A federal district court in Delaware has ruled that a former wife was entitled to a defense by her homeowner's insurance company of a lawsuit brought by her former husband for defamation and negligent infliction of emotional distress, where he asserted that her alleged actions had caused him to suffer heart palpitations and chest pain.
The Case
Richard J. Korn alleged in a lawsuit he filed against his former wife, Magda Y. Korn, that about one month after their divorce, she took a portable hard drive from Mr. Korn's home and provided it to the New Castle County Police Department, believing it contained child pornography.
Mr. Korn was arrested and charged with 25 felony counts of dealing in child pornography, carrying a potential prison sentence of 50 to 625 years. Following trial, Mr. Korn was acquitted.
Mr. Korn's suit against Ms. Korn alleged malicious prosecution, defamation, abuse of process, intentional infliction of emotional distress (“IIED”), and negligent infliction of emotional distress (“NIED”).
Ms. Korn notified her homeowner's insurance company, Liberty Insurance Corporation, of the action. Liberty sought a declaratory judgment that it had no duty to defend or indemnify Ms. Korn in Mr. Korn's action.
The parties moved for summary judgment.
The Liberty Policy
The Liberty policy defined:
bodily injury
as:
bodily harm, sickness or disease, including required care.The District Court's Decision
The district court ruled that Liberty's duty to defend Ms. Korn had been triggered by at least one count in Mr. Korn's complaint that met the requirements of an alleged “occurrence” causing “bodily injury.”
The district court first agreed with Liberty that the counts of malicious prosecution, abuse of process, and IIED did not qualify as “occurrences” under the policy because they alleged intentional and malicious conduct on the part of Ms. Korn.
However, the district court continued, the counts of defamation and NIED sounded in negligence and “may” count as “occurrences” as defined in the policy as they did not describe intentional acts. The district court then examined whether any of the damages allegedly resulting from the defamation and NIED counts were “bodily injuries” under the policy, and decided that they were.
The district court noted that medical evidence indicated that Mr. Korn had complained of physical symptoms such as heart palpitations and chest pain. Moreover, it said, his complaint's request for “medical, psychiatric and psychological expenses” created, “at minimum, an ambiguity which must be resolved against Liberty, and in favor of Ms. Korn, at this stage.”
Accordingly, the district court concluded that Mr. Korn's action alleged negligent conduct by Ms. Korn that had caused physical injury to Mr. Korn, thus satisfying the policy's requirement of an “occurrence” causing “bodily injury,” and Liberty had a duty to defend Ms. Korn.
The case is Liberty Ins. Corp. v. Korn, No. 15-332-LPS (D. Del. Sept. 27, 2016). Attorneys involved include: Daniel A. Griffith, Kaan Ekiner, WHITEFORD, TAYLOR & PRESTON, L.L.C., Wilmington, DE., Attorneys for Plaintiff; Jeffrey S. Goddess, ROSENTHAL, MONHAIT & GODDESS, P.A., Wilmington, DE., Attorney for Defendant Magda Y. Korn; Gary S. Nitsche, WEIK, NITSCHE, DOUGHERTY, & GALBRAITH, Wilmington, DE., Attorney for Defendant Richard J. Korn.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].