One of the top stories of 2014 was the increasing spread of theEbola virus in some West Africa countries and its migration to theUnited States. Authorities scrambled to put policies in place formonitoring travelers coming from Ebola-affected countries to theU.S., with some airports screening passengers, and somejurisdictions imposing more invasive measures.

Nurse Kaci Hickox, who did not test positive for Ebola, becameembroiled in a legal battle after returning from treating Ebolapatients in Sierra Leone and being quarantined in New Jersey. Shefought against a forced quarantine in her home state of Maine. Sheeventually settled and the quarantine did not happen, but false imprisonment was one of the possible claims for her tofile.

Black's Law Dictionary (6th edition) defines the tortof false imprisonment as “the nonconsensual, intentionalconfinement of a person, without lawful privilege, for anappreciable length of time, however short .”

Federal and state authorities have statutory grounds forimposing reasonable quarantines to protect the public health, so aclaim for false imprisonment may not have succeeded. But, what ifan employer had tried to force an employee into a quarantine whenstate or federal officials had not mandated it? Would insurancecoverage apply for any subsequent claims filed?

The Insurance Services Office (ISO) Commercial General LiabilityCoverage Form provides coverage for personal and advertising injuryliability. “Personal and advertising injury” is defined on the formto include injuries arising out of false imprisonment. An exclusionfor employment-related practices can also be added to the form,which excludes personal or advertising injury arising out ofemployment-related practices, policies, acts, or omissions.

Some courts have interpreted false imprisonment with regards toemployment-related practices.

For instance, in John Davler, Inc. v. Arch Ins. Co.,178 Cal.Rptr.3d 502 (2014), employees alleged, among other claims,that they were victims of false imprisonment when a supervisorrequired all of the women in the department to undergo aninspection of their persons in the ladies' restroom, performed byanother employee. The alternative to being inspected was to befired.

John Davler, Inc. was insured under a commercial generalliability policy issued by Arch Insurance Company. Coverage wasprovided for sums the company became legally obligated to pay asdamages due to personal and advertising injury, defined as “injury,including consequential 'bodily injury,' arising outof…[f]alse…imprisonment.” The form also contained anemployment-related practices exclusion stating that injury arisingout of employment-related practices— such as discipline,defamation, humiliation, or malicious prosecution—were not coveredunder the personal and advertising injury coverage.

John Davler, Inc. argued that false imprisonment was notexplicitly excluded in the items listed as arising out ofemployment-related practices., while it was specifically mentionedin the coverage for personal advertising injury. The court, though,said that the list provided was not an exhaustive list but thatother similar acts could also be part of the exclusion.

The court concluded, “The conduct giving rise to the falseimprisonment claims by the John Davler employees wasemployment-related, and the employees' injuries arose out of theiremployment.” Therefore, the employment-related practices exclusionbarred coverage for the employees' false imprisonment claims.

On the other hand, in an unreported case— Perkins v.Maryland Cas. Co., 388 Fed. Appx. 641 (9th Cir. 2010)—thecourt found that an insurer had the duty to defend an insuredagainst false imprisonment claims brought by the insured's formeremployee.

In this case, a former employee testified that she was backedagainst a wall while her supervisor yelled at her. California lawstates that the elements for a tort of false imprisonment are thesame as the definition from Black's Law Dictionary: “(1)the nonconsensual, intentional confinement of a person, (2) withoutlawful privilege, and (3) for an appreciable period of time,however brief.”

The court stated that the employee could have possibly asserteda claim for false imprisonment. The insurer argued that anypotential claim could not be covered because it would be excludedby the employment-related practices exclusion, which, like in theprevious case discussed, contained a list of excluded actions.False imprisonment was not included on the list.

The court said that it was unclear whether false imprisonment,in the context presented, was similar enough to the listedemployment-related practices (coercion, demotion, evaluation,reassignment, discipline, defamation, harassment, humiliation, ordiscrimination) to be considered part of the exclusion. Thus, thecourt found the exclusion ambiguous and held that the insurer had aduty to defend the insured.

In North American Bldg. Maintenance, Inc. v. Fireman'sFund Ins. Co., 137 Cal.App.4th 627 (2006), the courtfound that the employment-related practices liability exclusion didnot apply to an action brought by employees of another company.

North American Building Maintenance, Inc. (NABM) was acommercial janitorial services provider to other companies,including Target Stores. Three former janitorial workers filedaction against Target and NABM for false imprisonment, stating thatthey “were frequently locked in the business premises without exitkeys and without a non-alarm exit available and against theirwill.” They were sometimes locked inside even after their shiftsended.

Fireman's Fund refused to defend NABM and said that the falseimprisonment claim arose from employment-related practices,policies, acts, or omissions. NABM countered that the exclusionshould apply only to employees, and the janitors were employees ofan independent contractor. NAMB contended that theemployment-related practices exclusion requires an employmentrelationship, which it did not have with the janitorial workers.Fireman's Fund viewed the requirement of an employment relationshipas immaterial.

The court said, “Broadly speaking, there appears to be noimpediment to holding a nonemployer liable for the falseimprisonment of another employer's employee. False imprisonment isa generic, not an employment-specific tort.” However, examining thepolicy as a whole, the court found reasons to conclude that theemployment-related practices exclusion would not apply when theinsured is not the employer, former employer, or potential employerof a third-party claimant. The reasonable expectations of NABM wereprotected, and the court held that the exclusion did not apply toclaims by employees of an independent contractor.

While these cases do not specifically address quarantines, theydo touch on the employer-employee relationship as it applies tointerfering with civil liberties. Insureds should understand howcertain exclusions may apply when coverage is presumed.