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Vol. 12 - Issue 3

April 17, 2023

 

The Chutzpah Argument For Coverage

 

The classic definition of chutzpah is widely known – the kid who kills his parents and then seeks mercy from the court because he is an orphan.  That’s what went through my mind when I read one particular argument for coverage in Niles v. Travelers Home, No. 21-265 (D. Me. March 15, 2023).

At issue was coverage for Jessica Niles, an assignee of Eric Motsenbocker, under a homeowner’s policy, for injuries alleged sustained on account of horrific conduct by Mr. Motsenbocker.  Mostenboker was Niles’s landlord.  He allegedly recorded secret videos of Niles while she was in her bathroom.  He did this by having a “weather station device” mounted to the wall in the bathroom opposite the toilet and shower.  The device contained a video camera that filmed when it detected motion in the bathroom.  He also insisted that Niles have a clear shower curtain, saying that it would allow him to detect the presence of mold.  [FYI, the “weather station device” provided the temperature and humidity in the bathroom.  Is a “device” really needed for that?]

You can see where this is going.  The video camera was discovered, litigation ensued and then coverage litigation was on the table.  The various coverage issues were all of those that you would expect to see in the context of such intentionality. 

But here’s the one issue that got me.  Niles [remember, despite being the victim, she is the one seeking coverage as an assignee] argued that Motsenbocker had no intent to inflict injury because he had intended that his surreptitious recording not be discovered.  Not surprisingly, the court did not buy it:

“[T]his argument misses the point. It is always true in torts of this sort that the victim has discovered the wrong. Here the Court does not need to resolve the philosophical question of whether an undiscovered harm is a harm because to claim insurance coverage, the tort must have been discovered. Thus, when Mr. Motsenbocker secretly recorded Ms. Niles in her intimate moments, he either actually intended or should have reasonably expected that when she discovered the recording, she would have been harmed. The hope not to be caught is different than the certainty that if caught, he would cause harm.”

  

 

 

 

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