Does Auto Insurance Policy Cover Spreading STD When Having Sex in a Car?

And can the parties remain pseudonymous in the lawsuit related to this?


From the facts in Geico Gen. Ins. Co. v. M.O., decided Thursday by Magistrate Judge Angel D. Mitchell (D. Kan.):

[GEICO] seek[s] a declaratory judgment to determine GEICO's rights and obligations for its insured [under an auto insurance policy and an umbrella policy] for allegedly spreading a sexually transmitted disease [HPV, which can causes genital warts and, sometimes, cervical cancer] while voluntarily having unprotected sex in the insured's automobile. GEICO's insured is defendant M.B., and he allegedly gave the STD to defendant M.O.

M.O. demanded that GEICO pay her $1 million to resolve her claim against M.B., triggering GEICO to file this lawsuit ….

GEICO's amended complaint alleges that, for the two policies GEICO issued to M.B., liability coverage is identical for all relevant intents and purposes. GEICO seeks a declaratory judgment that these policies do not provide coverage for M.O.'s alleged injuries, and therefore GIECO has no duty to defend or indemnify M.B. against M.O.'s claim.

Among other things, GEICO alleges that the auto policy only applies to bodily injuries arising "out of the ownership, maintenance or use of the … auto," and that M.O.'s alleged damages have no nexus to the ownership, maintenance, or covered use of the 2014 Hyundai Genesis. In other words, the vehicle's covered use did not cause M.O.'s alleged injuries; instead, her injuries arose from an intervening cause—namely, her failure to prevent transmission of STDs by having unprotected sex. Likewise, the umbrella policy does not provide coverage because it only applies if the auto policy provides coverage. GEICO also asserts that various policy exclusions preclude coverage under the umbrella policy.

The substantive question has yet to be decided, but naturally there are many procedural questions beforehand. They include including whether M.O. and M.B. engaged in a collusive arbitration of their dispute "to avoid GEICO's right to intervene and be heard, to fix liability where it otherwise would not attach, and to obtain an artificially inflated award—all in an attempt to pursue insurance proceeds and extra-contractual monies from GEICO," and also whether M.O. is subject to jurisdiction in Kansas.

But the one that particularly interests me is the one having to do with pseudonymity (about which I'm writing an article). Here's what the court has to say about that:

Courts recognize the public's general right to inspect and copy public records and documents, including judicial records and documents. This includes a public interest in knowing the litigants' identities…. And although certain factors may heighten the public's interest—such as cases involving public figures or public funds—the public's interest in routine court proceedings is still significant…. "[T]here is a significant interest in open judicial proceedings even in ordinary civil litigation between private parties" because "[p]rivate civil suits, individually and certainly in the aggregate, do not only advance the parties' private interests, but also further the public's interest in enforcing legal and social norms."

Although this case does not involve the use of public funds or public figures, the public's interest is still significant. M.O. and M.B. try to characterize this case as one involving personal and intimate details of their sexual relationship. But this does not accurately characterize the nature of the case.

This case is now an insurance coverage dispute where the auto and umbrella coverage policies at issue appear to be like many others. And this case presents novel and potentially important issues about whether an insurance carrier can be held liable under such policies for the consequences of two adults voluntarily having unprotected sex in the insured's automobile. Interpretation of these policies could have far-reaching implications for other policies with similar terms.

Furthermore, if the policies provide coverage, the details of their sex lives could bear on relevant issues like causation and the extent of M.O.'s damages. For example, discovery regarding other sexual partners could be relevant to determining whether M.O.'s infection was caused by M.B. And because the two engaged in unprotected sex and it is disputed whether M.O. knew that M.B. had HPV, there could be issues as to M.O.'s fault. The insurance policies at issue include an auto policy on M.B.'s vehicle and an umbrella policy, but M.O. and M.B. apparently also had sex in M.B.'s home and potentially other locations—raising the issue of when and where the virus was actually transmitted. According to GEICO, M.B. raised none of these defenses at what GEICO contends was a non-adversarial and collusive arbitration proceeding resulting in a $5.2 million award that the state court confirmed. In short, this case presents novel and potentially important issues, and its outcome could have persuasive value on other insurance coverage disputes.

