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December 12, 2012 Articles

Will Cyberbullying Claims Be Covered under Homeowners' Policies?

Along with the advent of the electronic age has come an unexpected side effect—a new form of bullying known as “electronic aggression” or “cyberbullying” that poses new coverage issues for policyholders and insurers alike

by Rina Carmel, Barbora Pulmanova, Sherilyn Pastor, and Nina Golden [1]

Along with the advent of the electronic age has come an unexpected side effect—a new form of bullying known as “electronic aggression” or “cyberbullying” that poses new coverage issues for policyholders and insurers alike. As may pertain to coverage issues, the Centers for Disease Control and Prevention (CDC) defines bullying as “a form of youth violence” that which includes “[a]ttack or intimidation with the intention to cause fear, distress, or harm that is either physical (hitting, punching), verbal (name calling, teasing), or psychological/relational (rumors, social exclusion),” and which “can result in physical injury, social and emotional distress, and even death.”[2]

Bullying can occur in person or through technology (electronic aggression, or cyberbullying). Electronic aggression is bullying that occurs through email, a chat room, instant messaging, a website, text messaging, or videos or pictures posted on websites or sent through cell phones.[3]

An anti-cyberbullying advocacy website notes that “[c]yberbullying is usually not a one time communication, unless it involves a death threat or a credible threat of serious bodily harm.”[4]

Cyberbullying, if serious enough, may result in a misdemeanor cyberbullying charge or juvenile delinquency charges.[5] If hacking or password or identity theft is involved, state and federal cyber-crime statutes may be implicated.[6]

The past decade has seen an increase in cyberbullying, including some highly publicized incidences of suicide by victims. The CDC has accordingly labeled cyberbullying a probable “emerging public health problem.”[7] Given that over 80 percent of children aged 12–17 use social media, incidences of cyberbullying could well increase.[8] Although so-called traditional bullying has long presented coverage issues (such as whether there was an occurrence), cyberbullying presents unique coverage questions, making it an emerging coverage issue.

Third-party claimants may pursue claims against alleged minor perpetrators as well as their parents, who in turn may seek coverage under their homeowners’ policies.[9] This article considers some of the coverage issues that may be presented by cyberbullying claims under homeowners’ primary and umbrella liability policies, as both types of policies have had recent changes in language that have an impact on what coverage may be available.

Case Studies

Studies report that with increasing frequency, teens and preteens are using technology to embarrass, threaten, harass, humiliate, and target their peers. Among other things, teens may text a flurry of cruel messages and taunts. Using websites such as Facebook, they may electronically gossip about others, post their “Friends’” private concerns for group discussion, and upload photos and videos without the permission of those pictured. The audience they reach is, in some instances, without electronic bounds.

Consider the experience of 14-year-old D.C., the plaintiff in a recently published decision in a tort suit for cyberbullying.[10] The following description of alleged events is taken from the court’s opinion, including allegations from D.C.’s complaint, statements in declarations by defendants R.R. and his father, and the court’s discussion.

Because D.C. was pursuing a career in entertainment, he maintained a website to promote himself.[11] When students at his school learned of it, they posted derogatory comments about his perceived sexual orientation and threatened him with physical injury. Classmate R.R. was among those posting unflattering messages.[12] [BN1] R.R. admitted that he knew D.C. only by name, yet when a fellow classmate suggested R.R. “check out” D.C.’s website, R.R. did and was put off by what he described as a “pompous, self-aggrandizing, and narcissistic” website. Seeing that fellow students were having an “Internet graffiti contest” for the most outrageous post, R.R. posted what he characterized as a “fanciful, hyperbolic, jocular, and taunting” message:

Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I’ve . . . wanted to kill you. If I ever see you I’m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.[13]

Although R.R. claimed he and other students regarded the posts as a “gag,” D.C. alleged that he was humiliated, and his frightened family notified police, who suggested that D.C. withdraw from school. D.C. and his family ultimately moved to a different part of the state and filed suit alleging, among other things, defamation and infliction of emotional distress. The suit sought damages for, among other things, personal and emotional injury, loss of income, medical expenses, and moving costs.[14]

R.R.’s father stated that he learned of his son’s alleged cyberbullying when he was served with D.C.’s lawsuit. He testified that he had purchased his son’s computer for homework and school research and to communicate with teachers and others regarding school-related matters. But the computer was in R.R.’s bedroom, and his father did not know his son’s passwords or monitor his son’s email or online accounts. R.R.’s father said that his son had never been in trouble and was “compassionate, well-grounded, with many friends.”[15] His son allegedly was never involved in any physical altercations. Indeed, according to R.R.’s father, R.R. had practiced Buddhism and was a vegetarian. R.R.’s father said that if he had known what was going on, he would never have allowed his son to post such a comment. When he did find out, in addition to punishing R.R., he terminated R.R.’s Internet access and forbade him to use a cell phone except in emergencies. He also had R.R. evaluated by a psychiatrist, and his family cooperated in the police investigation, which resulted in no criminal charges.[16]

Cyberbullying incidents are increasing in number.[17] A 2010 study by the Cyberbullying Research Center indicates that 20 percent of middle and high school children reported being cyberbullied; data from the National Crime Prevention Council suggests the incident rate is much higher, at about 43 percent.[18] According to a fact sheet published by the Cyberbullying Research Center in 2010, 23 percent of middle school children surveyed reported having “[p]osted something online about another person to make others laugh,” while over 18 percent reported that they had “[r]eceived an upsetting email from someone [they] knew.”[19]

