On Monday, a Tennessee jury awarded $55 million to FOX sportscaster Erin Andrews in her suit against Michael Barrett, her stalker, and the Marriott hotel where they both stayed. In 2008, Mr. Barrett secretly videotaped Ms. Andrews through a peephole as she changed clothes in her hotel room. Hotel staff had revealed that she was staying at the hotel and, upon Mr. Barrett’s request, gave him a room next to hers. Mr. Barrett’s surreptitious video of Ms. Andrews was later made public. Ms. Andrews sued Mr. Barrett, West End Hotel Partners, LLC (the owner/franchisee of the hotel) and Windsor Capital Group, Inc. (the operator of the hotel) for negligence, invasion of privacy, and infliction of emotional distress causing embarrassment. The jury found the hotel’s owner and operator 49% at fault, comprising approximately $27 million of the total verdict.
The hotel’s portion of the verdict is likely covered by its commercial general liability (CGL) insurance policy, which would typically cover damages awarded against an insured because of negligent acts that cause bodily injury. The “negligent acts” requirement is unlikely to be an issue in Ms. Andrews’ case, since the complaint alleges negligence and negligent infliction of emotional distress. Ms. Andrews’ claim that hotel staff “intentionally” placed Mr. Barrett in a neighboring room should not change this fact, as most policies require staff to intend the injury as opposed to merely acting with intent. However, the “bodily injury” piece may be a sticking point. Whether Ms. Andrews’ claims of emotional distress and embarrassment are covered “bodily injur[ies]” will depend on the exact policy phrasing and the exact nature of Ms. Andrews’ proved distress. For example, during her trial testimony, Ms. Andrews reportedly broke out in a rash, which she explained has occurred whenever she is stressed since the surreptitious video posted online. Such physical manifestation of her distress, among other symptoms, may be sufficient to constitute “bodily injury” under the policy.
Ms. Andrews’ privacy claims may be covered under the “personal injury” part of the hotel’s CGL policy, which typically covers sums that the insured becomes obligated to pay as damages because of personal injury, including publication of material that violates a person’s right of privacy.
Ms. Andrews’ original complaint also alleged loss of earning capacity, which could implicate errors and omissions (E&O) coverage. E&O protects insureds from liability for financial losses to clients caused by errors or omissions in the performance of professional duties. However, Ms. Andrews’ lost earnings claims were dropped during litigation so E&O insurance is unlikely to foot the bill for the verdict.
Those who follow the case should expect further motions practice and appeals as the parties fight over the size of the verdict. In the interim, the hotel’s insurers may encourage settlement to control post-trial costs, especially if the verdict appears unlikely to be overturned. Settlement discussions may present Ms. Andrews with a renewed opportunity to involve both the hotel’s CGL and E&O insurers to contribute sums toward a settlement.