Furthermore, any allegedly private details became less private (although the court questions how private those details actually were if they were having sex in a car) when M.O. sent GEICO a demand letter making an insurance coverage claim. By doing so, she brought any arguably private matters into the more public domain. M.O. and M.B. then settled M.O.'s liability claim by entering into the § 537.065 agreement and subsequently participating in the allegedly collusive arbitration proceeding—resulting in M.O. obtaining an extra-contractual $5.2 million judgment that she can collect only from GEICO, not M.B. And M.B. has now asserted counterclaims against GEICO for coverage. In short, M.O. and M.B. foisted this matter into a public court proceeding by the ways in which they have and are pursuing coverage from GEICO. In general, parties who assert damage claims should expect some level of public exposure in employing the courts to resolve their disputes….

M.O. and M.B. contend that this is an exceptional case involving matters of a highly sensitive and personal nature. The court recognizes that the Tenth Circuit has observed that matters involving or related to sexual intimacy may, but do not always, implicate privacy interests sufficient to warrant allowing parties to proceed anonymously…. But these cases are only marginally informative because the facts of this case do not involve minors or extremely sensitive issues such as sexual assault. Rather, the allegations in the pleadings that defendants contend are "of a highly sensitive and personal nature" involve commonplace adult sexual behavior, including the transmission of one of the most common STDs. Although there is no bright-line rule, sexual behavior or preferences that are considered conventional or within the bounds of societal norms are generally "accepted without controversy, ridicule or derision" and therefore present a less compelling reason to proceed anonymously.

In sum, most of the case law addressing matters of sexual intimacy involves distinguishable fact patterns, no rule emerges that would govern here, and no case is sufficiently analogous to have meaningful persuasive value. The court is therefore guided by the Tenth Circuit's straightforward mandate that a party should be allowed to proceed anonymously only in an "exceptional case." The court has difficulty finding that allegedly transmitting HPV while two adults voluntarily have unprotected sex is anything but commonplace. Commonplace adult sexual behavior, without more, does not present the exceptional case justifying restricted public access….

More to the point, M.O. and M.B. misconstrue the asserted privacy interests that are at stake. Again, this is not a case solely between parties who were involved in a sexual relationship. Rather, it is an insurance coverage dispute. To that end, the more applicable cases are those in which parties have sought leave to proceed anonymously in the context of insurance coverage disputes. Those cases often involve sensitive and potentially embarrassing details of individuals' physical or mental conditions or private lives generally. But courts generally disallow parties to proceed anonymously, finding the public's interest outweighs the movants' privacy interests. See, e.g., United Fin. Cas. Co. v. R.A.E., Inc. (D. Kan. 2020) (disallowing a parent to proceed anonymously in a declaratory judgment action involving a dispute about insurance coverage for a minor student molested on an insured bus); Doe v. UNUM Life Ins. Co. of Am. (N.D. Cal. 2016) (well-known lawyer who had practiced at a prominent law firm and suffered from debilitating mental illness could not anonymously litigate his claim for denial of ERISA benefits); MacInnis v. Cigna Grp. Ins. Co. of Am., 379 F. Supp. 2d 89, 90 (D. Mass. 2005) ("In short, it is difficult to perceive disclosure of a depressive/anxiety disorder as presenting the 'exceptional' case for which anonymity was intended."). As one court observed, health benefit denials "routinely involve disclosure of mental and physical illnesses," just as "the medical histories of tort victims are a common subject of negligence and medical malpractice cases."

While many people would prefer to keep details about their sex lives' private, the Tenth Circuit has repeatedly made clear that the risk that a party may suffer some embarrassment by being named in the pleadings is not enough to allow them to proceed anonymously. The court therefore examines the record to see whether it reveals something more that would make this an "exceptional case."

M.O. and M.B. come forward with only conclusory assertions of harm without relying on any specific facts to show any identifiable harm by litigating in their real names. M.O. contends that she and her minor children would suffer potential emotional and psychological harm if her identity is disclosed, but she provides no details about how this is the case…. M.O.'s argument essentially asserts in conclusory fashion that her children should be protected from psychological harm because her sex life is embarrassing. But the mere fact that a parent's sex life might be embarrassing to the minor children does not present an exceptional case that warrants granting leave to proceed anonymously, particularly when that individual is seeking insurance coverage as a result of his or her sex life.