Several high-profile incidents have allegedly resulted in teenagers taking their own lives, at least in part because they were electronically mistreated by their peers. In 2003, for example, 13-year-old Ryan Patrick Halligan of Essex Junction, Vermont, committed suicide after middle school classmates allegedly insulted him incessantly in person and online.[20] But some claimants are responding with civil suits.[21] Alex Boston is a Georgia middle school student who recently filed a libel suit against alleged cyberbullies. According to the 15-year-old, her classmates set up a phony Facebook page in her name and posted a profile photo designed to make her face appear bloated. They also allegedly posted content suggesting Alex used drugs and spoke a made-up language called “Retardish.” The website included posts, allegedly from Alex, that were suggestive and racist. Attorneys and experts predict that lawsuits such as this one “are bound to become more commonplace.”[22]

Survey of Anti-Cyberbullying Statutes

Currently, no federal laws directly address cyberbullying.[23] An anti-cyberbullying bill, the Megan Meier Cyberbullying Prevention Act, named for an alleged cyberbullying victim who committed suicide, was introduced in the House of Representatives in 2009 but died in committee.[24] As of the date of writing, 45 states and the District of Columbia have enacted anti-cyberbullying statutes.[25] Although state statutes do not specifically create a private right of action, claimants may nonetheless allege the statute in lawsuits,[26] meaning that insurers may or must consider applicable statutory language in evaluating coverage for such allegations.

As relates to coverage issues, the statutes can be categorized by the following general parameters.

Levels of conduct: A few states, such as Washington, require “intentional” conduct for cyberbullying.[27] Louisiana requires “malicious and willful intent.”[28] Most states, however, provide for a range of levels of conduct. For example, in Utah, cyberbullying requires either “intent or knowledge, or . . . reckless disregard. . . .”[29] Other states define cyberbullying based on the effect on the claimant. For example, anti-cyberbullying statutes in California and Illinois do not expressly specify any level of conduct by the perpetrator; instead, they define the tort by the effect it can “reasonably be predicted to have” on the claimant,[30] arguably suggesting a negligence or strict liability-type standard. From a coverage perspective, the state’s required level of conduct may affect whether there is an occurrence or whether an “expected or intended” exclusion bars coverage. A related issue is whether allegations of negligent supervision against the perpetrator’s parents may be covered.

Repeated or continuous conduct: Many states define cyberbullying as involving a repeated or continuous course of conduct. For example, Alabama’s anti-cyberbullying statute defines harassment as “[a] continuous pattern of intentional behavior. . . .”[31] Some states, such as North Dakota, define cyberbullying to include “pervasive” conduct,”[32] which could be interpreted to mean a continuous course of conduct, although the term could also refer to the severity of a single incident. New Hampshire defines cyberbullying to mean “a single significant incident or a pattern of incidents. . . .”[33] From a coverage perspective, if the cyberbullying took place over an extended period of time, it may affect which policy or policies were on the risk, as well as whether the conduct was knowing or intentional.

Minors: Anti-cyberbullying statutes apply to conduct by minors. From a coverage perspective, at issue is whether minors can form intent, which would possibly affect the analysis of whether there was an occurrence or whether an “expected or intended” exclusion may bar coverage.

Bodily injury and/or emotional distress: Most state statutes note that physical injury, emotional injury, and property damage can result, and some require that such injury result. For example, Oregon’s anti-cyberbullying statute states that cyberbullying is an act that

[h]as the effect of:
(A)       Physically harming a student or damaging a student’s property;
(B)       Knowingly placing a student in reasonable fear of physical harm to the student or damage to the student’s property; or
(C)       Creating a hostile educational environment, including interfering with the psychological well-being of a student. . . .[34]

From a coverage perspective, this may affect whether policy requirements of bodily injury and property damage are satisfied. With respect to emotional injury, policy language and state substantive law vary greatly as to whether emotional injury can constitute “bodily injury.”

Criminal penalties: Some states make cyberbullying a crime. For example, North Carolina makes it a misdemeanor to “[u]se a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a minor” “[w]ith the intent to intimidate or torment a minor or the minor’s parent or guardian.”[35] From a coverage perspective, a criminal conviction may affect whether a criminal acts exclusion could bar coverage; a criminal conviction or acquittal could be binding in a subsequent underlying action or coverage action to determine the issue of the perpetrator’s intent.

School District Policies and Procedures
As part of the anti-cyberbullying statutory scheme, 42 states and the District of Columbia and Puerto Rico require school districts to implement anti-cyberbullying policies and procedures.[36] Georgia’s model policy, for example, reiterates many of the principles of the anti-cyberbullying statute but adds specificity in certain areas, such as by prohibiting cyberbullying through the use of school equipment, networks, or email systems.[37]

Like state anti-cyberbullying statutes, school district policies and procedures do not create a private right of action,[38] but as with statutes, it is possible that claimants could allege violations of policies and procedures, which insurers may or must evaluate.

Coverage Issues

A recent study found that 27 percent of cyberbullying incidents were “perpetrated by on-line-only contacts.”[39] Thus, cyberbullying coverage claims may be more likely to implicate choice of law issues because, in contrast to traditional bullying, cyberbullying has a greater chance of crossing state lines. Especially if the policyholder/perpetrator and third-party claimant are located in different jurisdictions, choice of law may be a threshold issue for evaluating coverage for cyberbullying claims.

