errors "are difficult to prevent" and, more importantly, that "no useful societal purpose is served by enforcing . . . mistaken termfs]."4
Accordingly, two distinct theories for correcting scrivener's errors in insurance policies have emerged. First, if the scrivener's error is apparent on the face of the policy, a court may correct that error by applying the general rules of contract interpretation. Second, if a scrivener's error is not apparent on the face of the policy, a court may reform the contract to correct the error if the error is a mutual mistake.
Correcting Obvious Scrivener's Errors
Some scrivener's errors are apparent to an ordinary reader on the face of the insurance policy. Courts have corrected these types of errors by applying the general rules of insurance contract interpretation. Principal among these rules is that the court's goal is to effectuate the parties' mutual intent.5 To that end, courts consider the insurance policy as a whole.6 While courts may not rewrite a contract or add terms not included by the parties, correcting an obvious scrivener's error presents an exception to this rule.7
Mendota Insurance Co. v. Ware8 is a recent illustration of these principles. There, the parties disputed the amount of an insurance policy's limit of liability for bodily injury coverage. The policy provided coverage for "bodily injury" (Coverage A) and "property damage" (Coverage B) for which any insured...