September 26, 2014 Articles

Insurance Coverage for Fair Housing Act Claims

Costs incurred in Fair Housing Act cases can be significant, implicating defense and indemnity obligations under insurance policie

by Brian D. Heskamp [1]

The Fair Housing Act, 42 U.S.C. § 3601 et seq., covers a wide variety of activity that can be prosecuted by the federal government, nonprofit fair housing organizations that meet standing requirements,[2] and private individuals, or some combination of all three. Costs incurred in Fair Housing Act cases can be significant, implicating defense and indemnity obligations under insurance policies. For example, in Federal Insurance Co. v. Steadfast Insurance Co.,[3] a recent case involving coverage for Fair Housing Act claims brought by the U.S. Department of Justice against former Los Angeles Clippers owner and landlord Donald Sterling involving his refusal to rent to groups including non-Koreans[4] and families with children, defense costs exceeded $5,000,000, and settlement costs totaled $1,000,000.[5]

In Federal Insurance Co., the primary insurers provided coverage for claims of  wrongful eviction, wrongful entry, and invasion of the right of private occupancy, while the umbrella and excess insurer specifically insured against claims for discrimination.[6] The insured tendered the defense to both of its primary insurers and its umbrella insurer.[7] One of the primary insurers paid the majority of defense costs, while the umbrella insurer paid a small amount of defense costs before withdrawing.[8] In the ensuing coverage litigation, the umbrella insurer sued the primary insurers seeking a declaration that it owed no duty to defend until the primary coverage was exhausted. The primary insurers asserted cross-claims, and ultimately the parties cross-moved for summary judgment.[9] The court determined that only the umbrella insurer, which specifically insured for discrimination, was required to defend the action and that neither of the primary insurers had a duty to defend, a determination that hinged on the fact that the United States rather than an individual was the plaintiff, and the United States could not bring causes of action based on theories of wrongful eviction, wrongful entry, or invasion of the right to privacy.[10] In the end, the umbrella insurer was obligated to “drop down” and fill the gap in primary coverage with regard to the Sterling action.[11]

As noted in Federal Insurance Co., coverage for Fair Housing Act claims is possible even under a policy that does not explicitly cover discrimination. This article addresses issues that arise in the context of insurance coverage for claims involving violations of the Fair Housing Act. The importance of 42 U.S.C. § 3604 (c)—which prohibits statements and advertisements that “indicate any preference, limitation, or discrimination based on [a protected classification],” regardless of the proponent’s intent[12] —is highlighted as it is frequently alleged in fair housing cases and may help an insured avoid several coverage defenses typically asserted by an insurer. Specifically, with respect to bodily injury and property damage coverage, section 3604(c) may help an insured satisfy the definition of “occurrence” and also avoid the intended or expected injury exclusion. Regarding personal damage coverage, this provision can help an insured overcome a wrongful act or discrimination exclusion. While very few cases have specifically addressed the role of section 3604(c) in the insurance coverage context, it is frequently alleged and probably underutilized by policyholders and may provide a basis for coverage in many cases.

 

Analytical Framework

Every coverage analysis must begin with the language of an insurance policy’s insuring clause, and there may be several in a given general liability policy. The insuring clause must be satisfied for coverage to arise, and it therefore provides a useful map for analyzing coverage issues. The first coverage part in a policy, which generally covers bodily injury and property damage, usually states something like the following:

We [the insurer] will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages * * * *

This insurance applies to “bodily injury” and “property damage” only if: (1) The bodily injury or “property damage” is caused by an “occurrence” that takes place in the coverage territory”; and (2) The “bodily injury” or “property damage” occurs during the policy period.”[13]

Boiled down, this insuring clause for bodily injury and property damage comprises some deceptively simple questions:

·  Is there a covered injury: property damage or bodily injury?

·  Is the injury caused by an occurrence?

·  Does the relief requested constitute damages?[14]

Many policies also provide coverage for personal and advertising injury, which is accomplished through the inclusion of another coverage part in the policy. This coverage part typically reads as follows:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal injury” or “advertising injury” to which this coverage part applies. . . .

b. This insurance applies to:

(1) “Personal injury” caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you;

(2) “Advertising injury” caused by an offense committed in the course of advertising your goods, products or services; but only if the offense was committed in the “coverage territory” during the policy period.[15]

The enumerated offenses that trigger coverage may or may not include discrimination but often include wrongful eviction and invasion of the right to privacy.[16] The advantage of this coverage part with respect to claims under the Fair Housing Act is that it typically eliminates the thorny issues involved in the definition of “occurrence”[17] and generally does not involve the same exclusions applicable to the coverage part for bodily injury and property damage.[18]

Assuming that a given coverage part’s criteria are satisfied, insurers typically argue that Fair Housing Act claims are subject to certain exclusions, several of which are addressed in this article.

Bodily Injury, Property Damage, or Personal Injury?

The first question that arises in evaluating coverage for fair housing claims is whether there is an injury covered by one or more coverage parts. There are many types of cases that arise under the Fair Housing Act. They include cases involving landlords who make housing unavailable or discriminate in the terms and conditions of rental, landlords who fail to reasonably accommodate the disabled, builders and architects who fail to design and construct housing in accordance with the Fair Housing Act’s requirements for disability accessibility, illegal advertising, and mortgage and insurance redlining,[19] to name a few.[20] Fair Housing Act cases, therefore, may trigger one or more coverage parts of a typical commercial general liability (CGL) policy. Identifying the triggered coverage part is essential.

