Insurance Law

Emily Post Would Not Approve: He Really Said That? And Then That?

There is no other way to put it. Amica Mutual Ins. Co. v. Vernon, 14-235 (D. Idaho Apr. 17 2015), [enhanced version available to lexis.com subscribers], is a coverage case that grows out of a sad situation. The unfortunate story is told by the court right from the get go. I’ll just set it out here:

“Defendant Russell Vernon and now deceased Roberta McIntire worked at Century Link in Boise, Idaho. The two employees rarely interacted with each other. Several months before Vernon retired in May 2011, and while at work in the break room, Vernon asked Roberta how she made her coffee. She responded, ‘What f*cking business is that of yours?’ The two co-workers had little further interaction until December 2011, when Vernon mailed an anonymous card with an enclosed letter to Roberta. The front of the card read, ‘F* * * You, You F* * *ing F* * *.’ The letter inside the card contained four paragraphs of insults, some of which read: ‘It goes without saying that you undoubtedly must know by now how much you are disliked by the techs here ...;’ ‘Hopefully someday R(redacted) will wise up and dump you for something worth having. It’s funny how many of us like R(redacted) yet would laugh ourselves silly if you were to get run over by a train; and ‘Every year we hope that this will be your last one here but every year you stay.’”

Roberta committed suicide five days after receiving the card and enclosed letter.

Roberta’s Estate and her mother sued Vernon for negligence, wrongful death, intentional infliction of emotional distress, and negligent infliction of emotional distress. Vernon sought coverage under his homeowner’s policy with Amica Mutual Insurance Company. Amica filed an action seeking a declaration that it had no duty to defend or indemnify Vernon. The Idaho federal court held that Amica had no such duties.

At the outset, the court observed: “Much can be said about Vernon’s conduct. However, one thing that cannot be said is that his conduct was accidental.” The court did not provide any analysis as to how it reached this conclusion -- presumably because it was not the basis for its decision. And I didn’t look at Idaho law on the “what’s an ‘accident’ issue.” But, on its face, I’m not convinced that this wasn’t an accident. While Vernon’s conduct was intentional (very intentional), it seems unlikely that he intended to cause Roberta to commit suicide or that it was substantially certain that, by sending the card and letter that he did, she would commit suicide.

In any event, the court concluded, and without breaking a sweat, that coverage for Vernon was precluded by the policy’s exclusion for “[b]odily injury ... arising out of ... mental abuse.” The court held: “It is unimaginable that sending a card to someone which begins, ‘F* * * You, You F* * *king F* * *,’ and then continues on with an additional four paragraphs of vicious and personal insults, could be regarded as anything but ‘mental maltreatment.’ The card falls within any reasonable definition of mental abuse. If sending a card and [the] enclosed letter . . . does not constitute mental abuse, then nothing does.”

The Court was not persuaded by Vernon’s argument in support of coverage: that “the card and letter constitute a ‘social interaction.’”Yes, you read that right, social interaction. That’s really how Vernon characterized the card and letter in support of a duty to defend.

Now, I don’t usually dig into the briefs when writing about a decision. I just don’t have time. I take the opinion for what it says. But this was an exception. I just had to know more about this “social interaction” argument. So I spent a couple of bucks and went onto Pacer (no expense spared for you dear CO readers). Here’s how it was described in Vernon’s Cross-Motion for Summary Judgment: “We maintain that the interaction that occurred between the decedent and the Defendant was nothing more than a ‘social interaction’ to which the decedent was ‘required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.’ (citation omitted). And, the card sent to the decedent did not rise to a level of mental abuse but rather was part of social interaction. The decedent said a profane comment to the Defendant and the Defendant reacted with the card.”

Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.

The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.

    Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.

Read more from this issue of Coverage Opinions.

For more information about LexisNexis products and solutions connect with us through our corporate site