Homeowners’ Primary Layer Liability Policies

Third-party claimants may sue the minor perpetrator under a range of theories, including physical injury, emotional distress, defamation, invasion of privacy, and violation of state anti-cyberbullying statutes.[40] They may sue the perpetrator’s parents under theories of vicarious liability, negligent entrustment, and negligent supervision of the alleged cyberbully.[41] They may also sue individual school employees, alleging that they knew of specific incidents of cyberbullying but did not take action as required by state statute (if any) or school district policy and procedure (if any). Such defendants may seek coverage under their homeowners’ policies.

Many homeowners’ primary layer policies are issued on an “HO3” form, drafted by the Insurance Services Office, Inc. (ISO).[42] Section II, Coverage E—Personal Liability, of the current version of this form provides coverage for claims made or suits “against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies.”[43]

Form HO3 contains the following definitions: “‘Bodily injury’ means bodily harm, sickness or disease, including required care, loss of services and death that results.”[44] “‘Property damage’ means physical injury to, destruction of, or loss of use of tangible property.”[45] “‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in a. ‘Bodily injury’; or b. ‘Property damage.’”[46] An “insured” is defined, in pertinent part, as “you and residents of your household who are: a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above.”[47]

Form HO3 excludes coverage for bodily injury “[w]hich is expected or intended by one or more ‘insureds’.”[48] Form HO3 also excludes coverage for bodily injury “[a]rising out of … physical or mental abuse.”[49]

ISO offers an optional endorsement that homeowners may purchase, written on Form HO 24 82, which affords personal injury coverage subject to an aggregate limit, regardless of the number of offended parties.[50] Form HO 24 82 contains an exclusion for personal injury “[c]aused by or at the direction of an ‘insured’ with the knowledge that the act would violate the rights of another and would inflict ‘personal injury.’”[51]

A Policyholder’s Perspective: The existence and scope of available insurance coverage will depend on a number of factors, among them the unique facts of the case, the causes of action asserted, the controlling law, the intentions of the involved parties, and the terms of the applicable insurance policy. Not all homeowners’ policies are the same. Broadly speaking, personal liability insurance (Coverage E) of a standard homeowners’ policy protects insureds and their covered family members against certain lawsuits. This protection extends to liability for bodily injury caused by an occurrence or accident as defined by the policy. The policy also pays for defense costs when a covered claim is filed against the policyholder. The policy may also have, however, endorsements offering coverage for suits alleging libel, slander, mental anguish, and invasion of privacy.

Policyholders should carefully compare their policy’s terms against the allegations of the lawsuit. Cyberbullying claims will likely contain allegations relating to emotional distress, anxiety, fear, insecurity, and mental injury. Some states regard emotional injuries as “bodily injury,” and they are therefore covered by the policy, particularly when the emotional claims involve physical manifestations such as headaches, stomachaches, and sleeplessness.[52] Many states, however, do not regard purely emotional injuries as “bodily injury, sickness or disease.”[53] It is therefore important to have a complete understanding of the alleged injuries and the applicable law.

Most homeowners’ insurance policies, by definition of the covered occurrence or by specific exclusion (or both), disallow coverage for intentionally perpetrated harm. A policyholder should therefore examine critically an insurer’s assertion of an intentional acts exclusion because those terms vary from policy to policy. Some homeowners’ policies simply exclude expected and intended harm, and other policies exclude harm even if it is different in kind, quality, or degree than initially expected or intended, or sustained by a different person than initially expected or intended. Most courts, nonetheless, construe narrowly the scope of conduct regarded as intentional. They also tend to find expected and intended injury exclusions inapplicable when the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.[54] The standard is often a subjective one, focusing on whether the insured intended the injury, not on whether the insured intended the act.[55] It typically is the insurer’s burden to prove that the exclusion applies, and the situations in which the courts are willing to infer intent to harm as a matter of law are limited. Thus, depending on the insurance policy’s provisions, the policy may well cover bodily injury resulting from unintended results of an intentional act.[56]

It also is important to determine whether the policy allows for severability, such that each insured will be treated as having a separate insurance policy. When a policy provides for severability, an exclusion effective against one insured does not necessarily preclude coverage for the same event for another insured.[57] Some homeowners’ policies treat insureds separately so that when coverage is not available for the alleged cyberbully (i.e., the insured who allegedly has intentionally caused injury), other insureds (such as the parents) are still covered. Some newer homeowners’ policies, however, may be drafted so that coverage is limited if the bodily injury is found to have been expected or intended by any one insured.[58]

Depending on the policy’s terms and where the case is filed, parents sued under a negligent supervision theory for failure to properly supervise their child’s Internet activities likely will be covered. It can reasonably be argued that the conduct causing or leading up to that victim’s injury (i.e., the parents’ negligent supervision) was not intentional and therefore is covered. Coverage for negligent supervision is significant because, in many states, an insurer has an obligation to defend all claims in a lawsuit (even uncovered claims) until all covered claims are resolved.[59]

Moreover, insurers have been aware of the risks associated with electronic technology, including cyberbullying, for many years.[60] Some homeowners’ insurance policies therefore expressly exclude coverage for bodily injury associated with negligent supervision. Insurers whose policies contain no such express exclusion have assumed the risks associated with negligent supervision claims, consistent with their policyholders’ reasonable coverage expectations.[61]

Homeowners’ policies may also cover lawsuits alleging libel, slander, mental anguish, and invasion of privacy.[62] This coverage generally applies to oral or written publication in any manner, including electronic material that slanders or libels another or violates another’s right of privacy. No bodily injury is required to obtain coverage, and because the covered conduct constitutes a wrongful act, the occurrence and expected and intended exclusions do not apply.

