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Is there insurance coverage for sexting teacher?

Byline: Steven A. Meyerowitz, Esq., Director, FC&S Legal

This story is reprinted with permission from FC&&S Legal, the industry's only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe

Charles Dawson was employed as a mathematics teacher at Wanette High School in Wanette, Oklahoma.

Nude photos

During that time, he engaged in inappropriate communications with one of his students. By the time the parents of the student discovered the relationship, Dawson had requested and had received nude pictures of the student via text messages.

Dawson was criminally prosecuted.

The student withdrew from Wanette High School and finished her high school education through on-line courses.

The student sued Dawson in a state court in Oklahoma, seeking damages for invasion of privacy, intrusion on seclusion, negligence, and negligence per se.

Teacher's homeowner's policy

Dawson tendered the defense of the student's action to State Farm Fire and Casualty Company under the homeowner's insurance policy it had issued to him.

State Farm filed an action in the U.S. District Court for the Western District of Oklahoma, seeking a declaration that its policy did not provide coverage for the student's claims against Dawson.

The district court granted State Farm's motion for summary judgment and entered a declaratory judgment that the policy did not provide coverage.

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Dawson appealed to the Tenth Circuit.

Language of the State Farm policy

The State Farm policy provided:

SECTION II--LIABILITY COVERAGES

COVERAGE L--PERSONAL LIABILITY

If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice. ...

The policy defined:

bodily injury

as:

physical injury, sickness, or disease to a person

, but not including:

emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person

It defined:

property damage

as:

physical damage to or destruction of tangible property, including loss of use of this property

Appeals court: No coverage for defense of student's lawsuit

The circuit court affirmed.

In its decision, the circuit court explained that coverage under the State Farm policy was triggered only if the student's lawsuit included claims for either "bodily injury" or "property damage," as those terms were defined by the policy.

The Tenth Circuit then found that the student's petition was "devoid of any reference to physical injury, sickness, or disease." The student, the circuit court said, had not suffered any "physical injuries" due to Dawson's inappropriate behavior.

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The circuit court also found that the student had not alleged any "property damage" in her action against Dawson. It was not persuaded by Dawson's argument that the student had lost her property interest in being educated at a "brick and mortar" public school, as opposed to online, reasoning that even if that alleged loss was fairly characterized as a property interest for some purposes, it was not "property damage" as defined by the policy because it was not damage to "tangible property." Rather, the circuit court stated, the right to a public education was "intangible."

The circuit court concluded, therefore, that the policy did not provide coverage to Dawson for defense or indemnification of the student's action.

The case is State Farm Fire and Cas. Co. v. Dawson, No. 16-6356 (10th Cir. May 3, 2017).

Related: My homeowners' policy covers that?

Steven A. Meyerowitz, Esq., (smeyerowitz@meyerowitzcommunications.com) is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. This story is reprinted with permission from FC&S Legal, the industry's only comprehensive digital resource designed for insurance coverage law.
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Publication:Property and Casualty 360
Article Type:Reprint
Geographic Code:1U7OK
Date:Oct 26, 2017
Words:667
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