The Volokh Conspiracy
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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."