This type of coverage is not without limits. Some policies exclude personal injury caused by or at the direction of an insured with the knowledge that the act would violate the rights of another. Policies also may exclude personal injury arising out of an oral or written publication of material, if done by or at the direction of an insured with knowledge of its falsity.[63] Such exclusions have no application where the alleged cyberbully’s offending post or uploaded photo was not meant to violate anyone’s rights or inflict injury, or where the offending post was unwelcome but true. Consider, for example, electronic publication of gossip, regarded as a gray area in personal injury coverage under homeowners’ policies.[64] How an insurer treats an electronic gossip claim will be driven by the relevant factual circumstances. Suppose a preteen posts that a classmate needs support because her parents are divorcing following her father’s day-trading scandal or her mother’s recently discovered affair. If the rumor were posted without knowing or intending that the classmate would be hurt, this would be covered, particularly if the content were true and the concerned classmate made the post only to a small group of “friends,” which did not even include the child who was the subject of the post.

An Insurer’s Perspective: Many homeowners’ policies, including those written on Form HO3, require an “occurrence” and contain an “expected or intended” exclusion. The coverage issue is thus whether cyberbullying is accidental (such that coverage could exist) or expected or intended (such that coverage would not exist). Because cyberbullying is, by most definitions, committed by minors, a threshold issue may be whether minors can form intent. If they can, then insurers can argue that there was no “occurrence” and/or that an “expected and intended” exclusion applies such that no coverage exists.

To date, few cases have specifically analyzed issues of intent in the context of cyberbullying.[65] In D.C. v. R.R., a recent case brought against alleged cyberbullies and their parents (discussed above), the California Court of Appeal ruled that a high school student’s posting of an electronic message on the website of the claimant, a fellow student, stating the alleged cyberbully “want[ed] to rip out your fucking heart,” “want[ed] to kill you,” and was going to “pound your head in with an ice pick,” conveyed an intent to inflict serious bodily injury.[66] The majority also stated that cyberbullying is “intended to hurt or embarrass another person.”[67] The dissent, however, noted that the websites from which the majority’s analysis was taken were not subject to judicial notice, and moreover, California’s anti-cyberbullying statute (discussed above) does not require any level of conduct by the cyberbully; instead, it bases the tort on the effect on the claimant.[68]

A general rule of thumb, in the traditional occurrence context, is that minors 12–13 years old or older can formulate intent, but younger minors generally cannot.[69] Some states, such as Georgia, Illinois, and Utah, have noted that the determination depends on the facts presented.[70] On the other hand, where the minor admits to knowingly and intentionally committing a tort, some states have found that the minor can form intent.[71] It is worth noting that these cases involved torts that might be presented in cases of traditional bullying, and do not necessarily predict how courts would rule in cases involving electronic activity.

Assuming that the alleged minor perpetrator could formulate intent, insurers can argue that there was no occurrence or that the conduct was “expected or intended.” The majority of states evaluate an occurrence based on the insured’s subjective intent.[72] One factor that may affect the occurrence analysis is whether the alleged perpetrator intended the harm that actually resulted. In other words, the perpetrator may have intended to shame the claimant but not to cause the claimant to commit suicide. States vary in whether such unintended consequences constitute an intentional act or not, and the determination often depends on the facts.[73]

A handful of states employ an objective test, usually in limited circumstances, based on the intent of a “reasonable” insured.[74] The issue of what a reasonable teenager intends could well be an issue of fact, and insurers may wish to evaluate allegations carefully where state law (either anti-cyberbullying statutes or occurrence law) or the policies call for an objective standard.

A few states, including California, look to the nature of the insured’s act to determine whether there was an occurrence. The test “refers to the conduct of the insured for which liability is sought to be imposed on the insured.”[75] The California anti-cyberbullying statute defines cyberbullying as “any severe or pervasive physical or verbal act or conduct.”[76] Thus, depending on the allegations in the complaint, insurers may be able to assert that the insured’s conduct does not constitute an occurrence.

An increasingly rare approach is to evaluate an occurrence based on the standpoint of the third-party claimant. In Louisiana, for example, where the policy does not define “occurrence” with reference to anyone’s standpoint, Louisiana evaluates whether there was an occurrence from the standpoint of the third-party claimant/victim.[77] The HO3 form’s definition of “occurrence,” quoted above, does not refer to anyone’s standpoint; however, Louisiana’s anti-cyberbullying statute requires “malicious and willful intent” on the part of the alleged perpetrator.[78] Insurers may wish to evaluate the allegations and policy language carefully to determine whether the alleged conduct is intentional.

As noted, cyberbullying may often consist of a repeated or ongoing course of conduct, tending to suggest that the conduct was intentional and that there is no occurrence and/or that the “expected or intended” exclusion bars coverage. Some commentators have noted that the exclusion, in Form HO 24 82, for personal injury “[c]aused by or at the direction of an ‘insured’ with the knowledge that the act would violate the rights of another and would inflict ‘personal injury’” should bar coverage for cyberbullying because ISO has amended the definition of “personal injury” to include an oral or written publication “in any manner.”[79] “By amending its wording, the ISO has removed any doubt that this endorsement is intended to cover remarks made in emails, blog postings, and social networks.”[80]

Form HO3’s exclusion for “bodily injury” “[a]rising out of . . . physical or mental abuse” may preclude coverage, depending on the facts of the claim. In addition, some homeowners’ policies bar coverage for criminal acts. Insurers may wish to evaluate whether the insured has been charged with, or convicted of, any crime in connection with the cyberbullying, to determine whether a criminal acts exclusion may apply. States vary as to whether a criminal plea, conviction, or acquittal is binding in subsequent civil actions,[81] which may also affect the coverage determination.

