Liability insurance is, by definition, a product that provides financial protection when things don’t turn out as planned. Most of the time when this occurs it’s simply a case of bad luck or because, well, stuff just happens. Essentially, some action was taken and the outcome was one that nobody could have seen coming.
But there are other times when liability claims don’t arise simply because stuff just happens. Instead, the claims are the result of peoples’ actions that were so ill-conceived or Tom foolhardy that a liability claim was as predictable as day following night. When you read liability coverage cases you are bound to come across some of these. They are the cases where all you can do is shake your head in disbelief and ask yourself – Wow, did he REALLY do that? You then walk over to a colleague and say you GOTTA see this. Eventually the incredulous behavior leads to a lawsuit, which leads to an insurance claim, which leads to a coverage dispute, which leads to a reported decision, which leads to the final stage of this insurance circle of life -- an appearance in “Coverage For Dummies.”
I am pleased to present my 7th Annual “Coverage For Dummies” -- a review of the best cases, from the year just-concluded, that demonstrate attempts to secure insurance coverage for the frailty and imperfection of the human brain. This year’s installment follows, and it includes a treat – the all-time best “Dummies” case. The following cases are in no particular order.
Homesite Ins. Co. v. Stapleton (E.D. Va. Oct. 3, 2014): No coverage owed to insured for shooting a friend/acquaintance in the buttocks with a .40 caliber semiautomatic handgun. In the insured’s defense, he believed it to be a BB gun and “thought it would be funny to shoot [the person] with a BB gun in the buttocks while [the person] was passed out on the bed in the upstairs guest bedroom.” Coverage precluded based on no occurrence and expected or intended. No doubt that is a fine quality “Dummies” case. But, my friends, it’s nothing compared to what’s coming soon.
American National Prop. & Cas. Cos. v. Hearn (Pa. Super. Ct. June 9, 2014): No coverage owed to insured (seemingly a teenager) for giving his friend a “ball tap” – a forearm to the testicles -- a common way amongst their group of friends to let one know that he is doing something stupid. Court held that expected or intended exclusion precluded coverage, despite that the ball-tapper only meant to cause his friend five seconds of pain -- and not the need for emergency surgery and possible permanent infertility. These types of accident cases are often tough nuts to crack.
Springer v. Erie Ins. Exchange (Md. Ct. App. June 24, 2014): “Business pursuit” exclusion did not preclude a defense to insured for using websites jgw-sucks.com and jgwentworth-scam.com to attempt to lure customers away from J.G. Wentworth, a purchaser of structured settlements. Get ready. Wentworth sued.
Apparently these websites had some impact. I went looking for them. Hey, if you are dumb enough to create them then you may be dumb enough to keep them up even after you get sued. They weren’t there. But I did come across this. J.G. Wentworth himself set up www.jgwentworthscam.com, with this message on the homepage: “If other companies can’t beat J.G. Wentworth on price, service, speed and getting more money for your payments, then what do they do? They resort to name calling and deception. That’s probably why you are on this site right now.” Actually, J.G., I’m on the site as part of writing the 7th Annual “Coverage for Dummies.” But no doubt that’s why others visit the site. Stay tuned for round two -- infringement litigation over jgwentworth-scam.com vs. jgwentworthscam.com.
Metropolitan Prop. & Cas. Ins. Co. (W.D. Wash. July 2, 2014): No coverage owed to insured for biting off a portion of someone’s nose in a bar fight. What started this, you wonder? One woman pretended “to borrow” a cigarette out of another woman’s purse. That’s why the box says right on it that smoking can be hazardous to your health.
Auto Club Property Casualty Ins. Co. v. B.T. (W.D. Ky. June 29, 2014): No coverage owed to dad for this father of the year performance. His 8 year old son was playing with friends and wanted to get some sparklers out of the car. Dad used his keyless remote to open the door but did not follow his son to the car – nor check up on him for the next few hours. It turns out that his son didn’t retrieve just sparklers from the car (as if that would have been OK) but bottle rockets too. You can see where this is going. One of the kids lit a bottle rocket that hit another in the eye. Coverage for dad denied based on the criminal act exclusion. Nobody will confuse this guy for Ward Cleaver.
Drew v. Church Mutual Ins. Co. (D.N.J. May 29, 2014): No coverage owed to priest, based on policy timing issues, for counseling a parishioner about marriage troubles -- and telling him not to try to save the marriage – when, at such time, the priest was having an intimate relationship with the parishioner’s wife. That’s not all. Then the priest’s supervisors directed him to leave the country to avoid suit. No comment. Speechless.
And now, ladies and gentlemen, prepare yourself for the best “Coverage For Dummies” case I’ve seen in seven years of writing this very important article.
Davler v. Arch Ins. Co. (Cal. Ct. App. Aug. 25, 2014): No coverage owed to a cosmetics manufacturer when a (female) manager, determined to figure out who left a sanitary napkin in the bathroom and blood around the toilet seat, forced female employees to pull down their underwear so that another (female) employee could inspect whether they were wearing a sanitary napkin. Employment related practices exclusion precluded coverage.
This may be the last year for “Coverage For Dummies” because there will never be another one this good. Period.
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