Bullying: Who’s Covered for the Loss?

Hardly a day goes by without a news story of someone being bullied—children, teenagers and even adults at the workplace.

Last week a situation was reported near where I live that involved a 15-year-old girl not only verbally bullying another teen but also physically beating her up. The bully even posted a video of the beating on YouTube.

The next day the father of the assailant apologized publicly for his daughter’s actions, reportedly saying he was “appalled that it was my child who did this.” 

Apologies aside, it is likely that the next chapter in this drama will be the parents of the victim suing the alleged bully and her family. Which brings us, of course, to the question of whether a Homeowners policy would defend a lawsuit against a child who is accused of bullying.

In this situation (assuming that the family has a standard Homeowners policy and lives in the same household), the daughter and her parents would be considered “insureds” under the policy. The personal-liability and medical-payments sections of the standard Homeowners form provide coverage for “bodily injury” (the injuries from the beating) caused by the occurrence (the beating).

Some would say that an occurrence must be accidental—and beating someone up is not accidental.

But can an argument be made that the teen did not intend to injure the other girl? Some courts have held that an injury that is not expected or intended, even though resulting from intentional action, is not excluded by the intentional-acts exclusion. Medical payments also are available for bodily injury caused by the actions of an insured.

So far, so good—except for the question of whether any bullying is accidental. There also are a number of other questions about potential defense and coverage once we get past these preliminaries.

The standard Homeowners form states that “bodily injury” means “bodily harm, sickness or disease.” There is an exclusion for bodily injury arising out of, among other causes, “physical or mental abuse.” So the mental abuse of bullying would be excluded, and the physical beating also could be if it were considered to be physical abuse.

In addition, Exclusion E.1 voids coverage for bodily injury that is expected or intended from “an” insured—not “the” insured. Courts often have interpreted exclusions for acts of an insured to preclude coverage for any insured.

If the parents of the teen bully in our example are sued for the injuries she inflicted, their Homeowners policy likely would not be triggered for any family members because of the breadth of the “an insured” wording.

Based on all of this, I don’t believe a Homeowners policy would protect the teen or her parents.

Should it? Societal mores aside, I imagine the parents of this teen will hope theirs at least pays for defense costs when the inevitable lawsuit arrives. What would you tell your insured in this situation? 

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