Homeowners’ Umbrella Policy Policies
With respect to homeowners’ umbrella liability policies, the American Association of Insurance Services, Inc. (AAIS) has drafted an “electronic aggression” exclusion, added to its base umbrella policy effective October 1, 2011 in most states.[82] The exclusion, so named because the CDC employs the term “electronic aggression,”[83] bars coverage for the following:

“Bodily injury,” “personal injury,” or “property damage” that arises out of electronic aggression, including but not limited to harassment or bullying committed:

a.         by means of an electronic forum, including but not limited to a blog, an electronic bulletin board, an electronic chat room, a gripe site, a social networking site, a web site, or a weblog: or
b.         By other electronic means, including but not limited to email, instant messaging, or text messaging.[84]

 AAIS defines “electronic aggression” as follows:

Including but not limited to harassment or bullying committed by means of an electronic forum, including but not limited to a blog, an electronic bulletin board, an electronic chat room, a gripe site, a social networking site, a website, or a weblog; or by other electronic means, including but not limited to email, instant messaging, or text messaging.[85]

No published opinion has yet construed this exclusion.

A Policyholder’s Perspective: The AAIS electronic aggression exclusion was only recently developed and filed. According to AAIS, it is part of a comprehensive revision to the AAIS Personal Umbrella Program.[86] Policyholders therefore should carefully review their policies to determine whether they even contain such a provision.

The AAIS electronic aggression exclusion was “designed to protect insurers from exposure to claims arising from willful behavior.”[87] The exclusion therefore “maintains the existing intent of liability coverage.”[88] It remains to be seen how courts, analyzing application of the exclusion, will perceive youthful offenders’ intentions in the context of a rapid, if not real-time, thoughtless exchange with others. As AAIS recognized in introducing the electronic aggression exclusion, courts analyzing coverage will likely consider the involved child’s age in determining whether an alleged act is intentional or accidental.[89] Generally speaking, courts have employed the “rule of sevens:”

A child aged seven or under was considered to be too immature to commit a truly intentional tort;

A child aged 8–14 enjoyed a rebuttable presumption of such immaturity; and

A minor older than 14 was considered capable of committing an intentional tort but was not presumed to have done so.[90]

No matter the youthful offender’s age, the electronic aggression exclusion is not applicable when an insurer cannot demonstrate an insured’s intent to harm.

An Insurer’s Perspective: Insurers can assert that the AAIS electronic aggression exclusion is clearly written and should bar coverage for allegations of cyberbullying.[91] Moreover, the phrase “arising out of” is broadly construed, even in exclusions. “It is settled that this language does not import any particular standard of causation or theory of liability into an insurance policy. Rather, it broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.”[92] For that reason, insurers can argue that this exclusion bars coverage for allegations of bodily injury, personal injury, or property damage that are not in and of themselves cyberbullying but that arose out of cyberbullying.

Other Allegations
Policyholders and insurers alike should note that the underlying complaint may contain allegations that do not arise out of cyberbullying or as to which cyberbullying or other exclusions do not bar coverage. For example, allegations of defamation may be potentially covered. Both sides may wish to consider whether coverage exists because in many states, the presence of a single potentially covered cause of action may mean that the insurer must defend the entire underlying action.[93] Because insurers could have a duty to defend such allegations, both sides may wish to consider whether coverage may exist for such allegations.


Parents and insurers face increasing risks relating to cyberbullying because social media have become many children’s preferred after-school activity. A recent survey revealed that as many as 38 percent of all children on Facebook are under 13, despite Facebook’s suggested guidelines and restriction against registration of users under 13.[94] Up to 4 percent of the children on Facebook are reported to be under six years old.[95] Of those surveyed, 30 percent of the children used Facebook for more than two hours each day.[96] Although over half of the parents of these children reported monitoring their children’s online activities, approximately 17 percent conceded that they did not.[97]

Unlike traditional bullying, the unkind words once exchanged on playgrounds are now preserved in online posts, to be read and re-read. The taunting can engage other classmates, escalating the campaign against the victim, who may become the subject of comments from those they know and those they do not. In light of the exposures, homeowners should evaluate their risks and read their policies carefully for coverage they require, before buying homeowners’ insurance. Insurers may wish to evaluate their products, as well as claims presented to them, because cyberbullying, along with negligent supervision by some parents, appears to be a risk that is here to stay.

Keywords: bodily injury, choice of law, defamation, electronic aggression, emotional distress, expected or intended, intent, invasion of privacy, negligent entrustment, negligent supervision, occurrence, personal injury, vicarious liability

Rina Carmel and Barbora Pulmanova are with Musick, Peeler & Garrett LLP, Los Angeles. Sherilyn Pastor is with McCarter & English, Newark, New Jersey. Nina Golden is an associate professor in the Department of Business Law at California State University, Northridge, California.