Bodily injury. Fair Housing Act claims could involve “bodily injury,” typically defined as “bodily injury, sickness or disease sustained by a person . . . ,”[21] for example, where there are instances of sexual assault.[22] More frequent, and less clear, are situations where tenants or prospective tenants claim to suffer emotional harm or psychic injury as a result of a landlord’s discrimination.[23] Consider a landlord who makes disparaging statements about an actual or prospective tenant’s race, sex, or national origin. For example, in Beliveau v. Caras,[24] the manager made a number of offensive comments to a female tenant including calling her breasts “headlights.”

Or consider a situation where a landlord misrepresents the availability of housing to a person of a different race or national origin, or denies housing to such a person and makes statements about neighbors not wanting “you people.”[25] If that person suffers some emotional or psychic harm as a result, it may be bodily injury.

Not surprisingly, courts have reached different conclusions on whether emotional or psychic harm constitutes bodily injury, and an examination of state law is required to make that determination. In Washington v. Krahn, for example, the court considered this issue and held that emotional harm was bodily injury under Wisconsin law. In that case, a fair housing organization’s testers[26] were denied rental opportunities and received false statements regarding the availability of apartments because of their race. The testers sued, alleging that as a result of the insured’s discriminatory acts, they suffered emotional distress.[27] In determining whether a duty to defend existed, the court held that under Wisconsin law, the term “bodily injury” encompassed “mental, emotional, or psychological conditions” given that a person’s “nerves and tensions” cannot be separated “from his body.”[28]

Other states are not so lenient in their interpretation of bodily injury.[29] But if a complaint alleges emotional distress accompanied by a physical manifestation, there is likely to be coverage in almost any jurisdiction.[30] Because emotional distress and psychic injury are compensable damages under the Fair Housing Act,[31] the policyholder should closely examine both the complaint filed against it and applicable state law to determine whether coverage exists under the bodily injury coverage part.

Property damage. Property damage is defined in a recent ISO form as “(a) Physical injury to tangible property, including all resulting loss of use of that property. . . ; or (b) Loss of use of tangible property that is not physically injured. . . .”[32] Litigation to date in the fair housing context under this coverage part has focused on the issue of whether harm to an insured’s economic interests may constitute property damage.[33]

For example, in Oak Ridge Park, Inc. v. Scottsdale Ins. Co., a fair housing organization sued Oak Ridge Park (ORP) on grounds that ORP discriminated against “African-American, aliens, people of mid-Eastern or [I]ndian cultures or religions, people physically unable to climb stairs, pregnant women, families with more than two children or families with children under ten years of age” by refusing to offer tours of their property to these groups.[34] ORP sought coverage and argued in part that the fair housing organization’s complaint alleged property damage because the organization alleged that it has suffered “economic losses in the nature of staff pay, and money expended for volunteer services” and sought to recover these amounts as damages from ORP.[35] The court rejected this argument, holding that the policy did not cover “purely economic losses.”[36] But this result should not be universal. The interpretation of insurance contracts is a matter of state law,[37] and courts in other jurisdictions and contexts have found that “purely economic damages” are insurable.[38]

At least one court has indicated that a potential purchaser who is denied housing could not demonstrate “property damage” based on loss of use, holding that a potential purchaser has no property interest in the property sought to be purchased.[39] There is, however, scarce case law on this issue. Current tenants or actual purchasers do have a property interest,[40] and so coverage would seem to be clear in other contexts, for example, where an existing tenant suffers some form of housing discrimination that results in an eviction or constructive eviction.

Personal and advertising injury. The “personal injury” coverage part is fertile ground for litigation of insurance disputes involving fair housing claims. This coverage part can provide a comparatively clear path to coverage because it does not implicate the definition of “occurrence”; rather, it involves injury “arising out of” one or more enumerated “offenses” which typically include the following:

 (a) False arrest, detention, or imprisonment; (b) Malicious prosecution; (c) Wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor; (d) Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; or (e) Oral or written publication of material that violates a person’s right of privacy.[41]

Some policies also include injury resulting from discrimination expressly within the definition of “personal injury.”[42] Even where a policy expressly defines personal injury as including discrimination, insurers may raise challenges. In Trammell Crow Residential Co. v. Virginia Surety Co., Inc., for example,the insured sought coverage for claims involving violations of the fair housing laws stemming from the faulty design and construction of multifamily dwellings. The insurer argued in part that there was no personal injury sufficient to trigger coverage because the fair housing organization bringing suit did not itself suffer a personal injury within the meaning of the policy. The fair housing organization, however, alleged that it suffered a diversion of resources and that its mission was frustrated as a result of the defendants’ discriminatory practices. The court rejected the insurer’s argument and held that “the policy does not require . . . that a plaintiff personally suffer physical disability discrimination.”[43] Because the plaintiff was seeking damages for personal injury, i.e., damages arising out of discrimination because of physical disability, a duty to defend existed even where the plaintiff agency uncovered the discrimination and endured harm to its mission, rather than because it had some type of physical disability.[44]

Assuming a policy does not define “personal injury” as including discrimination, claims may be covered under the “invasion of the right of private occupancy” coverage part. In Winters v. Transamerica Insurance Co.,[45] a mobile home park operator was sued for violations of the Fair Housing Act when the operator stated he would not approve rental to persons under age 55 or to anyone with small children. In retaliation, the operator began a “campaign of harassment” consisting of entering the tenants’ homes without permission, shining headlights into their homes late at night, sitting in cars outside their homes for extended periods, agitating their dogs with silent whistles, and refusing to maintain their lots. The court held that this conduct triggered coverage under the coverage part for “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises. . . .” Specifically, the court held that the “tenants’ right to private occupancy was invaded” by the defendant’s conduct.

