Once upon a time in a galaxy far, far, away, I clerked for an attorney defending a client in a massive tort claim. Over the millennia, the case has stuck with me for several reasons. First it was of enormous scope. The foundation was an explosion of a gas well in Mississippi. As far as I could tell, every law firm in town represented one of the defendants. It was my first exposure to a multitude of fascinating legal issues, not the least of which was "coverage." I spent much time researching various legalities in "the stacks." There was computer legal research back then, but it was expensive.
There were some complications in the case. Many of the defendants had been independent contractors instead of employees. As such, they were not covered by the insurance policy of the company drilling the well and managing the property. They, therefore, struggled with the cost of hiring lawyers. I recall several occasions of lawyers, in discussion of the next complaint to be filed in the various courts and circumstances. More than once, the threat of a new complaint met the retort "please allege that my client used his car to get to the well that day."
This was met with laughter, but I frankly wondered if some were not serious about it. You see, an automobile insurance policy might be expected to have "a standard liability provision covering . . . liability arising out of the use of an automobile." West American Ins. Co. v. Silverman, 378 So. 2d 28 (Fla. 4th DCA 1979). Thus, if the explosion was somehow tied back to using a car to reach the well, then perhaps a duty to defend. It was tenuous and seemingly humorous. I don't know how serious those lawyers were.
I was reminded of those imaginative and creative lawyers last year. CNN reported that a "Missouri woman was awarded $5.2 million . . .from (an) insurance company" after she and her "partner" engaged in congress in the partner's motor vehicle and the plaintiff contracted a sexually transmitted disease. In some perspective, this congress was sufficiently related to the automobile to place the "partner's" auto coverage on the risk. The matter was appealed and affirmed by a "three-judge panel." The reviewing court seemed somewhat perturbed that the insurance company had not defended the allegations until after significant litigation had occurred.
In January, according to WSAZ3, the Missouri Supreme Court reversed, unanimously. It did not conclude that the insurance company was without potential liability. It merely sent the case back to the trial court to allow the insurance company to further defend itself. The CBS coverage of the Court's conclusion says that the insurer is "off the hook, at least for now." CBS reports that the insurer's defense is essentially that "the woman's claim did not occur because of normal use of the vehicle."
The reversal does not necessarily mean an end. The Court did not conclude that transmission of a sexually transmitted disease is not "arising out of." It really only decided that the procedure in the case was not appropriate, that the party told to pay "$5.2 million" should first be given a chance to make the argument that such an incident is not "arising out of." The timing of the various involvements is troubling, and the appellate court's frustration is noted. But, in the world of "due process," there is virtually always a few moments to allow someone the opportunity to say their peace.
What are the implications? Well, if someone sends you a spam text/email while in a car, and you are fooled into thinking they really are a Nigerian Prince, should their auto carrier pay you back? If your fiance calls from the car to cancel your engagement (breach of contract), should their auto carrier pay you back? If you catch a ride home with a coworker during the early days of the next pandemic, and you feel like you caught COVID-97 from them, should their auto carrier pay your lost wages?
What if the email/text, phone call, or exposure happens at or from your house, should your homeowner's policy pay damages? If you are at work when you send that text/email, make that call, or exhale SARS-CoV-109 should the business' liability policy or premises policy be liable? Certainly, the answers are simple - it depends. It depends on what risk the insurance company agreed to take on. That is in the contract. That is in the language such as "arising out of the use of an automobile." And we must never forget that such language in contracts is almost never negotiable and almost never written by the consumer. That said, it is almost always subject to a raft of legislative and regulatory constraints and restrictions.
In the end, it does not matter so much whether STDs are covered by auto policies. The loss in that even will be suffered, and the insurance company will pay the $5.2 million. Some will see that as appropriate, and others not. The insurance companies (all of them) will adjust with new policy language (an exclusion) or they will all raise the rates we all pay for auto coverage. The outcome will be either that someone has to pay for their own STD (victim), their paramour's STD (car owner), or their insured's paramour's STD (auto carrier).
If it is the carrier, then reaction will follow (policy language, exclusion, or rate increase). If it is the car driver, reaction will follow (protection, disclosure, abstention). If it is the victim, reaction will follow (anger, disenchantment, abstention). In the end, someone will pay the cost of the STD in this case. That is true of almost any personal injury. See Someone Has to Pay (May 2016). There will be medications to pay for, impairment to recompense, anguish to assuage, and more. There is no denying the impact of the exposure, nor any easy answer for the victim.
That said, the contract and the law will determine if there is a $5.2 million payout because the victim was victimized in a car instead of an apartment or house. And consider whether the next case that arises in a house will result in a claim against the homeowner's or renter's policy. The analysis will remain, is this covered by the contract, and the outcome will be the same if it is, contract changes or higher rates for all.
