So far it does not seem that drones have taken over the planet as promised, despite that they supposedly have a million and one uses. My Amazon packages are still delivered to my porch by a two-legged person – with a raucous welcome from the four-legged residents inside.

Nonetheless, predictions about the wide-spread use of drones has led to chatter about the availability of insurance coverage for injury and damage caused by a wayward drone. But it has mostly been limited to talk as there has been a dearth of decisions addressing these actual coverage issues. But those looking for guidance in this area now have one place to look -- the Rhode Island Superior Court’s recent decision in FBEye, Inc. v. Gumshoe Risk Retention Group.

The court in FBEye addressed the availability of coverage, under a commercial general liability policy, for an invasion of privacy caused by a drone that had a video camera attached to it. The coverage decision had its roots in a dispute between neighbors.

Tracy Nelson and Benjamin Marks had been next-door neighbors in East Greenwich, Rhode Island for fifteen years. And that’s about how many words they’d spoken to each other during that time. Marks was very private and a twelve-foot fence surrounded his yard. It was well in violation of the town’s current zoning code but had been grandfathered-in from an earlier time. Nelson often imagined that one day Marks would commit a heinous crime and Nelson would be on television telling the reporter than Marks was a quiet guy who kept to himself.

Nelson had spent 25 years as an FBI agent in Providence. He retired in 2012. But he missed the action. So in 2014 he started FBEye, Inc., a private investigation company. His assignments included such things as looking for dirt on client’s spouses, background checks for people doing on-line dating and assisting attorneys with accident investigations and criminal defense.

In 2017, Nelson purchased a drone and attached a video camera to it. He imagined that it could be useful in certain surveillance situations. Nelson’s first use of the drone was in his backyard to get familiar with its operation. In the course of doing so, the drone flew over Marks’s yard and videotaped what was behind his massive fence. Nelson was gob smacked by what he saw – a clothes line with numerous adult size super hero costumes hanging from it. There was one for Captain America, Spiderman, Green Lantern, Aqua Man, Bat Man and Flash. Nelson couldn’t imagine how Marks fit into the tights.

Unbeknownst to Nelson, Marks’s yard was under surveillance itself. Marks became aware that Nelson’s drone had videotaped Marks’s yard. Marks went ballistic over Nelson’s actions as the long-time secret identity of six super heroes had now been revealed. Marks filed suit, seeking damages for invasion of privacy and demanding that the videotape be destroyed.

Nelson sought coverage for the suit from Gumshoe Risk Retention Group, an organization providing insurance for detective agencies. Gumshoe had issued a Private Eye General Liability policy to FBEye, Inc. Gumshoe provided a defense to Nelson. However, it was under a reservation of rights. The insurer maintained that, while the policy provided “personal and advertising injury” coverage for invasion of privacy, the necessary requirement of oral or written publication of material had not been satisfied. As Gumshoe RRG saw it, the videotape of Marks’s backyard had not been publicized to anyone.

With Gumshoe’s heels dug in, and Marks’s threats mounting, Nelson settled the Marks action for $17,000 and then filed suit against Gumshoe seeking recovery of the settlement payment. Nelson and Gumshoe agreed to stipulated facts and filed cross motions for summary judgment.

The court in FBEye, Inc. v. Gumshoe Risk Retention Group, No. 17-2234 (R.I. Sup. Ct., Kent Cty., June 28, 2018) held that the Gumshoe policy afforded coverage for Nelson’s payment to settle the Marks dispute.

The court was not convinced by Gumshoe’s “no publication” argument. As the court saw it, the video images had been published to Nelson. Here’s the crazy way how. Because the drone was doing, what would have been the job of a Gumshoe employee, the court treated the drone as a de facto employee of Gumshoe. Therefore, there had been a publication of the video imagines from the drone to Nelson.

The court was not unmindful that its reasoning was unique. However, for support, it turned to Judge Cardozo, who famously discussed the need for the law to evolve with the times: “Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel to-day.” MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916).