In other contexts, depending on the particular policy language at issue and parties to the lawsuit, courts have declined to extend the “invasion of right of private occupancy” coverage part to Fair Housing Act claims for reasons including that the allegations in the complaint did not sufficiently support coverage under this part or because the government was the only party and had no right of “private occupancy.”[46] Courts appear to be split on the issue of whether this coverage part applies to prospective, as opposed to current, tenants. The answer turns on whether the coverage part specifically includes the words “that a person occupies” (see coverage part, above), what those words modify, and how the court interprets them.[47]

Occurrences and the Importance of 42 U.S.C. § 3604 (c)

Where an insured seeks coverage for bodily injury or property damage claims, the definition of “occurrence” is likely to be asserted by the insurer as a defense. The term “occurrence” is usually defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”[48] “Accident,” in contrast, usually isn’t defined.[49]

Whether an occurrence exists is a frequently litigated issue. For example, in Lloyd A. Twite Family Partnership v. Unitrin Multi Line Insurance,[50] the court addressed this issue where a person could not access an apartment building due to its improper design and construction in violation of the Fair Housing Act. The court held that even if the person suffered emotional harm that qualified as bodily injury, there was no occurrence because the injuries “occurred as a result of the design and construction of the housing units—not as a result of an accident.”[51] Whether defective construction in general constitutes an occurrence (accident) is a heavily litigated issue, and the states are split.[52] In many jurisdictions where this issue has been resolved in favor of policyholders, it may be useful to analogize to these cases in an attempt to obtain coverage for Fair Housing Act claims brought under section 3604(f)(3)(c).

More broadly, the question of whether an occurrence exists may turn on the question of what must be accidental—“the act, the injury, or both?”[53] In most jurisdictions, the focus is on whether the injury was intended; if the insured intended the act but not the resulting harm, the injury or damage is usually deemed to be the result of an accident.[54] In a typical Fair Housing Act case, the landlord usually intends the act—setting a policy that results in discrimination, speaking the words that discriminate, refusing to make a reasonable accommodation, or publishing the illegal advertisement—but may not intend or expect the resulting harm. Some courts have drawn a distinction between “disparate treatment” cases (where the intent to harm is more likely prevalent) and “disparate impact” cases (where the intent to harm may not be present).[55]

Policyholders should be keen on one of the Fair Housing Act’s unique provisions—42 U.S.C. § 3604 (c), which imposes liability on housing providers and others who make statements or publish advertisements indicating a preference, limitation, or discrimination regardless of intent.[56] Given its broad sweep, this provision is frequently asserted as a “secondary” or, in some cases, the primary claim under the Fair Housing Act.[57] Where a complaint generally alleges a violation of section 3604, such a claim may very well be present if the case involves a landlord who made any verbal or written statement to a tenant or prospective tenant, or published an ad, indicating a preference, limitation, or discrimination.[58] While there have been relatively few cases discussing the role of section 3604(c) in obtaining insurance coverage, at least one court has done so, noting that where a complaint alleges such a claim, it could be “reasonably construe[d] as alleging unintentional acts.”[59] Because no intent is required to violate this section of the Fair Housing Act, it should be easier to establish an occurrence where these claims exist. Of course, where one claim is covered, the insurer must typically defend the entire suit.[60]

Damages and Attorney Fees

Whether certain costs imposed through the judicial process are damages is another issue that arises in fair housing coverage cases. Most frequently, this happens in claims involving section 3604(f)(3)(c), where courts may impose on property owners or others the cost of fixing improperly designed or constructed property. Although courts have not directly addressed the issue of whether remediation costs for Fair Housing Act violations constitute damages for purposes of insurance coverage, courts have addressed this issue in the analogous environmental remediation context, where the Environmental Protection Agency (EPA) mandates that companies contributing to pollution at a site pay for cleanup costs. Cases involving remediation costs in the environmental cleanup context are instructive because in both situations, remediation is necessary to correct past wrongs. For example, Ohio courts and the Sixth Circuit, following the majority view, have held that environmental remediation or cleanup costs are damages for purposes of insurance coverage.[61]

The reasoning behind Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cases holding that remediation costs are damages (not merely part of typical injunctive relief) supports finding that remediation costs imposed under the Fair Housing Act similarly constitute damages. As the Wisconsin Supreme Court observed in Johnson Controls, Inc. v. Employers Insurance of Wausau,[62] “if an equitable action is providing compensation for past wrongs—if it is ‘remedial in nature’—it cannot be lumped indiscriminately with a typical injunction, because it is serving a different purpose from a typical injunction.”[63] Thus, because “the harm for which CERCLA liability attaches is based on past wrongs . . . and may be characterized as consequential damages flowing from the direct damage caused to the environment,” remediation costs are properly “damages” covered under a CGL policy.[64] Moreover, the Johnson Controls court rejected the insurer’s argument that the remediation costs should be characterized as typical injunctive relief because the relief would provide a future benefit to human health and welfare: “shifting the focus from remediating past damages to preventing future injury from contamination does not change the remedial nature of CERCLA response costs for completed past actions.”[65] Other courts have reached the same result.[66]