Likewise, M.B. contends that revealing his identify would subject him to social shame, ridicule, embarrassment, and humiliation that could "devastate his employment, professional relationships, family, life, jeopardize his future political and personal opportunities and provoke further unwarranted and resource-consuming investigations." But courts do not allow parties to proceed anonymously when only economic or professional concerns are involved.

And, like M.O., M.B. also provides no facts. Indeed, the court does not know M.O.'s or M.B.'s professions, whether M.B. has realistic future political prospects, what additional investigations would be prompted by disclosure of their identities, what future opportunities would be impacted, or if the nature of their relationship makes it more scandalous— for example, if one or both were married, if they had a supervisor-employee relationship, or if any special circumstances would cause psychological harm to M.O. and her children beyond simply the embarrassment of having their mother's sexual history disclosed.

While courts have recognized that reputational harm or social stigma may exceed embarrassment and present a compelling reason for allowing a party to proceed anonymously, they have done so only when the moving party makes a sufficiently particularized and supported showing of reputational harm or social stigma to justify the request. Here, the parties have presented no such facts….

The court allowed the defendants " to proceed anonymously until the court rules on M.O.'s motion to dismiss" for lack of personal jurisdiction; but within seven days of the ruling on personal jurisdiction (presumably if the court doesn't grant the motion), GEICO would need to file a complaint "that names the remaining defendant(s) by their real names."

NEXT: Today in Supreme Court History: October 4, 1965

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  1. Hopefully the judge will get a good laugh before granting the DJ.

  2. In an ideal world, the judge would beat M.O. about the head with a rubber chicken, and then sanction her counsel for frivolous filing.

    1. I like the way you think.

    2. Considering that the court granted a $5 million dollar award for infecting someone with HPV, an absurdly common condition which usually has no health effects, I would sanction a lot of people, and in fact arrest them for insurance fraud

      1. Courts routinely grant uncontested judgements. Maybe they should pay more attention to what they’re granting.

        This was uncontested, with a proviso that the judgement could only be collected against insurance, the MB would not be personally liable. So that if the insurance company refused to pay, it would go away.

    3. Although IIRC it was GEICO that filed. IIUC she simply filed a claim with GEICO.

      1. After going through arbitration with M.B.: “According to GEICO, M.B. raised none of these defenses at what GEICO contends was a non-adversarial and collusive arbitration proceeding resulting in a $5.2 million award that the state court confirmed.”

  3. She is only acting out her part in the 21st century American Dream; claim to be a victim, sue, and get rich.

  4. That’s a lot of words to say that the US doesn’t have a right to privacy.

    1. Well, not a right to privacy in public court filings, anyway. Which is as it should be.

      1. Of course. You wouldn’t want the poors to be able to actually use their right to litigate civil disputes, would you? Better to shame them out of court, so that Geico can keep making money and the courts can keep busy having opinions about people’s reproductive rights.

        1. Court records have to be public, if the public are to keep track of what the courts are up to.

          And in this case the parties fully deserved to be publicly embarrassed. Trying to rip off the auto insurance company because they claimed they’d gotten an STD making out in the parked car? Why should you expect to be able to try a stunt like that, and keep it secret?

          1. I expect that they did more than just make out.

            1. For all we know, they’re making up the part about it having happened in the car. Remember, this is just a plot to rip off the insurance company, none of it needs to be true.

              1. If only there was some rule of evidence that required people who state facts to prove them.

                1. If only judges required that when they granted default judgements. This is an attempt to force a third party to pay the judgment, which by all appearances was entered into for no other purpose. (It was agreed that MB wouldn’t be liable if the insurance didn’t pay off, a provision which makes no sense otherwise.)

                  1. If only there was some way for an insurance company to become a party to litigation that might result in it having to pay out.

          2. And in what way is the public prevented from keeping track of what the courts are up to if the court papers are anonymised?

            And your second comment is exactly the point of a right to privacy: it protects individuals and minorities against bullying by the majority. Just because you’re a prude who would never dream of having sex in a car, doesn’t mean you get to bully others into living by the same rule.

            1. You’ve got no idea what my sex life is like, but I will own up to not dreaming about trying to rip off my insurance company for a million bucks with a collusive lawsuit, which is what the couple here should be embarrassed by the disclosure of.

