The U.S. Tenth Circuit Court of Appeals affirmed a district court’s grant of declaratory judgment in favor of two insurers, holding that a chiropractor’s claim for humiliation resulting from her husband’s rape of her patient in the office is not a “personal and advertising injury” offense.Hanover American Ins. Co. v. Balfour, 2015 WL 250607 (10th Cir. Jan. 21, 2015).
The insured was a chiropractor who tendered a claim for indemnity and defense to her businessowner’s insurer after being sued for her husband’s rape of one of her patients at her chiropractic clinic. The insurer brought a declaratory judgment under, in part, general liability coverage that insured against “personal and advertising injury,” including:
Discrimination or humiliation (unless insurance thereof is prohibited by law) that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is:
(1) not done intentionally by or at the direction of: (a) the insured; or (b) any officer of the corporation, director, stockholder, partner or member of the insured; and (2) not directly or indirectly related to an “employee,” nor to the employment, prospective employment or termination of any person or persons by an insured.
The Tenth Circuit held that the “humiliation” for which coverage was sought does not include general humiliation. The Tenth Circuit concluded that each offense included in the “personal and advertising injury” provision is either a tort or some other specific cause of action, and that the tort of “humiliation” covers character and reputation torts which may have at their cores the humiliating conduct. The court held that it would be strained to read “humiliation” as a catch-all term that includes any and all conduct one might find humiliating.