phillips, hunt, walker & hanna COVID-19 Coronavirus Pandemic Legal Advice: Civil Liability for Spreading or Infecting Others
Can I sue someone for exposing me to Covid-19?
This question is coming. The short answer is always, “yes,” you can sue anyone for anything. The real questions are will courts allow these lawsuits to move forward and can you recover? Those answers depend on the circumstances.
It is worth noting insurance carriers have generally excluded claims of this type.
Who caused what?
Under the law of negligence, if someone knows, or should have known, they exposed you to a condition which harms you, and you sustain losses, the law allows you to make a claim or file a lawsuit against them.
You need to know who caused your illness or injury or be able to make a case that a business or entity knew or should have known they exposed you to a risk. We are seeing this in the context of mass outbreaks where people and businesses are literally doing nothing about it or recklessly causing spread to vulnerable populations. That’s a possible case. In the cases of nursing homes, it could be a good one, depending on how the victim answer’s the next question.
How were you damaged?
The next question is a fundamentally important one… damages. What did you lose? If it’s a temporary condition where you treated at home and recovered, it isn’t going to be a very good lawsuit.
If you lost a loved one because someone decided to violate all protocol and you know who that person was, or an entity allowed it to happen, that is likely to be a case.
Did you lose work? Did you have hospital bills? Does it constitute wrongful death? Or medical malpractice? Those are questions your lawyer will have to analyze.
How do I recover?
Sometimes you can have the best lawsuit in the world, but there is no way to recover money. Not only does the average person not have money in the bank to cover losses, but the economy is going to make that worse. People can often bankrupt out of civil lawsuits before they have to pay. If someone has nothing, a lawyer will likely lose money on the case and won’t take the case. Cases are often defined by the ability to recover civil damages- money.
Does standard liability insurance coverage cover these cases?
That’s a tough question with a mixed answer. It depends on the policy, but the generally the answer is no. Some people still don’t realize that business, homeowner, renter and other liability policies cover them for losses and lawsuits in many circumstances. Under these policies, it depends on the definition of “bodily injury.” And it depends on the listed exceptions and exclusions.
We reviewed a Florida Farm Bureau Policy, which said, “physical injury, sickness or disease to a person, including required care, loss of services and death that results.” As good as that sounds, it gets worse. It says a “bodily injury (as defined above) does not include mental anguish, emotional distress, humiliation, mental injury or any similar injury unless it arises out of a physical injury to a person.” Further, coverage is then excluded, as the policy specifically excludes claims, “which arise out of the transmission of a communicable disease by an ‘insured.’”
Similarly, American Integrity Insurance states, “bodily injury” means, “sickness or disease, including required care, loss of services and death that results.” However, it specifically states that the insurance does not apply to claims which arise, “out of the transmission of a communicable disease by an ‘insured.’”
We examined other examples of other policies which are not so broad. In fact, State Farm specifically excludes coverage with far more detail. The “Liability Coverages” section of one State Farm policy defined “bodily injury” to specifically not include:
“(a) any of the following which are communicable: disease, bacteria, parasite, virus, or other organism, any of which are transmitted by any insured to any other person.
(b) the exposure to any such disease, bacteria, parasite, virus, or other organism by any insured to any other person; or
(c) emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person.”
As such, recovery will be difficult.
How have courts ruled in “communicable disease” cases?
In Clarke v. State Farm Florida Ins., 123 So.3d 583 (Fla 4th DCA 2012), the court examined the above State Farm issued exclusion and upheld it, although State Farm provided a very specific definition beyond a mere “communicable disease.” State Farm expanded it to include, “disease, bacteria, parasite, virus, or other organism.”
There, the plaintiff brought an action against a former romantic partner for injuries sustained after she contracted Herpes Simplex Virus (“HSV”) from a partner. The plaintiff sought damages on theories of negligence, fraudulent concealment, battery, and intentional infliction of emotional distress. The person who allegedly infected the Plaintiff held a homeowner’s insurance policy with State Farm.
In a business policy, the federal courts in Florida found similarly. In Colony Ins. Co. v. Nicholson, 2010 WL 2844802 (Fla. Southern District 2010), the Plaintiff sued a nail salon, Fancy Nails, after she got a fairly serious infection. The court examined this defining language in a policy issued by Colonial Insurance Company and essentially denied coverage. That policy was, again, more specific.
“The term “communicable disease” is defined as a contagious disease or illness arising out of or in any manner related to an infectious or biological virus or agent or its toxic products which is transmitted or spread, directly or indirectly, to a person from an infected person, plant, animal or anthropoid, or through the agency of an intermediate animal, host or vector of the inanimate environment or transmitted or spread by instrument or any other method of transmission.”
All roads appear to lead to insurance carriers denying and fighting coverage for any insured sued for infecting another person. That does not mean you won’t or can’t recover, but it does make it difficult. And insurance companies will be revisiting and editing policies as this progresses.
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