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Vol. 9 - Issue 2
February 26, 2020


“Alienation of Affections” Part II – Is It Insurable?


On Valentine’s Day, The Wall Street Journal published my article on Alienation of Affections claims.  In plain English – in six states there exists the right to bring a suit against the person who had an affair with your spouse that caused the break-up of your marriage.  I know.  It’s hard to believe. 

The piece looked at some of these cases and the legal issues that arise (unusual ones, as you can imagine).  I hope you’ll  check it out:


Part II – Is It Insurable?

We all know the usual follow-up question after a tort verdict: Is it insurable?  There is not much law addressing whether a judgment, for Alienation of Affections, is insurable under a liability policy.  However, not too long ago – 2007 -- the South Dakota Supreme Court addressed this very issue in State Farm v. Harbert.

The court’s decision is very straightforward and unambiguous. 

David and Peggy Kalt were married on Valentine’s Day in 1976.  In 2001, Peggy began engaging in an extra-marital affair with Thomas Harbert, an orthopedic surgeon in a practice where Peggy was employed as clinic manager.
David discovered the affair, filed for divorce against Peggy and an action against Harbert alleging alienation of affections.

Harbert sought coverage for the suit under a personal umbrella policy issued by State Farm.  State Farm undertook Harbert’s defense under a reservation of rights and commenced an action seeking a declaratory judgment that it had no obligation to defend or indemnify Harbert for the suit.  Of note, Harbert, after seeing challenges to obtaining coverage, amended his complaint to include a cause of action for invasion of privacy, since the policy specifically provided coverage for it.

The trial court concluded that no coverage was owed.  The South Dakota Supreme Court affirmed.

First, the Supreme Court needed to figure out what to do with the claim for invasion of privacy.  The court decided that, despite its name, it was still a claim for alienation of affections: “By amending his complaint to include invasion of privacy, Kalt was, in essence, attempting to repackage his alienation of affections claim as an invasion of privacy claim to create insurance coverage for Harbert in the underlying action. The privacy claim stemmed from the same underlying injury as the claim for alienation of affections: allegedly the intentionally harmful, voluntary adulterous conduct leading to the dissolution of Kalt’s marriage. Thus, it cannot be said that the privacy claim is separate or distinct from the alienation of affections claim.”

With that issue put to bed, the court concluded that coverage for the claim for alienation of affections was precluded by the intentional torts exclusion: “At the heart of an alienation of affections tort is the specific intent to alienate the affections of one spouse away from the other spouse. Therefore, the resulting injury is always ‘expected or intended.’  As a result, State Farm has no duty to defend Kalt’s alienation of affections claim because it falls within the intentional tort exclusion as an expected or intended loss and is, therefore, not covered by Harbert’s policy.”

Lastly, the court added a public policy belt to the expected or intended suspenders: “Pursuant to this State’s public policy, an individual is not allowed to impute financial responsibility to his insurance company for his own intentional torts. Such responsibility stays with the insured. Here, Harbert allegedly committed a wrong by enticing Peggy’s affections away from Kalt. Harbert is attempting to shift responsibility for these actions to his insurer, State Farm. The alienation of affections is conduct that should not be encouraged by the protection of financial impunity. To permit such ‘affair insurance’ would defeat the purpose of punishing and deterring individuals for their own tortious acts. In accordance, we hold that insuring the tort of alienation of affections is contrary to South Dakota public policy.”




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