August Massachusetts has an "anti-cyber bullying" law AN ACT RELATIVE TO BULLYING IN SCHOOLS which defines cyber bullying as:

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1 TECH TALK Cyber Bullying and Personal Lines Policies... By Irene Morrill, CPCU, CIC, ARM, CRM, CRIS, LIA, CPIW Vice President of Technical Affairs August 2011 As a result of a Tech Talk on the HO policy and Internet Liability in July 2009, I have been asked about "cyber bullying". Hmmmm remember the good old days when the bully just scared or beat up people? There seemed to be FEWER of those types of bullies. It appears to be easier with today s technology to be a cyber bully. Just what constitutes "cyber bullying"? This term is used to describe when a child or teenager is harassed, humiliated, embarrassed, threatened or tormented using digital technology. Massachusetts has an "anti-cyber bullying" law AN ACT RELATIVE TO BULLYING IN SCHOOLS which defines cyber bullying as: Cyber-bullying, bullying through the use of technology or any electronic communication, which shall include, but shall not be limited to, any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications. Cyber-bullying shall also include (i) the creation of a web page or blog in which the creator assumes the identity of another person or (ii) the knowing impersonation of another person as the author of posted content or messages, if the creation or impersonation creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying. Cyber- bullying shall also include the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons, if the distribution or posting creates any of the conditions enumerated in clauses (i) to (v), inclusive, of the definition of bullying. Some of the forms of cyber bullying can be 1) Sending mean messages or threats to a person's account or cell phone (harassment or cyberstalking) 2) Spreading rumors online or through texts (a form of gossip) 3) Posting hurtful or threatening messages on social networking sites or web pages (cyberthreats) 4) Stealing a person's account info to break into their account and send damaging messages (Impersonation) 5) Pretending to be someone else online to hurt another person (Impersonation) 6) Taking unflattering pictures of a person and spreading them through cell phones or the Internet (harassment) 7) Sexting, or circulating sexually suggestive pictures or messages about a person The Cyberbullying Research Center also did a series of surveys that found these cyber bullying statistics: Over 80 percent of teens use a cell phone regularly, making it the most popular form of technology and a common medium for cyber bullying. Massachusetts Association of Insurance Agents 91 Cedar Street Milford, MA TECH HOTLINE (Fax)

2 TECH TALK PAGE 2 August 2011 About half of young people have experienced some form of cyber bullying, and 10 to 20 percent experience it regularly. Mean, hurtful comments and spreading rumors are the most common type of cyber bullying. Girls are at least as likely as boys to be cyber bullies or their victims. Boys are more likely to be threatened by cyber bullies than girls. What effect does "cyber bullying" have on its victims? Many victimized adolescents and teenagers suffer anxiety, depression and some even commit suicide. The victimized individual or his/her survivors sometimes proceed with civil liability suits against schools, parents of the cyber bully and the media provider where offensive language or pictures published. If the cyber bully and his/her parents are sued, will the HO policy respond? Well, the unendorsed ISO HO policy provides an insured with liability coverage for "bodily injury" and "property damage." COVERAGE E Personal Liability If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which this coverage applies, we will: The ISO HO policy, whether HO-91, HO-2000 or HO-2011 defines "bodily injury" as: "Bodily injury" means bodily harm, sickness or disease, including required care, loss of services and death that results. Is humiliation, torment, mental anguish or emotional trauma necessarily "bodily injury"? No, though this COULD vary by state. As a general rule of thumb in Massachusetts, these mental states are NOT considered bodily injury. If physical ailments or complications resulted from being emotionally traumatized, would "bodily injury" then have developed? Possibly. The U.S. Center for Disease Control states that cyber bullying can result in mental health problems such as depression, anxiety and headaches. Is suicide resulting from the emotional trauma at being cyber bullied "bodily injury" as defined under the policy? Hmmmmmm. The ISO HO policies define "occurrence" as: "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. "Bodily injury"; or b. "Property damage." Is deliberate cyber bullying an "occurrence"? If one deliberately transmits/sends information that gives rise to emotional trauma resulting in "bodily injury"... is that an accident? Or is it a planned event with unplanned results? To reinforce that the HO policy doesn't want to cover planned situations giving rise to BI or PD, there is an intentional injury exclusion.