In line with these cases, there are several arguments policyholders can make in an attempt to obtain coverage for claims under section 3604(f)(3)(c). Like the environmental damage at issue in CERCLA-type cases, violations of the Fair Housing Act have already occurred as a result of defendants’ acts, and defendants are liable for these violations.[67] While the remediation may provide a future benefit to society and the inhabitants of the property, remediation costs are a result of past wrongs and thus are properly characterized as consequential damages flowing from defendants’ past acts. Moreover, policyholders can argue that if there is no coverage for remediation costs imposed as a result of a suit by a fair housing organization, the result would be inconsistent holdings unwarranted by the policy language. For example, claims by individual plaintiffs seeking monetary relief as a result of defendants’ illegal design or construction would be covered while claims by a fair housing organization seeking to remediate the property to correct defendants’ design or construction would not be, despite the fact that both similarly seek recovery stemming from the same wrongful act.[68]

In addition, the question of whether attorney fees are covered as damages may arise. Insureds have successfully argued that an award of attorney fees under the Fair Housing Act is not an independent claim that is to be evaluated for coverage under an insurance policy; rather, it is dependent on the success of other claims for relief and therefore can be considered an element of damages given the mandatory nature of the fee award.[69] As one court explained, “[t]he fact that the insurance Policy states that it will pay those sums the insured becomes legally obligated to pay as damages, suggests that the sums include all damages that arise due to the success of Plaintiffs’ lawsuit.”[70] Courts have also relied on the rule that ambiguous terms must be construed in favor of the insured in order to afford coverage for attorney fees where the term “damages” is not defined.[71]

The Importance of 42 U.S.C. § 3604 (c) in Overcoming Exclusions

It is a commonly accepted rule that an insurer denying coverage based on a policy exclusion bears the burden of demonstrating the applicability of the exclusion.[72] Two frequently asserted exclusions are addressed here, as well as the role of section 3604(c) in avoiding those exclusions.

The “expected or intended injury” exclusion. With respect to bodily injury and property damage claims, many policies exclude coverage for “expected or intended injuries,” and this is probably the most frequently asserted exclusion in the context of fair housing coverage. This exclusion does not generally apply with respect to the personal injury coverage part, given that the offenses enumerated are frequently—by definition—intentional in nature.[73] Courts have applied several different tests to determine whether an injury is “expected or intended”:

·  A majority two-prong test finds that an injury is intended where both (1) the insured performed an intentional act; and (2) the insured subjectively intended some harm even if the harm actually done was different from that intended.

· The minority test finds that an injury is intended where both “(1) the insured performed an intentional act; and (2) an injury resulted that is said to be the natural and probable consequence of such an act such that intent to injure can be inferred as a matter of law.”

· The third, and least frequently followed, test requires that “(1) the insured had the specific intent to act; and (2) the insured intended the specific harm that resulted.”[74]

For example, applying the minority test, an Oregon appellate court held the

natural and intended consequence of [categorically refusing to rent second floor apartments to families with children] is to cause some type of harm to the putative renter or purchaser based on his or her legally protected status. Such a claim alleges conduct from which an intention to cause harm must necessarily be inferred.[75]

Depending on which test is followed, 42 U.S.C. § 3604 (c) can be of critical importance in obtaining coverage. As stated above, this provision is frequently asserted either implicitly or explicitly in a fair housing complaint, and no intent is required to sustain such a claim. In contrast with a typical disparate treatment claim, the insured does not have to subjectively intend harm to violate 42 U.S.C. § 3604 (c).[76] Therefore, a complaint may be construed as alleging unintentional acts where claims under section 3604(c) are present.[77]

Wrongful acts exclusions. Some policies explicitly exclude “liability arising from the alleged or real acts of discrimination by [an insured] whether such discrimination is based on age, health, illness, sex, sexual preference, disability, race, country of origin or religion” from coverage under the personal and advertising liability coverage part.[78] Courts have applied this exclusion to bar fair housing claims.[79] Where such an exclusion exists, it may be difficult for an insured to obtain coverage.

Again, 42 U.S.C. § 3604 (c) is of importance because it prohibits not only statements indicating discrimination but also statements indicating illegal preferences or limitations. Courts have recognized that these are distinct criteria for liability under the Fair Housing Act, and more than one of these criteria may be satisfied by a single statement. For example, in Miami Valley Fair Housing Center, Inc. v. The Connor Group,[80] the U.S. Sixth Circuit Court of Appeals noted that section 3604(c) was broader than a state statute prohibiting merely discrimination, holding: “The Wisconsin Open Housing Act was a much narrower statute that prohibited only actual discrimination, unlike the Fair Housing Act, which broadly prohibits any ‘preference, limitation, or discrimination . . . .’”[81] Given the rule that any ambiguity in an insurance contract is to be construed strictly against the insurer, where a statement indicates an impermissible preference or limitation, it should fall outside the narrow scope of an exclusion covering merely discrimination.[82]

Conclusion

Any person or business with an insurance policy that receives a complaint alleging Fair Housing Act violations should engage in an examination of the policy’s terms and conditions and, if necessary, timely notify the insurance carrier of the claim. A close examination of state law will likely be necessary to determine whether coverage exists. 42 U.S.C. § 3604 (c) is of particular importance for insureds in obtaining coverage for Fair Housing Act claims given that (1) with respect to bodily injury and property damage coverage, section 3604(c) may help an insured satisfy the definition of “occurrence” and also avoid the intended or expected injury exclusion, given that no subjective intent is necessary to violate this statutory provision; and (2) regarding personal injury coverage, this provision can help an insured overcome a wrongful act or discrimination exclusion because the statute covers not only statements that indicate discrimination but also statements that indicate an impermissible preference or limitation. While few cases have specifically addressed the role of section 3604(c) in the insurance coverage context, it is probably underutilized by policyholders and may warrant a closer look in many instances.

