Although the case has no direct impact as legal precedent in the United States, a Canadian court recently ruled on the question of whether a homeowner’s insurance carrier had a duty to defend and indemnify parents whose child engaged in the bullying of another child. The case (D.E. v. Unifund Assurance Company) involved the parents of a school-age child who bullied another student at school. Although a trial court initially held that the homeowner’s insurance carrier had no duty to defend or indemnify the parents of the bully in a civil action, an Ontario appellate court reversed this ruling.

Brief Overview of Unifund

In the Unifund case, a civil action was commenced against several children and their parents by the parents of a young girl who was allegedly the victim of bullying, threatening behavior, and physical attacks at school. The lawsuit alleged that as a result of the bullying the young girl and her mother suffered serious psychological injuries as well as emotional trauma. The lawsuit sought to impose liability on the parents under a theory of negligence.  The plaintiffs specifically alleged that the parents of the bully were negligent in failing to be aware of or take any action against their son as a result of the bullying. After being notified of the lawsuit, the parents notified their homeowner’s insurance carrier of the lawsuit and sought coverage. Unifund, the homeowners’ insurance carrier, declined coverage based on its interpretation of the policy. The trial court agreed with Unifund’s interpretation, and the homeowner parents appealed.

On appeal, the appellate court examined the specific terms of the policy, including the terms that dealt with exclusion of coverage. Under those terms, the policy specifically indicated it would not defend or indemnify the parents where an “intentional act” or “failure to act” occurred. Unifund argued that this also extended to “negligent acts” insofar as a “negligent” or “careless” act is still an intentionally committed act. The appellate court disagreed.  If Unifund’s argument were accepted according to the court, then it could be used to avoid defending or indemnifying any policyholder accused of committing any negligent act.  Most negligent acts are committed “intentionally” in that they are voluntary actions undertaken by the tortfeasor.

Applicability to the United States and Florida

Bullying – especially cyberbullying – is a growing problem in the United States. Several high-profile cases have demonstrated the terrible and sometimes fatal consequences of bullying. Many children and teens have easy access to the Internet and possess savvy in using social media sites with false personas or while remaining anonymous.  This skill set makes it easy for these children to bully and taunt their peers. In some of these cases, lawsuits have been filed against the bully’s parents for failing to properly supervise their child’s behavior. “Failing to supervise” child liability claims allege that parents acted negligently or carelessly in the way they supervise their child’s activities.

It is important to read your homeowner’s insurance policy. Although the Unifund case was decided in Canada, the Unifund case illustrates a potential approach that a Florida insurer might employ to avoid covering a bullying liability claim.  Even if your policy contains a provision indicating the insurer will defend and indemnify you in cases not involving an “intentional” or criminal act, the insurer may still attempt to frame any negligence lawsuit as being based on an “intentional” act. In such an event, the assistance of an experienced Florida homeowner’s insurance claims attorney can be especially helpful.

You can reach Miami Insurance Claims Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected].

J.P. Gonzalez-Sirgo
J.P. Gonzalez-Sirgo, P.A.
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