[1] The opinions expressed herein are those of the authors and do not necessarily reflect the opinions of their firms or clients. Sherilyn Pastor, who represents policyholders, wrote the sections entitled “A Policyholder’s Perspective.” Rina Carmel, who represents insurers, wrote the sections entitled “An Insurer’s Perspective.”

[2] CDC, Understanding Bullying: Fact Sheet (2011) (last visited Sept. 3, 2012).
[3] CDC, supra note 2.
[4] STOP Cyberbullying, What Is Cyberbullying, Exactly? (last visited Sept. 3, 2012).
[5] STOP Cyberbullying, supra note 4.
[6] E.g., N.C. Gen. Stat. § 14-458.1(a)(2)(b) (“breaking into a password protected account or stealing or otherwise accessing passwords” “[w]ith the intent to intimidate or torment a minor or the minor’s parent or guardian” is misdemeanor).
[7] C. David-Ferdon et al., Electronic Media and Youth Violence: A CDC Issue Brief for Researchers 4 (CDC 2009) (last visited Sept. 3, 2012).
[8] J.G. Browning et al., The Impact of Social Media on Personal Lines 4 (Swiss Re 2011) (last visited Sept. 3, 2012); C. Kingdollar, “Increasing Personal Injury Exposures—Nothing to LOL About,” Ins. Issues,  Apr. 2012, (last visited Sept. 3, 2012).
[9] Depending on who defendants to a cyberbullying suit may be, other types of policies may be implicated, including commercial general liability policies, educators’ errors and omissions policies, and cyberliability policies.
[10] D.C. v. R.R., 182 Cal. App. 4th 1190 (Cal. Ct. App. 2010).
[11] D.C. v. R.R., 182 Cal. App. 4th at 1199.
[12] D.C. v. R.R., 182 Cal. App. 4th.
[13] D.C. v. R.R., 182 Cal. App. 4th at 1201–2.
[14] D.C. v. R.R., 182 Cal. App. 4th at 1199–1202.
[15] D.C. v. R.R., 182 Cal. App. 4th at 1208.
[16] D.C. v. R.R., 182 Cal. App. 4th at 1201.
[17] Browning, supra note 8, at 3.
[18] Kingdollar, supra note 8, at 5–6.
[19] S. Hinduja & J. Patchin, Cyberbullying Research Ctr.,Cyberbullying Research Summary: Cyberbullying and Suicide(2010) (last visited Sept. 13, 2012).
[20]The Truth about Bullying,” (May 6, 2009) (last visited Sept. 13, 2012).
[21] D.C. v. R.R., 182 Cal. App. 4th 1190; “Victims of Cyberbullying Fight Back in Lawsuits,” Associated Press, Apr. 26, 2011 (last visited Sept. 13, 2012).
[22] D.C. v. R.R., 182 Cal. App. 4th at 1190.
[23] If cyberbullying overlaps with discrimination or harassment of a person belonging to a protected category, federal and state civil rights statutes may apply. Such federal statutes include Title VI (race, color, or national origin) and Title IX (sex and gender) of the Civil Rights Act, Titles II and III of the Americans with Disabilities Act, section 504 of the Rehabilitation Act, and Individuals with Disabilities in Education Act.
[24] H.R. 1966, 111th Cong. (2009–2010) (last visited Sept. 11, 2012).
[25] Links to state anti-bullying and anti-cyberbullying statutes are available on, a website managed by the U.S. Department of Health and Human Services  (last visited Sept. 11, 2012). Hawaii’s anti-cyberbullying statute does not go into effect until July 1, 2030, and thus does not appear in the Hawaii Revised Statutes. H.B. 688, 26th Leg. (Haw. 2011). The jurisdictions that have not enacted anti-cyberbullying laws are Alaska, Colorado, Connecticut, Montana, Puerto Rico, and Texas; Montana is the only state that has not enacted a statute against traditional bullying. See (last visited Sept. 11, 2012).
[26] In a recent case, the claimant alleged that the defendant school district violated Connecticut’s statute against traditional bullying by not establishing a school anti-bullying policy as required by statute; the court held that the statute did not create a private right of action. Dornfried v. Berlin Bd. of Educ., No. CV064011497S, 2008 WL 5220639 (Conn. Super. Ct. Sept. 26, 2008) (unpublished).
[27] Wash. Rev. Code § 28A.300.285(2).
[28] La. Rev. Stat. § 40.7(A).
[29] Utah Code Ann. § 53A-11a-102(3).
[30] Cal. Educ. Code § 48900(r)(1) (cyberbullying must “ha[ve] or can be reasonably predicted to have” effects on the claimant); 105 Ill. Comp. Stat. 5/27-23.7 (same).
[31] Ala. Code § 16-28B-3(2).
[32] N.D. Cent. Code §§ 15.1-19-17(1)(a)(1), 15.1-19-17(2).
[33] N.H. Rev. Stat. §§ 193-F:3(I)(a), 193-F:3(II).
[34] Or. Rev. Stat. § 339.351(2)(c).
[35] N.C. Gen. Stat. § 14-458.1(a)(2)(c).
[36] Links to anti-cyberbullying policies promulgated by states, or model policies suggested by the state, are available on the website (last visited Sept. 11, 2012). The states that do not require school districts to implement anti-cyberbullying policies are Arizona, Illinois, Indiana, Kansas, Minnesota, North Dakota, Tennessee, and Texas.