Keywords: litigation, insurance, coverage, Fair Housing Act, discrimination, property damage, bodily injury, personal and advertising injury, wrongful acts exclusions

Brian Heskamp is with Thacker Martinsek, LPA, in Cleveland.


 

[1] Brian Heskamp is a litigation attorney with the firm Thacker Martinsek, LPA, in Cleveland. He has litigated both insurance coverage cases and cases involving claims under the Fair Housing Act. The expertise, insight, and advice of both Joseph Thacker and Diane Citrino with respect to insurance coverage and fair housing cases, respectively, were instrumental to this article.
[2] Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 576–77 (6th Cir. 2013) (discussing standing requirements for fair housing organization).
[3] Federal Insurance Co. v. Steadfast Insurance Co. 209 Cal. App. 4th 668 (Cal. Ct. App. 2d Dist. 2012).
[4] The landlord apparently preferred renting to Korean tenants as opposed to certain other groups.
[5] Federal Ins. Co., 209 Cal. App. 4th at 672.
[6] Federal Ins. Co., 209 Cal. App. 4th at 671.
[7] Federal Ins. Co., 209 Cal. App. 4th at 673.
[8] Federal Ins. Co., 209 Cal. App. 4th. at 672.
[9] Federal Ins. Co., 209 Cal. App. 4th at 677–78.
[10] Federal Ins. Co., 209 Cal. App. 4th at 684–85.
[11] Federal Ins. Co., 209 Cal. App. 4th at 685.
[12] Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 577 (6th Cir. 2013) (“Subjective intent to discriminate is not required to establish a violation of section 3604.”).
[13] ISO Form CG 00 01 12 04. See 3-18 Jeffrey E. Thomas, New Appleman on Insurance § 18.02 (2014).
[14] 3-16 New Appleman on Insurance § 16.09[2][a][i] (2014).
[15] ISO Form CG 00 01 11 88. See 3-19 New Appleman on Insurance § 19.02 (2014).
[16] Compare Trammell Crow Residential Co. v. Virginia Sur. Co., 643 F. Supp. 2d 844, 848–49 (N.D. Tex. 2008) (policy stated that “‘Personal injury’ means injury . . . arising out of . . . Discrimination because of race, religion, age, sex or physical disability, but only if such discrimination is not directly or indirectly related to the employment, prospective employment or termination of employment of any person or persons by any insured”), with USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 195 (3d Cir. 2003) (policy defined personal injury as including wrongful eviction and invasion of the right to privacy, but excluded discrimination).
[17] Am. Guar. & Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 611–12 (5th Cir. 2001) (“Coverage B personal injury liability insurance differs from Coverage A bodily injury and property damage insurance in at least two important ways. First, unlike Coverage A, Coverage B may be triggered without proof of an accidental occurrence. Instead, Coverage B is activated by the commission of certain specified offenses during the policy period.”). See also generally 3-19 New Appleman on Insurance § 19.01 (2014) (“[U]nlike liability coverage for property damage or bodily injury under Coverage A, which typically responds to occurrences or accidents, the “occurrence” definition does not apply to Coverage B [the “personal injury” coverage].”). But note that, while unusual, certain policies may subject “personal injury” coverage to the definition of occurrence. See City of Myrtle Beach v. United Nat’l Ins. Co., 739 F. Supp. 2d 876, 880 (D.S.C. 2010) (the company agreed to pay “all sums which the ASSURED is legally obligated to pay . . . on account of PERSONAL INJURY, BODILY INJURY including death at any time resulting therefrom . . . and/or PROPERTY DAMAGE or the loss of use thereof, arising out of any OCCURRENCE”).
[18] See Silverball Amusement, Inc. v. Utah Home Fire Ins. Co., 842 F. Supp. 1151, 1158 (W.D. Ark. 1994) (“The policy provides two different types of coverage, each one defined in separate sections of the policy and each section having its own separate exclusions: one coverage is for ‘personal injury,’ and one is for ‘bodily injury and property damage.’”).
[19] “[C]ourts have construed the phrase ‘otherwise make unavailable or deny’ in subsection (a) [of 42 U.S.C. § 3604] to encompass mortgage ‘redlining,’ insurance redlining, racial steering, exclusionary zoning decisions, and other actions by individuals or governmental units which directly affect the availability of housing to minorities.” Bloch v. Frischholz, 587 F.3d 771, 777 (7th Cir. 2009). “Redlining refers to an unlawful practice of denying services (such as offering mortgage loans) to defined (‘redlined’) neighborhoods within a metropolitan area.” Christian v. Generation Mortg. Co., No. 12 C 5336, 2013 U.S. Dist. LEXIS 69855, at *2 (N.D. Ill. May 16, 2013).
[20] See generally Robert G. Schwemm, Housing Discrimination, Law and Litigation (2010) (outlining various types of conduct subject to the Fair Housing Act’s prohibitions).
[21] ISO Form CG 00 01 12 04. See 3-18 New Appleman on Insurance § 18.02 (2014).
