Cyberbullying is real and scary. Bullying and harassment in schools have always been a problem. Let's face it, children can be mean to each other. With the power and pervasiveness of the Internet, cyberbullying is persistent, permanent, and hard to notice.
It can cause emotional and mental distress. In some situations, it can lead to physical harm when minors who cannot cope with the distress harm themselves.
In Pennsylvania, there is a sad story of a high school student who committed suicide within a couple days of her classmate attacking her health, appearance and sexual history in a text message. School administrators suspended the boy and his parents promised to supervise him, but he continued harassing the girl before she took her life.
The girl’s parents filed a lawsuit against the boy and his parents alleging that the boy’s negligent and wanton acts caused their daughter’s death. They alleged that the boy’s conduct was unreasonable, negligent, grossly negligent, careless, and reckless.
In a world where insurance carriers are being asked to cover more cyber-related events, the boy and his mother asked their homeowner insurer to defend and indemnify them in the state court action. I am willing to bet that the homeowner's insurance carrier never intended to cover, or even thought there would be a day when it would be asked to cover physical harm related to cyberbullying. But, the insurer contractually agreed, in the homeowner’s insurance policy, to provide a defense to a suit arising from an “occurrence,” defined as an “accident” under Pennsylvania Law.
The insurer initially provided a defense, but then filed a separate lawsuit asking a Federal Court to decide whether it was contractually obligated to defend and indemnify a cyberbullying claim.
The insurer argued that because the boy sent the text message, there is no “accident,” at least as to him. Understandably, the insurer's argument was that the boy’s “harassment, bullying and cyber-bullying was inherently non-accidental in nature.”
In his defense, the boy argued that Pennsylvania law required the Federal Court to consider the foreseeability of the injury from his perspective, and while he cannot dispute sending the text message, the girl’s death by suicide constituted an extraordinary intervening event far beyond anything contemplated in the text message and unforeseeable to him.
Court's Reluctant Decision
The judges must have had some difficulty with these facts. But, the judges were not deciding the boy's culpability. The boy's culpability is for the state court to decide. The single question of law for the Federal Court was whether the suicide was an “occurrence,” defined as an “accident,” triggering the insurer's duty to defend under Pennsylvania law.
The Federal Court noted that viewing these events from the boy’s perspective, it could not conclusively find that death by suicide is foreseeable from the boy's cyberbullying; therefore, it may have been an "accident" that falls within coverage under the policy.
Based on this reasoning, the Federal Court held that the insurer must defend the boy in state court. The Court, however, did not address whether the insurer has any duty to indemnify the boy (if he is found liable in state court). Depending on the results of the state court case, the Federal Court may face a different question on the insurer’s duty to indemnify.
The Federal Court stated that it reached its conclusion mindful of a tragedy too common among our high school students arising from cyberbullying.
This case is cited as 2018 WL 6514907 (E.D. Pa., 2018).
Cyber Claims and Physical Harm
The Internet of Things is gaining mass adoption and the insurance industry is concerned about cyber events that result in physical or property damage. For example, we know that cars, thermostats, drones, construction equipment, etc. are hackable, which could result in accidents. For this reason, property and casualty insurers are reconsidering the language in their policies to avoid unintended exposure. But, until this case, I do not think anyone thought a homeowners insurance carrier would be asked to cover a cyberbullying claim.
As I've said many times, welcome to the cyber age.
~ Florida Cyber Lawyer, Robert Stines, Esq., CIPP