              1. If you’re worried about frivolous lawsuits, maybe spend some time arguing for more costs orders and other sanctions? But when that topic of conversation came up on the VC the other day, I don’t remember you being all that enthusiastic.

            2. “Just because you’re a prude who would never dream of having sex in a car, doesn’t mean you get to bully others into living by the same rule.”

              I don’t care if people have sex in a car. So why should it be anonymous? Why is this so extraordinarily upsetting that it warrants proceeding under pseudonyms if having sex in a car is not unusual and not worthy of any criticism?

              1. You might have misunderstood. I think people should generally be able to litigate anonymously whenever they want to. And they should definitely be able to do so when there’s an internet full of Brett Bellmores looking to name and shame them. That you’re a good dude doesn’t change that.

                1. That’s a lot of words for “I don’t like common law systems”.

            3. “Just because you’re a prude who would never dream of having sex in a car, doesn’t mean you get to bully others into living by the same rule.”

              I…guess that this implies that MartinNed is a non-prude who has sex in cars, and fears that his personal info will be exposed when he tries to recover from his car insurance companies for any diseases he might catch?

            4. I have to disagree with you on this one, Martinned. Allowing these two to proceed anonymously may seem like a win for the little guy to you in this case, but the principle would then be used far more often and effectively by the wealthy to use the court system to their ends. In my view, keeping court records open to the public in most cases (except naming minors, for example, and otherwise very limited exceptions for adults) achieves far more than it costs in potential “bullying.”

              And, shocker, I agree with Brett that they deserve shaming for filing a $5 million lawsuit solely to try to extract money from a car insurance company for something barely related to the car (and, as he says, maybe didn’t even happen there). That’s not what we pay for car insurance for. Buy sex insurance if you want that sort of coverage. Sheesh. (If that wasn’t the sole purpose, M.O. wouldn’t let M.B. off the hook.)

          3. I don’t see why using a car to have sex is not using a car–the policy language doesn’t give any indication of what you might be using the car for. Insurance companies are constantly looking for technicalities to deny coverage; policyholders should be equally free to look for technicalities to claim it.

            1. If the car was in motion, then it ought to be covered. Otherwise no.

              1. Doesn’t seem like that limitation was the policy language, though.

              2. “If the car was in motion, then it ought to be covered. Otherwise no.

                “Sure, but the legal question is, does rocking back and forth count as motion?

          4. Trying to rip off the auto insurance company because they claimed they’d gotten an STD making out in the parked car?

            What do you think “making out” means?

        2. “You wouldn’t want the poors to be able to actually use their right to litigate civil disputes, would you?”

          Why don’t Europeans care if the poors are being treated fairly by the courts?

        3. “You wouldn’t want the poors to be able to actually use their right to litigate civil disputes, would you? Better to shame them out of court, so that Geico can keep making money”

          How does one go about inserting an “eyeroll” emoji?

          1. I’m sure EV will get to it right after an edit function.

    2. Why should anyone get privacy during an effort to collude with a lover to bilk the lover’s insurance company? Sunlight is the best disinfectant.

      1. If that’s what they did, how is the insurance company in any way prevented from proving that and refusing to pay out as a result of their anonymity?

        1. The insurance company knows who they are, the anonymity is just as far as the public is concerned.

          And it doesn’t hinge on proving bupkis, because this isn’t the sort of thing auto insurance covers.

          1. The insurance company knows who they are, the anonymity is just as far as the public is concerned.

            Yes, that’s what I said.

            And it doesn’t hinge on proving bupkis, because this isn’t the sort of thing auto insurance covers.

            Well, that should make life really easy for the insurance company, then. Not sure why that necessitates publicly shaming the plaintiffs, but you do you.

            1. What you seem to be missing is that no one want to shame them for having sex in a car or for catching an STD. Frankly, both of those are too common to actually shame anyone these days. What we want to publicly shame them for is attempted insurance fraud.

              Naming them makes it easier for other fraud victims to come forward. Naming them makes it easier for future litigants to see the pattern of fraud they attempt. Naming them lets the rest of us see what public resources they are frivolously consuming.