[22] See, e.g., Fair Hous. Council v. Penasquitos Casablanca Owner’s Ass’n, 381 F. App’x 674, 676 (9th Cir. 2010); United States v. Katz, No. 10 Civ. 3335, 2011 U.S. Dist. LEXIS 59159 (S.D.N.Y. June 2, 2011); Am. Nat’l Ben. Ins. Co. v. Jackson, 203 F. Supp. 2d 674 (S.D. Miss. 2001).
[23] These injuries are compensable under the Fair Housing Act. For example, the Fair Housing Act protects “against [the] psychic injury caused by discriminatory statements made in connection with the housing market.” United States v. Space Hunters, Inc., 429 F.3d 416, 424–25 (2d Cir. 2005) (quoting Robert G. Schwemm, “Discriminatory Housing Statements and § 3604(c),” 29 Fordham Urb. L.J. 187, 250 (2001), and citing Dep’t of Hous. & Urban Dev. ex rel. Stover v. Gruzdaitis, No. 02-96-0377-8, HUD ALJ LEXIS 39, at *3 (Aug. 14, 1998) (HUD ALJ ) (holding that section 3604(c) protects the right to inquire about the availability of housing “without being subjected to racially discriminatory statements”)).
[24] Beliveau v. Caras, 873 F. Supp. 1393 (C.D. Cal 1995).
[25] See, e.g., Washington v. Krahn, 440 F. Supp. 2d 911 (E.D. Wis. 2006).
[26] “‘[Testers]’ are “individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful [practices].” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982). The “tests” conducted by testers are typically coordinated and organized by fair housing organizations, who receiving funding from HUD or other sources. Testers have standing to sue in their own right: “A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act’s provisions. That the tester may have approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home, does not negate the simple fact of injury within the meaning of § 804(d).” Havens Realty Corp.,455 U.S at 373–74.
[27] Krahn, 440 F. Supp. 2dat 913.
[28] Krahn, 440 F. Supp. 2d at 913. See also Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 512  (Iowa 1993) (holding that “any attempt to distinguish between ‘physical’ and ‘psychological’ injuries just clouds the issue[;] every emotional disturbance has a physical aspect and every physical disturbance has an emotional aspect”).
[29] See generally 3-18 New Appleman on Insurance § 18.02[3] (2014) (discussing the various states deciding the issue of whether “bodily injury” encompasses “emotional distress”).
[30] See 3-18 New Appleman on Insurance § 18.02[3] (2014).
[31] The Fair Housing Act is generally construed according to tort principles, and “psychic injury” has been specifically recognized as compensable harm. United States v. Space Hunters, Inc., 429 F.3d 416, 424 (2d Cir. 2005) (“The statute also protects against the ‘psychic injury’ caused by discriminatory statements made in connection with the housing market.”).
[32] ISO Form CG 00 01 12 04. 3-18 New Appleman on Insurance § 18.02 (2014).
[33] See, e.g., Oak Ridge Park, Inc. v. Scottsdale Ins. Co., No. 98-3348, 1999 U.S. Dist. LEXIS 14645 (E.D. La. Sept. 17, 1999) (finding no property damage in a suit alleging that Oak Ridge told its employees that buyers could not be African Americans, pregnant women, families with young children, or people of mid-Eastern or Indian cultures); Commercial Union Ins. Co. v. Image Control Prop. Mgmt., 918 F. Supp. 1165 (N.D. Ill. 1996) (finding no property damage in a suit by parents of disabled person who was refused housing, where parents argued that they lost “physical financial and emotional independence” due to defendants’ housing discrimination against their disabled child, and where broker argued that she lost commissions as a result of defendants’ conduct).
[34] Oak Ridge Park, Inc., 1999 U.S. Dist. LEXIS 14645, at *8.
[35] Oak Ridge Park, Inc., 1999 U.S. Dist. LEXIS 14645, at *13.
[36] Oak Ridge Park, Inc., 1999 U.S. Dist. LEXIS 14645, at *13–14.
[37] Telxon Corp. v. Fed. Ins. Co., 309 F.3d 386, 391 (6th Cir. 2002).
[38] IMG Worldwide, Inc. v. Westchester Fire Ins. Co., No. 13-3832, 2014 U.S. App. LEXIS 13703 (6th Cir. July 15, 2014) (the jury’s finding that “purely economic damages” constituted property damage was not contrary to Ohio law because under Ohio law purely economic damages are insurable).
[39] Image Control Property Management, 918 F. Supp. at 1171 n.9.
[40] For example, under Ohio law “tenants holding leasehold estates have a recognized property interest.” Jones v. City of Norwood, No. C-120237, 2013 Ohio 350, ¶ 58 (Ohio Ct. App. 1st Dist. 2013).
[41] 3-19 New Appleman on Insurance § 19.04[1] (2014) (citing 1986 and 1988 ISO forms).
[42] See Fed. Ins. Co. v. Steadfast Ins. Co., 209 Cal. App. 4th 668 (Cal. Ct. App. 2d Dist. 2012); Trammell Crow Residential Co. v. Va. Sur. Co., Inc., 643 F. Supp. 2d 844, 848–49 (N.D. Tex. 2008) (policy provided that “‘Personal injury’ means injury arising out of . . . Discrimination because of race, religion, age, sex or physical disability, but only if such discrimination is not directly or indirectly related to the employment, prospective employment or termination of employment of any person or persons by any insured”).
