From Zeno of Elea to the Washington Nationals, images of racing have ceaselessly troubled Western thought.  But as ancient metaphysics has given way to philosophy of language, the questions we ask ourselves have changed.  In Sonson v. United Services Auto. Ass’n  No. 35890 (Conn. Ct. App. Sept. 16, 2014), an automobile policyholder had to show that a “racing” exclusion did not apply, so he argued that Achilles could never overtake the tortoise if he was not “competing in, or preparing or practicing for, a race.”  The court held, however, that once Achilles dons a fire suit, helmet and boots, and once he takes his car out on a private track, he is racing.  Whether he can win or not is simply beside the point.

Gentlemen, Start Your Dialectic

Charles Sonson bought a 483-horsepower Ferrari F430 Challenge in 2006, and he called USAA to add it to his existing automobile policy.  The car raised red flags, because it was not “street legal”—that is, it lacked the standard safety equipment required for vehicles registered in the United States.  Mr. Sonson was told USAA does not issue policies on race cars, and, according to the insurer’s records, he told the company the car would be registered in Delaware and garaged at his home in Williamsburg, Virginia.  The insurer added the Ferrari to the policy, which excluded coverage for any loss that occurred “inside a facility designed for racing, for the purpose of: a. Competing in; or b. Practicing or preparing for; any prearranged or organized racing or speed contest.

In January 2007, Mr. Sonson took his new toy out for a collision on the Infineon Race Track in Sonoma, California.  The Ferrari was severely damaged, and Mr. Sonson promptly notified his insurer.  After reserving its rights, USAA determined that the Ferrari had never been garaged in Mr. Sonson’s Virginia home, and had never been registered anywhere.  It rescinded the policy on the ground of material misrepresentations in the application.  Mr. Sonson then sued for breach of contract.

At trial, Mr. Sonson denied having fibbed about the Ferrari, claiming the insurer’s computer system had recorded his statements inaccurately.  The court did not find this story credible, and it awarded judgment to the insurer.  As an alternative ground, the court also held that the insurer could properly have denied coverage under the racing exclusion.  Mr. Sonson appealed.

The Road All Runners Come

On appeal, Mr. Sonson admitted the accident had occurred “inside a facility designed for” the sport, but he insisted that, “at the time of the accident he was not competing in, or preparing or practicing for, a race.”  In fact, he told the court he had hung up his gloves:  he had “given up racing.

The issue, then, was whether it is possible to drive “for the purpose of … [c]ompeting in … or … [p]racticing or preparing for  … [a] prearranged or organized racing … contest,” if the driver intends never to participate in an organized racing contest again.  What if the insured intends only to simulate practicing for a race?  Is it still “practicing” if he can never win?

Now, Jacques Derrida’s critique of J.L. Austin famously began when Austin offered to answer this question, albeit about a different activity.  Austin was concerned with the act of making a “performative utterance”— such as making a promise by saying, “I promise to do the dishes.”  Austin said his analysis of that “speech act” excluded the case of a “parasitic” act, such as a promise made “by an actor on the stage, or … introduced in a poem, or spoken in soliloquy.”  An actor’s words might be speech acts, too, but Austin considered them “etiolations of language,” and he felt the rules properly apply only to statements “issued in ordinary circumstances.”  After all, when a character in a play makes a promise, everyone present knows it will not be kept—because the actor who utters the promise doesn’t intend to keep it, and because the character he represents doesn’t really exist.

Derrida attacked this view.  He argued that the Englishman’s position amounted to a “logocentric” delusion—the mistaken belief that a performer can keep the meaning of her own speech acts “tethered” to specific contexts, which include certain assumptions about reality.  Because Zeno contended Achilles could only appear to win the race, he insisted that what Achilles was doing wasn’t racing at all.  Austin continued this tradition, assuming that a fictitious character is incapable of forming the intention that makes his statement a promise.  And it surfaced again in Mr. Sonson’s briefs, which asserted that a man who will never race again is incapable of practicing for a race.

For Derrida, the fact that meaning can emerge in unexpected, “parasitic” conditions represents “its internal and positive condition of possibility.”  Racing emerges from a dynamic interplay of language and social forces.  The racer doesn’t get to decide for himself whether he’s racing or not.

In Sonson, the Appellate Court’s opinion initially suggested it would follow Austin into a consideration of what the parties intended to say, observing that insurance contracts must be construed “so as to effectuate the intention of the parties as expressed therein.”  (The court was applying Virginia law.)  Had it continued along those lines, it might have held for the insurer on the ground that the risk posed by a simulation of practicing for a race is indistinguishable from the risks of actual practice.

The court did rule for the insurer, but in a way that Derrida would approve.  Even if Mr. Sonson felt he was only going through the motions, the court held, his actions still fell within the racing exclusion, because the border between practicing and pretending to practice has been breached.  What counted was that

plaintiff was accompanied by a mechanic and driving coach, was travelling at speeds of approximately seventy miles per hour on curves and ninety miles per hour on straightaways, and was wearing a fire suit, helmet, boots, and possibly gloves.

At the end of the day, USAA was standing in the winner’s circle, and Zeno had been laid to rest.