The Bullying Epidemic

 

Sexting, Liability, and Bodily Injury

 

By Christine G. Barlow

From the January 2013 issue of Claims Magazine

 

In recent years, bullying has become a large problem for schools. If you have children or just like to watch cartoons, then you have probably noticed the anti-bullying advertisements on Cartoon Network or Boomerang. They encourage students being bullied or who see another student being bullied to get an adult to intervene.

 

Technology has made bullying much more pervasive than the old bullying that existed in a neighborhood, playground, or individual school. Facebook and other social-media sites have made it easy for many people to take part in the bullying or harassment of an individual student. 

 

Tragic Consequences

 

Unfortunately, these actions can have serious consequences: A number of students have committed suicide because of being bullied or harassed by others. Jesse Logan was an 18-year-old who sent nude pictures of herself to her boyfriend. After they broke up, the ex-boyfriend sent those nude pictures to other high school girls who started harassing Jesse by calling her derogatory names. After being harassed for a number of months, she committed suicide. A similar case is that of 13-year-old Hope Witsell, who sent a topless photo of herself to a boy she liked. The boy then forwarded the photo to others, who began harassing Hope at school. Hope later committed suicide.

 

While these are extreme cases, there are many other students who have been harassed and suffered from varying degrees of emotional distress because of bullying. This leads to questions about liability coverage from the homeowners' policy since others inflicted distress onto the victim.

 

Intentional Injury

 

The first exclusion that comes to mind is that of intentional injury. “Bodily injury” or “property damage” is excluded if it is intended or expected by the insured, even if the resulting injury or damage is of a different kind, quality or degree than what was initially intended. The result of bullying is often emotional distress; can emotional distress be considered to be “bodily injury”? The policy defines “bodily injury” as “…bodily harm, sickness or disease, including required care, loss of services and death that results.” No mention is made of emotional distress. However, mental stress can manifest itself in physical symptoms. Look at how common stomachaches are for some students on test days. This is where emotional distress can become bodily injury. Certainly the girls who committed suicide were stressed to the point that bodily harm resulted from the harassment. Other people who are bullied may experience headaches, stomachaches, and other physical forms of stress. Therefore, emotional distress, at least when it manifests itself physically, can be seen as “bodily injury.”

 

An Occurrence

 

The question then becomes whether the injury was intended or expected by the insured, which gets to the motivation of bullying. Is being mean or excluding another youth considered intentional bodily injury or emotional distress, even if the sole intention of the action was “being mean”? What if the youth didn't really think about consequences? This could be quite common among teenagers. Is the resultant emotional distress then covered by the policy? It could be, particularly when you look at the definition of “occurrence.”

 

The policy defines occurrence as an accident, including repeated or continuous exposure to the same general harmful conditions that result in injury or damage. Merriam Webster defines accident as “an unforeseen and unplanned event or occurrence.” Keep in mind, however, there are two other significant definitions: The first is “an unfortunate event resulting especially from carelessness or ignorance” or “an unexpected happening causing loss or injury which is not due to any fault or misconduct of the person injured but for which legal relief may be sought.” 

 

Is it reasonable to expect teens, especially the younger teens, to be able to foresee the ramifications of all their actions? It is not unusual for teenagers to fail to think through their actions completely, especially if a group of teenagers is involved. A youth who shares a compromising photo is certainly careless and oblivious as to the possible consequences, and another teen who passes on the photo can be seen in the same light. Therefore, you could have an occurrence, and if mental distress results in physical symptoms, the carrier could be liable for providing a defense of the teen's actions. 

 

Mental Abuse

 

A related exclusion is that of injury or damage from mental abuse. The term is not defined; Merriam Webster Online defines “abuse” as a corrupt practice or custom, improper or excessive use or treatment; misuse (drug abuse) or language that condemns or vilifies usually unjustly, intemperately and angrily. Vilifying language may or may not fit the actions involved in teasing, harassing, or humiliating someone. As mentioned earlier, however, in order for there to be liability coverage, the action must cause “bodily injury” or “physical damage.”

 

Again, because emotional distress is not “bodily injury,” there would not be coverage as long as there are no physical manifestations of the mental distress.

 

Bullying is a complicated issue that in recent years has received a lot of attention. Technology has made bullying more pervasive by broadening the scope of the bullying beyond an individual's neighborhood or school; a much wider spectrum of people can now be involved in bullying an individual.

 

The homeowners' policy can come into play when the bullying results in “bodily injury,” and the act of bullying does not meet the policy exclusions. These are difficult requirements to meet, and most instances will be excluded, but it is possible for coverage to be found under certain circumstances. The situation and policy language must be reviewed carefully in order to make the proper determination of coverage.