X or Y or both

Having determined that Hess's 1996 employment contract is properly a part of the administrative record the district court was entitled to consider, we must next decide whether Hartford could reasonably have determined that Hess's benefits as of April 19, 1996, should have been based only on her 1995 draw amount. Like the district court, we cannot read the contract that way. Hess's 1996 contract clearly states that the draw system was to be phased out as of April 5. The contract also specifies that her benefits, including long-term disability benefits, would be calculated based on her "base salary and/or draw." (We note in passing that the phrase "and/or" has its critics. Bryan A. Garner reports in A Dictionary of Modern Legal Usage 56 (2d ed. 1995), that "and/or has been vilified for most of its life-- and rightly so." He goes on to say, however, that the expression, while "undeniably clumsy, does have a specific meaning (x and/or y = x or y or both)." Id.) Here, this would mean that Hess could have her benefits calculated on the basis of her base salary, or her draw, or both. In the context of Fleet's transition away from a draw system, the only reasonable interpretation of this provision was that the benefits would be based on the draw while it was in effect and on the base salary thereafter. As of April 5, Hess was thus contractually entitled to a benefits package based on her base salary--that is, based on the average of her previous two years' commissions. The fact that Fleet may have breached the contract (or been slow in implementing its details) by failing to move from the draw system to the base salary system until June 1 does not change the package of compensation and benefits to which Hess was contractually entitled. Nor could the fact that Fleet failed to inform Hartford about the date the change-over was to have occurred affect Hess's benefit amount. The Hartford policy states that "[i]f [Fleet] gives The Hartford any incorrect information, the relevant facts will be determined" to establish the correct benefit amount. Once informed by Hess's attorney that Hess believed the information Fleet provided Hartford was incorrect, it was incumbent on the examiner to refer to Hess's employment contract to determine her actual regular monthly pay. Had he done so, he would have seen that Hess became entitled to the higher level of benefits on April 5, two weeks before her disability. The district court therefore did not err when it concluded that Hartford's failure to consider the contract was arbitrary and capricious.