3 TECH TALK PAGE 3 August 2011 The ISO HO-91 intentional injury exclusion: Coverage E Personal Liability and Coverage F Medical Payments to Others do not apply to "bodily injury" or "property damage": a. Which is expected or intended by the "insured"; This exclusion is not as strict as one might think. The "action" might have been intentional but many courts require that the insurance company prove the insured knew what the intended result would be in order to successfully deny a claim. Bodily injury claims have been paid where the actual injury was worse than the injury intended. Or, the action was intentional, but the wrong (unintended) person got injured and the homeowners company was forced to pay! So, ISO firmed up the intentional injury exclusion in the HO-2000 (and HO-2011) by stating: E. Coverage E Personal Liability And Coverage F Medical Payments To Others Coverages E and F do not apply to the following: 1. Expected Or Intended Injury "Bodily injury" or "property damage" which is expected or intended by an "insured" even if the resulting "bodily injury" or "property damage": a. Is of a different kind, quality or degree than initially expected or intended; or b. Is sustained by a different person, entity, real or personal property, than initially expected or intended. However, this Exclusion E.1. does not apply to "bodily injury" resulting from the use of reasonable force by an "insured" to protect persons or property; This is more of an intentional action exclusion than the earlier ISO HO versions. If the result was WORSE than intended or someone OTHER than intended was injured too bad no coverage. So, IF bodily injury resulted, there is still a problem with coverage for the perpetrator... and certainly a problem for the old-fashioned beating up physical type of bully. Who might be sued? A good lawyer sues EVERYBODY! The parents are generally sued for negligent supervision or vicarious parental responsibility in addition to the child who perpetrates the act. Will the parents have coverage? Again, IF "bodily injury" occurs and IF it is considered an "occurrence", then the HO-91 certainly would respond because, IF the exclusion applies, it ONLY applies to THE insured who expected or intended the situation. Unless the parent directed the action there would be coverage and defense for the parent. In most situations the parent is clueless hence the problem. What about the HO-2000 or HO-2011? Interesting, the exclusion applies to "which is expected or intended by an "insured". In the definition of "insured" the HO-2000 and HO-2011 include the following paragraph: Under both Sections I and II, when the word an immediately precedes the word "insured", the words an "insured" together mean one or more "insureds". What is this the more the merrier? Where "an" precedes the word "insured" it means that multiple insureds could be involved which if we are PROVIDING coverage that could be a good thing but if we are EXCLUDING coverage we've wiped out coverage for any and all that fit the definition of insured with one fell swoop. However, IF "bodily injury" and an "occurrence" have resulted from the actions of the child, I still believe there would be coverage for the parent who was not privy to knowledge of the child's

4 TECH TALK PAGE 4 August 2011 activity. If the parent is not aware of what the child is doing, then the exclusion for intentional action or injury should not apply to the parent. Cyber bullying is more likely to result in libel, slander, defamation of character, humiliation, etc. The unendorsed ISO HO policy does NOT provide liability coverage or defense for these "injuries" and the offenses that created them. The HO policy must be endorsed. The ISO Personal Injury Liability endorsement is HO The ISO HO-91 Personal Injury HO (04/91) version defines "personal injury" as: For an additional premium, under Coverage E Personal Liability, the definition "bodily injury" is amended to include personal injury. "Personal injury" means injury arising out of one or more of the following offenses: 1. False arrest, detention or imprisonment, or malicious prosecution; 2. Libel, slander or defamation of character; or 3. Invasion of privacy, wrongful eviction or wrongful entry. The ISO-HO-2000 Personal Injury HO (04/02 version) defines "personal injury" as DEFINITIONS The following definitions are added: "Personal injury" means injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period: 1. False arrest, detention or imprisonment; 2. Malicious prosecution; 3. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; 4. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or 5. Oral or written publication of material that violates a person's right of privacy. The ISO HO-2011 Personal Injury HO version states: The following definitions are added: "Personal injury" means injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period: 1. False arrest, detention or imprisonment; 2. Malicious prosecution; 3. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; 4. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or 5. Oral or written publication, in any manner, of material that violates a person's right of privacy. The various endorsement editions are "substantially" the same. In the HO-2000 filing, ISO states that there are some broadenings and some reductions in coverage, but ISO states in its filing that: taken as a whole, the revised Personal Injury coverage is at least equal to, if not broader than, that which is currently (HO-91) provided.