[37] J.D. Barge, State School Superintendent, Policy for Prohibiting Bullying, Harassment and Intimidation 12 (Ga. Dep’t of Educ. Aug. 24, 2011).
[38] E.g., Or. Rev. Stat. 339.364; Dornfried v. Berlin Bd. of Educ., No. CV064011497S, 2008 WL 5220639 (Conn. Super. Ct. Sept. 26, 2008) (unpublished).
[39] David-Ferdon, supra note 7, at 9 (citing J. Wolak et al., “Does On-Line Harassment Constitute Bullying? An Exploration of Online Harassment by Known Peers and Online Only Contacts,” J. Adolescent Health (2007 Suppl. S51-8)).
[40] L. Jankowski, “Determining Liability for Cyberbullying,” Ins. Insight, Dec. 16, 2011 (last visited Sept. 3, 2012).
[41] Jankowski, supra note 40.
[42] ISO Form No. HCPC HO 03 12 10 (follow link entitled “HCPC HO 03 12 10 Special Form”) (last visited Sept. 3, 2012).
[43] ISO Form No. HCPC HO 03 12 10, at 19.
[44] ISO Form No. HCPC HO 03 12 10, at 2.
[45] ISO Form No. HCPC HO 03 12 10, at 1.
[46] ISO Form No. HCPC HO 03 12 10, at 2.
[47] ISO Form No. HCPC HO 03 12 10, at 1.
[48] ISO Form No. HCPC HO 03 12 10, at 19.
[49] ISO Form No. HCPC HO 03 12 10, at 21.
[50] Kingdollar, supra note 8.
[51] Browning, supra note 8, at 10.
[52] See, e.g., Nat’l Cas. Co. v. Great Sw. Fire Ins. Co., 833 P.2d 741, 747 (Colo. 1992); Garvis v. Emp’rs Mut. Cas. Co., 497 N.W.2d 254, 257 (Minn. 1993); Trinity Univ. Ins. Co. v. Cowan, 945 S.W.2d 819 (Tex. 1997).
[53] See, e.g., Am. States Ins. Co. v. Cooper, 518 So. 2d 708 (Ala. 1987); First Ins. Co. of Haw., Ltd. v. Lawrence, 881 P.2d 489 (Haw. 1994), reconsideration denied, 884 P.2d 1149 (Haw. 1994); Pekin Ins. Co. v. Hugh, 501 N.W.2d 508 (Iowa 1993); Crabtree v. State Farm Ins. Co., 632 So. 2d 736 (La. 1994); Lipsky v. State Farm Mut. Auto. Ins., 34 A.3d 213 (Pa. Super. Ct. 2011) (table disposition), appeal granted, 41 A.3d 1288 (Pa. 2012).
[54] See, e.g., Quincy Mut. Fire Ins. Co. v. Abernathy, 469 N.E.2d 797 (Mass. 1984) (reversing summary judgment for insurer because intentional act exclusion was not necessarily applicable where a youth threw a rock at a car, breaking the windshield and injuring a back seat passenger; that the youth threw a rock did not resolve his state of mind and whether he intended to cause injury or knew with substantial certainty he would, or whether he merely intending to frighten the car’s occupants and threw the rock as part of an adolescent prank).
[55] See, e.g., Quincy Mutual Fire Insurance Co., 469 N.E.2d 797.
[56] See, e.g., Hanover Ins. Co. v. Talhouni, 413 Mass. 781, 604 N.E.2d 689 (1992); Quincy Mutual Fire Insurance Co., 469 N.E.2d 797; accord 7A J.A. Appleman, Insurance Law and Practice § 4492.02 (rev. ed. 1979).
[57] See Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 496 N.E.2d 158 (Mass. 1986) (parent’s coverage for alleged negligent supervision not excluded as arising from use of vehicle, given severability provision).
[58] See ISO Form No. HO 00 03 10 00. In some standard form homeowners’ policies (particularly earlier versions), courts held that use of the words “the insured” in the expected or intended injury exclusion provided for a separation of insureds. Parents responsible for the acts of their children therefore had coverage under their homeowners’ policy because they were not “the” insured whose allegedly intentional act supposedly caused injury. Some policies now provide that “when the word ‘an’ immediately precedes the word ‘insured,’ the words ‘an insured’ together mean one or more ‘insureds’.” These provisions, according to insurers, no longer provide for a separation of insureds.
[59] See, e.g., Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 607 A.2d 1255 (N.J. 1992) (when multiple alternative causes of action are stated, duty to defend will continue until every covered claim is eliminated).
[60] Kingdollar, supra note 8, at 1, 4.
[61] Jankowski, supra note 40.
[62] Kingdollar, supra note 8 (discussing ISO Form HO 24 10 05 11).
[63] Kingdollar, supra note 8 (discussing ISO Form HO 24 10 05 11).
[64] Browning, supra note 8, at 8.
[65] See Dornfried v. Berlin Bd. of Educ., No. HHBCV064011497S, 2010 WL 4352198 (Conn. Super. Ct. Oct. 4, 2010) (unpublished) (questions of fact existed as to intent in alleged bullying of high school student by fellow students).
[66] D.C. v. R.R., 182 Cal. App. 4th 1190.
[67] D.C. v. R.R., 182 Cal. App. 4th at 1218 (emphasis added).
[68] D.C. v. R.R., 182 Cal. App. 4th at 1242 n.7 (Rothschild, J., dissenting); Cal. Educ. Code § 48900(r)(1).