        2. You don’t understand one very basic fact: if my taxes are being used to adjudicate this and other cases, I want the details public. For all I know, they may be lying their asses off, and some member of the public may see the reports and blow this whistle on them. It’s not just this case; it’s all cases. If parties to a case don’t want the publicity, they can resort to private arbitration, and good luck enforcing that contract without resorting to public courts.

          1. if my taxes are being used to adjudicate this and other cases, I want the details public.

            Or shorter, you’re a snoop who likes to stick their nose in other people’s business.

            1. Shorter yet — don’t take my money without me knowing what it’s used for.

              Even shorter — fuck off, slaver.

            2. Or shorter, you’re a snoop who likes to stick their nose in other people’s business.

              Shorter: You’re a moron.

            3. Translation: “MO & MB should be free to try this trick on every insurance company because their right to privacy is absolute.”

              1. If their claim is so frivolous, then yeah. Let them sue whoever they like, and let the insurer seek a cost order against them every time.

                1. Because con artists are known to be able to pay the costs of their cons.

  5. I had to go to the actual ruling to see what the judge decided re anonymity. He’s allowing the case(s) to proceed anonymously for now but will most likely disallow it if the case(s) proceeds much farther (M.O. has filed a motion to dismiss). In particular, GEICO has seven days to file an amended complaint with the real names. Not sure if that amended complaint will become public.

    1. Sorry, edited that out at first (and just added it back): The court is essentially concluding that the motion to dismiss on personal jurisdiction grounds can be decided pseudonymously, but if the case proceeds from there to the substantive questions, it is to be litigated with the parties’ full names.

  6. If vehicle is merely the “situs” of the occurrence, unrelated to use or operation, then no auto policy coverage. E.g., Corriveau v. State Farm, 836 S.E.2d 694 (Va. 2019). I think this is the majority rule.

  7. I agree with everyone else that this is a frivolous filing, but for a different reason: He was not the only person practicing unsafe sex; so was she. So isn’t she 50% at fault?

    1. Allegedly he didn’t disclose to her that he was infectious.

      1. So what? Prudence still requires safety precautions.

        1. Prudence is free to require what she wishes, as is M.B.

        2. Don’t worry, baby. I’ve got protection.

          1. See, that’s just it. I learned at a very early age not to believe everything told me by a prospective sex partner. Also that if the sex resulted in an undesired pregnancy, or transmission of an STD, that I would be stuck with the consequences of it no matter what my partner had told me. (“Judge, I shouldn’t have to pay child support because she told me she was on the pill” just isn’t going to cut it.)

            Basic bottom line, sex is strict liability, not because that’s what the law says, but because that’s what mother nature says.

  8. Damn! Geico wouldn’t cover hurricane damage to my rental.

    1. Damn! Geico wouldn’t cover hurricane damage to my rental.

      “Blow” is just an expression.

  9. She agreed to have sex without a condom and without an HPV vaccine.

    But the real issue is how can GEICO be on the hook for a settlement they were not a part of? Is there a reason this won’t be a quick victory for GEICO?

  10. “Kansas has a communicable disease law that makes it a felony to expose another to a “life threatening communicable disease.” The law encompasses sex, organ/blood/semen donation and needle-sharing.”

    He should be prosecuted for increasing her risk of cervical cancer.

    1. Kansas law does provide that

      21-5424. Exposing another to a life threatening communicable disease. (a) It is unlawful for an individual, who knows oneself to be infected with a life threatening communicable disease, to:
      (1) Engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease;
      (2) sell or donate one’s own blood, blood products, semen, tissue, organs or other body fluids with the intent to expose the recipient to a life threatening communicable disease; or
      (3) share with another individual a hypodermic needle, syringe, or both, for the introduction of drugs or any other substance into, or for the withdrawal of blood or body fluids from, the other individual’s body with the intent to expose another person to a life threatening communicable disease.

      But “with the intent to expose” would require a showing of a “conscious objective or desire to … cause the result.” Having sex with the mere knowledge that the sexual contact will expose the person to a life threatening disease doesn’t seem to qualify, unless he consciously wanted her to get infected.

      1. Are you positive that the intent doesn’t only apply to (3)?

        1. “intent” is explicitly required in (1), the provision arguably applicable here (if any would be).

    2. The transmission is alleged to have happened in Missouri, to a woman who is a Missouri resident.

  11. If she wins there will be a flood of copycat cases.

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