By Matt Lalande in Legal Questions on February 27, 2018
Here’s what happened to the parents of bullies in the recent case of Unified Insurance v. D.E. Parents were sued over their daughter being a bully at school and unfortunately…their insurance did not cover them and they were forced to pay out of pocket.
Mom and Dad (D & L) had homeowners’ insurance. The policy includes liability coverage if their personal actions cause “unintentional bodily injury or property damage”.
D & L were also the parents of a grade 8 girl that bullied another girl at school. The girl that was bullied suffered ongoing physical and psychological injuries. The parents were sued by the victim and her family for compensation. D & L then turned to their homeowner’s insurance for protection. Unfortunately their home insurer refused to defend them. D & L were forced to sue for coverage under their policy.
The Province’s top Court took a detailed look at the wording of both the lawsuit and the insurance policy.
The lawsuit alleged that, among other things, the parents “failed to investigate”, “failed to take steps to remedy”, “failed to take reasonable care to prevent”, “failed to take disciplinary action” and “failed to discharge their duty to prevent the continuous physical and psychological harassment.”
What is negligence? The New Oxford Dictionary of English (Clarendon Press: Oxford, 1998) defines ‘negligence’ as “failure to take proper care over something” (p.1240). The Court of Appeal found that it was obvious that this was what we call a “negligence claim.”
The problem is that the parent’s homeowner policy only provided insurance coverage if the homeowners became liable to pay damages (compensation) because of “unintentional bodily injury.”
Is bullying unintentional? The coverage unfortunately stopped here.
The policy also specifically excluded claims arising from the “failure of any person insured by the policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.”
The Court of Appeal said that the first word of the clause is ‘failure’ which is the core of the definition of ‘negligence” but the wording of the lawsuit against the parents brought the claim squarely within the exclusion of their home insurance policy. There seemed to be a failure on the part of the parents in relation to their daughter’s bullying AND the bullying is an intentional act. They were not provided insurance coverage to defend against the lawsuit.
The situation is unfortunate. We purchase homeowners insurance as a piece of mind contract to protect our own property and assets as well us to protect us against the perils of liability. If another person is injured or another person’s property is damaged, destroyed, lost or stolen we want coverage. We want and need our insurance company to step in and help us in a time of need. Unfortunately for these parents insurance coverage was unavailable. They must now pay out of pocket to defend a lawsuit and risk paying compensation to the injured victim…which could be upwards in the tens of thousands of dollars (it is also not rare to see six figures), depending on the extent of the victim’s injuries, the cost of and the contribution of legal fees to the victim’s lawyer, should that victim be successful in court. If he or she hurts seriously hurts someone then you could be on the hook to defend and, if your minor kid loses the case, to pay compensation out of pocket.