[43] Trammell Crow Residential Co., 643 F. Supp. 2d at 851.
[44] Trammell Crow Residential Co., 643 F. Supp. 2d at 852 .
[45] No. 98-2000, 1999 U.S. App. LEXIS 21632 (10th Cir. 1999).
[46] See Essex Ins. Co. v. Harris, No. 4:09CV2071, 2011 U.S. Dist. LEXIS 113421 (E.D. Mo Sept. 30, 2011) (no coverage under “invasion of right of private occupancy” coverage part where landlord came to tenants apartment uninvited and made unwelcome sexual advances and refused to leave because there were no allegations of “forced entry, trespassing, or unauthorized entry”); Federal Insurance Co., 209 Cal. App. 4th 668 (no coverage where U.S. government, as opposed to private tenants, brought the action because the federal government had no right of “occupancy”).
[47] See Rosenberg Diamond Dev. Corp. v. Wausau Ins. Co., 326 F. Supp. 2d 472, 477–78 (S.D.N.Y. 2004) (no coverage for prospective tenants under this coverage part where it contained the words “that a person occupies”); Oak Ridge Park, Inc. v. Scottsdale Ins. Co., No. 98-3348, 1999 U.S. Dist. LEXIS 14645, *14 n.7 (E.D. La. Sept. 17, 1999) (“The courts are split on the issue of whether the personal injury policy provisions apply to prospective tenants.”).
[48] ISO Form CG 00 01 12 04; 3-18 New Appleman on Insurance § 18.02[6] (2014).
[49] 3-18 New Appleman on Insurance § 18.02[6] (2014).
[50] Lloyd A. Twite Family Partnership v. Unitrin Multi Line Insurance, 2008 MT 310, 192 P.3d 1156 (Mont. 2008).
[51] Lloyd A. Twite Family Partnership, 192 P.3d at 1160.
[52] See 3-18 New Appleman on Insurance § 18.02[6][d] (“A large number of courts that have addressed this issue have determined that when faulty workmanship damages the work itself, the faulty workmanship is not an accident and, therefore, not an ‘occurrence.” . . . [But] an almost equal number of courts have concluded that faulty construction is an accident and so does constitute an “occurrence” . . . [because] although the construction was a deliberate act, the fact that it was done negligently was not.”).
[53] 3-18 New Appleman on Insurance § 18.02[6][c].
[54] 3-18 New Appleman on Insurance § 18.02[6][c]. See also, e.g., Commercial Union Ins. Co. v. Image Control Prop. Mgmt., 918 F. Supp. 1165, 1169 (N.D. Ill. 1996) (“In determining whether a complaint sufficiently alleges an occurrence, the focus at all times, under Illinois law, is whether the injury was expected or intended by the defendants, not whether the acts of the defendants were performed intentionally.”) (internal quotations omitted, emphasis in original).
[55] See, e.g., Groshong v. Mutual of Enumclaw Ins. Co., 143 Or. App. 450 , 923 P.2d 1280, 1286 (Or. Ct. App. 1996) (observing that unlike a disparate impact claim, “which asserts that the application of a facially neutral practice or policy has resulted in some discriminatory effect,” a disparate treatment claim “alleges conduct from which an intention to cause harm must necessarily be inferred”); Rosenberg Diamond Dev. Corp. v. Wausau Ins. Co., 326 F. Supp. 2d 472, 475–76 (S.D.N.Y. 2004) (noting the “significance of the distinction between disparate impact and disparate treatment on the application of the Policy’s ‘occurrence’ requirement”).
[56] Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 577 (6th Cir. 2013).
[57] See, e.g., Harris v. Itzhaki, 183 F.3d 1043, 1048 (9th Cir. 1999) (section 3604(c) claim asserted in addition to other claims where agent told staff in front of African American tenant, “Owners don’t want to rent to Blacks”); Ragin v. N.Y. Times Co., 923 F.2d 995 (2d Cir. 1991) (section 3604(c) claim alleged in context of housing advertising).
[58] See, e.g., Travelers Indem. Co. of Am. v. Jim Coleman Auto. of Columbia, 236 F. Supp. 2d 513, 516 (D. Md. 2002) (“It is the substance of the underlying claim, not its label, that controls in duty-to-defend and coverage cases.”).
[59] See, e.g., Washington v. Krahn, 440 F. Supp. 2d 911, 914 (E.D. Wis. 2006) (“Section 3604(d) resembles § 3604(c), which relates to publishing an advertisement indicating a prohibited preference, and it is unnecessary to prove subjective intent to establish a violation of § 3604(c). . . . Thus, plaintiffs’ allegation that the insureds violated § 3604(d) may be reasonably interpreted as alleging unintentional conduct. . . .”).
[60] See, e.g., James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1277 (11th Cir. 2008) (“[I]f a complaint alleges multiple grounds for liability and at least one claim is within the insurance coverage, even if other claims are not, the insurer is obligated to defend the entire suit.”).