[69] Compare AMCO Ins. Co. v. Haht, 490 N.W.2d 843, 845 (Iowa 1992) (11-year-old who threw ball at another boy, killing him, could not form intent), with Am. Family Mut. Ins. Co. v. De Groot, 543 N.W.2d 870 (Iowa 1996) (13-year-old babysitter who hit infant’s head on floor three times, killing him, formed intent); see N.M. v. Daniel E., 2008 UT 1, ¶ 14, 175 P.3d 566 (average 8-year-old insured’s lack of experience makes him or her unable to appreciate potential danger of hitting unintended part of third-party claimant’s body).
[70] Allstate Ins. Co. v. Dillard, 859 F. Supp. 1501, 1503, 1504 n.4 (M.D. Ga. 1994) (holding that “intentional and criminal acts” exclusion bars coverage for shooting by 13-year-old if injuries are “those expected by a reasonable 13-year-old”); Allstate Ins. Co. v. Patterson, 904 F. Supp. 1270, 1284 (D. Utah 1995) (courts “look at all the surrounding facts and circumstances, including the parties’ ages, the nature of their relationship and their past experience”; 12- to 16-year-old insureds); Country Mut. Ins. Co. v. Hagan, 298 Ill. App. 3d 495, 232 Ill. Dec. 433, 698 N.E.2d 271 (Ill. App. Ct. 1998) (issue of whether minors can form intent is decided on case-by-case basis).
[71] State Farm Fire & Cas. Co. v. C.F., 812 N.E.2d 181, 184 (Ind. Ct. App. 2004) (sexual molestation by 12-year-old boy).
[72] E.g., State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d 1072, 1072, 1076 (Fla. 1998); Ill. Farmers Ins. Co. v. Kure, 364 Ill. App. 3d 395, 401, 301 Ill. Dec. 319, 846 N.E.2d 644 (Ill. App. Ct. 2006).
[73] Compare Farmer in the Dell Enters. Inc. v. Farmers Mut. Ins. Co. of Del., Inc., 514 A.2d 1097 (Del. 1986) (“expected or intended” exclusion barred coverage where insured minor set fire to a trash can intending to cause damage to it and then put burning trash next to building, those acts made it “entirely foreseeable” that building would be damaged), with Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So. 2d 467 (Fla. 1993) (holding where insured intended only to frighten third-party claimant with gun, but gun discharged causing serious injury, this constituted “accident”).
[74] E.g., Allstate Ins. Co. v. Herman, 551 N.E.2d 844, 846 (Ind. 1990) (where policy language so requires, Indiana employs objective standard); Allstate Ins. Co. v. Bruttig, No. 2:05-CV-1257-RCJ-PAL, 2006 WL 3248393, at *4 (D. Nev. Nov. 3, 2006) (noting that other federal courts in Nevada have applied subjective standard but concluding that Nevada does not require subjective standard).
[75] Delgado v. Interinsurance Exch. of Auto. Club of S. Cal., 47 Cal. 4th 302 (Cal. 2009) (emphasis added).
[76] Cal. Educ. Code §48900(r)(1).
[77] Doe v. Breedlove, No. 04-7, 906 So. 2d 577 (La. Ct. App. 1st Cir. Feb. 11, 2005).
[78] La. Rev. Stat. § 14:40.7.
[79] Browning, supra note 8, at 6.
[80] Browning, supra note 8, at 6.
[81] Compare Bolin v. State Farm Fire & Cas. Co., 557 N.E.2d 1084, 1087 (Ind. Ct. App. 1990) (criminal plea apparently not binding on issue of intent), with Ideal Mut. Ins. Co. v. Winker, 319 N.W.2d 289, 291–97 (Iowa 1982) (insured’s guilty plea held binding against insured in coverage action regarding same events), and State Farm Fire & Cas. Co. v. Fisher, 192 Mich. App. 371, 376, 481 N.W.2d 743 (Mich. Ct. App. 1991) (criminal conviction admissible in coverage action to determine whether insurer had duty to defend or indemnify).
[82] Browning, supra note 8; “AAIS Revises Personal Umbrella Forms to Address Cyber Bullying,”, June 9, 2011 (last visited Sept. 3, 2012).
[83] L. Khalfani-Cox, “Home Insurers Kick Around Cyberbully Coverage,”, June 21, 2011 (last visited Sept. 5, 2012).
[84] Browning, supra note 8, at 10 (quoting the AAIS Personal Umbrella Form PU 0001 10 11, Exclusion 10).
[85] Browning, supra note 8, at 10.
[86] AAIS, Parents, Beware; Insurers, Too: Liability for Acts of Children Grows in Unexpected Ways (2012)
[87] AAIS, supra note 86.
[88] AAIS, supra note 86.
[89] AAIS, supra note 86.
[90] AAIS, supra note 86.
[91] E.g., Haynes v. Farmers Ins. Exch., 32 Cal. 4th 1198, 1216 (Cal. 2004) (exclusions that are “conspicuous, plain, and clear” are enforceable).
[92] E.g., Acceptance Ins. Co. v. Syufy Enters., 69 Cal. App. 4th 321, 328 (Cal. Ct. App. 1999).
[93] E.g., Buss v. Superior Court, 16 Cal. 4th 35 (Cal. 1997).
[94]Facebook Safety for Kids: Social Networking Has Become a Hobby for even the Youngest Children,” Minor Monitor, Mar. 14, 2012 (last visited Sept. 14, 2012).
[95] “Facebook Safety for Kids,” supra note 94.
[96] “Facebook Safety for Kids,” supra note 94.
[97] “Facebook Safety for Kids,” supra note 94.

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