[61] Anderson Dev. Co. v. Travelers Indem. Co., 49 F.3d 1128 (6th Cir. 1995) (construing Michigan law, remediation or cleanup costs mandated by the EPA constituted damages rather than equitable relief under the policy); Sanborn Plastics Corp. v. Saint Paul Fire & Marine Ins. Co., 84 Ohio App. 3d 302, 316, 616 N.E.2d 988 (Ohio Ct. App. 1993) (“[T]his court also concludes that the costs for environmental clean-up constituted ‘damages’ under the instant policies and affirms the trial court on this assignment.”). See generally Ostrager & Newman, Handbook on Insurance Coverage Disputes § 10.3[c][3]/[4] (15th ed. 2010) (observing that “a majority of courts that have considered the issue have concluded that CERCLA-type response costs constitute damages within the meaning of a CGL policy”).
[62] Johnson Controls, Inc. v. Employers Insurance of Wausau, 2003 WI 108 , 665 N.W.2d 257, 264, 273(Wis. 2003).
[63] Johnson Controls, Inc., 655 N.W.2d at 273.
[64] Johnson Controls, Inc., 655 N.W.2d at 274.
[65] Johnson Controls, Inc., 655 N.W.2d at 275.
[66] See EnergyNorth Natural Gas, Inc. v. Century Indem. Co., 452 F.3d 44, 56–57 (1st Cir. 2006) (following Johnson Controls); Hardwick Recycling & Salvage, Inc. v. Acadia Ins. Co., 2004 VT 124, 869 A.2d 82, 92–93 (Vt. 2004).
[67] See 42 U.S.C. § 3604 (f)(3)(C).
[68] See Sanborn Plastics Corp. v. Saint Paul Fire & Marine Ins. Co., 84 Ohio App. 3d 302, 316, 616 N.E.2d 988 (Ohio Ct. App. 1993) (same argument adopted in environmental cleanup context).
[69] Fair Hous. Advocates Ass’n Inc. v. Terrace Plaza Apts., No. 2:03 cv 0563, 2006 U.S. Dist. LEXIS 55600, at *14–15 (S.D. Ohio E.D. 2006).
[70] Fair Hous. Advocates Ass’n Inc., 2006 U.S. Dist. LEXIS 55600, at *14.
[71] Fair Hous. Advocates Ass’n Inc., 2006 U.S. Dist. LEXIS 55600, at *15–16. See also Ins. Co. of Pa. v. City of Long Beach, 342 F. App’x 274, 277 (9th Cir. 2009) (construing similar “ultimate net loss” provision to include indemnification for attorney fees awarded under the Fair Housing Act, 42 U.S.C. 3613 (c)(2), because “damages” was not a defined term); City of Kirtland v. W. World Ins. Co., 43 Ohio App. 3d 167, 170, 540 N.E.2d 282 (Ohio Ct. App. 11th Dist. 1988) (because the term “money damages” was not defined in the policy, the attorney fees awarded were money damages the insured was forced to pay to plaintiffs in an underlying action).
[72] See, e.g., St. Marys Foundry, Inc. v. Emp’rs Ins. of Wausau, 332 F.3d 989, 993 (6th Cir. 2003) (“the insurer, not the insured, bears the burden of proving the applicability of an exclusion in its policy”).
[73] Am. Guar. & Liab. Ins. Co. v. 1906 Co., 273 F.3d 605, 611–12 (5th Cir. 2001) (noting that one of the differences between the personal injury coverage part and the bodily injury / property damage coverage part is that under the personal injury coverage part, “the triggering act may be intentional”); Sherwin-Williams Co. v. Travelers Cas. & Surety Co., No. 82867, 2003-Ohio-6039, ¶ 23 (Ohio Ct. App. 8th Dist. Nov. 13, 2003) (“The personal injury endorsement restricts coverage to injuries arising from specifically listed offenses, which all involve intentional tortious conduct against a person.”).
[74] 3-18 New Appleman on Insurance § 18.03[e].
[75] Groshong v. Mut. of Enumclaw Ins. Co., 143 Or. App. 450, 459, 923 P.2d 1280 (Or. Ct. App. 1996) (internal quotations omitted).
[76] Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 577 (6th Cir. 2013).
[77] See Washington v. Krahn, 440 F. Supp. 2d 911, 914 (E.D. Wis. 2006).
[78] See Essex Ins. Co. v. Harris, No. 4:09CV2071, 2011 U.S. Dist. LEXIS 113421, at *38 (E.D. Mo. Sept. 30, 2011).
[79] See Essex Ins. Co., 2011 U.S. Dist. LEXIS 113421; Turk v. TIG Ins. Co., 616 F. Supp. 2d 1044, 1051 (D. Nev. 2009) (exclusion for “discrimination on the basis of age, ethnic origin, marital status, physical or mental hardship, race, religious affiliation, sex, or sexual orientation” applied to bar coverage for Fair Housing Act claims involving the design and construction of buildings); Am. Nat’l Gen. Ins. Co. v. L.T. Jackson, 203 F. Supp. 2d 674, 678–79 (S.D. Miss. 2001) (exclusion for “sexual molestation” applied to bar coverage under certain policies).
[80] Miami Valley Fair Housing Center, Inc. v. The Connor Group,725 F.3d 571 (6th Cir. 2013).
[81] Miami Valley, 725 F.3dat 580 . See also Fair Hous. Cong. v. Weber, 993 F. Supp. 1286, 1290 (C.D. Cal. 1997) (considering an outright ban on children to be “discrimination,” but finding that section 3604(c) can also be violated by a statement that “suggests a preference to the ordinary reader or listener ”).
[82] See Retail Ventures, Inc. v. Nat’l Union Fire Ins. Co., 691 F.3d 821, 826 (6th Cir. 2012) (noting rule that ambiguities are ordinarily interpreted against the insurer).

 

 

Brian D. Heskamp <a name="_ednref1" id="_ednref2"></a><a href="#_edn1" title="">[1] </a><a href="#_edn1" title=""> </a>&#8211;September 26, 2014