5 TECH TALK PAGE 5 August 2011 Personal injury exclusions: The HO-91 endorsement has the fewest exclusions and the only one that could apply is: 2. Injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an "insured"; I think the injury was caused by what was said, ed, written, etc., NOT by a violation of law or ordinance. It does so happen now that there IS a cyber law but violation of it was NOT what caused the victims emotional pain or angst. The action of cyber bullying caused the defamation of character, the libel and the invasion of privacy. But, will the 1991 version apply to cyber libel? Dictionary.com states the definition of libel as: 1. Law. a. defamation by written or printed words, pictures, or in any form other than by spoken words or gestures. b. the act or crime of publishing it. c. a formal written declaration or statement, as one containing the allegations of a plaintiff or the grounds of a charge. 2. anything that is defamatory or that maliciously or damagingly misrepresents. Is information on the Internet or text messages actually considered "written"? One can argue the "or in any form OTHER than spoken though. The ISO HO-2000 and HO-2011 endorsements have MORE EXCLUSIONS that might preclude coverage: 1. "Personal Injury": a. Caused by or at the direction of an "insured" with the knowledge that the act would violate the rights of another and would inflict "personal injury"; b. Arising out of oral or written publication of material, if done by or at the direction of an "insured" with knowledge of its falsity; c. Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period; d. Arising out of a criminal act committed by or at the direction of an "insured"; Oh oh. The older the perpetrator the more problem with the "a" exclusion. At what age should one be aware that one is violating the rights of another and knowingly inflicting "personal injury?" Certainly, the "b" exclusion should apply if one is writing false things. However, in my research on the web, I found cyber bullying where one individual gained the confidence of another and then let the WORLD know that individual's innermost secrets. So, the information divulged was true and of the type that the victim wanted to remain private. If something was entered onto the Internet last month and the personal injury endorsement was added today oops a little too late according to exclusion "c". There is now a criminal act exclusion, but did the libel arise out of the criminal act or was libeling in a cyber bully way merely a criminal act. Coverage for the "innocent" parent under the Personal Injury endorsements Perhaps there might NOT be coverage for the child/teenager perpetrator, but when the parent is sued for negligent supervision, there will be coverage and defense for the parent. The HO-91 refers us back to the Section II insuring agreement as the definition if "personal injury" is added to the "bodily injury" definition.

6 TECH TALK PAGE 6 August 2011 Under the HO-2000 (04/02) and the HO-2011 versions, the endorsement is separate from "bodily injury" and contains its own insuring agreement which reads as follows: SECTION II LIABILITY COVERAGES A. Coverage E Personal Liability The following is added to Coverage E Personal Liability Personal Injury Coverage If a claim is made or suit is brought against an "insured" for damages resulting from an offense, defined under "personal injury", to which this coverage applies, we will: So, the innocent parent should find coverage. What about the Personal Umbrella? Good question. One would have to read it to determine whether there is coverage. Most personal umbrella carriers require that the personal injury endorsement be added to the underlying homeowners policy. If there is no requirement, then personal injury could be a "broadening" of coverage provided by the umbrella. Read it to see what is covered. If the umbrella requires the underlying limit be purchased under the HO policy, then make sure this is done. Then, read the "personal injury" definition and exclusions in the umbrella to see if coverage is the same as, broader, or more restrictive than the underlying HO policy endorsement. The ISO 2006 Personal Umbrella defines personal injury much like the HO-2000 HO policy: "Personal injury" means injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period: 1. False arrest, detention or imprisonment; 2. Malicious prosecution; 3. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; 4. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or 5. Oral or written publication of material that violates a person's right of privacy. and the exclusions are similar to the HO-2000, so that if the underlying HO paid, then the Personal Umbrella will pay also. Beware of personal umbrella exclusions The AAIS (American Association of Insurance Services) personal umbrella will have an "electronic aggression" exclusion in it as of 10/1/2011. The article (on the AAIS website) states the exclusion applies to any damage or injury arising from, but not limited to, harassment or bullying committed by electronic means or through an electronic forum. What do YOUR personal umbrellas exclude? Personal injury aggregate limit endorsement The ISO HO-2011 filing will offer a second personal injury liability endorsement, but this one will have an aggregate limit restriction. More information on cyber bullying or electronic aggression The US Center for Disease Control has much information for parents, schools and researchers. Also, there are various respectable websites loaded with information on this "hot topic" - just a "google" away.

7 TECH TALK PAGE 7 August 2011 Current Texas lawsuit filed June 2011 A girl was the subject of a "nasty video" posted on Facebook. The parent of the girl went to the parents of the perpetrators and told them to cease and desist AND to donate a minimum of $5,000 each to the Center for Safe and Responsible Internet Use, an Oregon non-profit organization. The parents ignored this father. Oh, did I not mention that this father was a Houston, TX LAWYER. These perpetrators and parents are now being sued for making defamatory and false statements that "impute sexual impropriety and misconduct" on his daughter. The complaint also alleged that the video includes threats to physically harm the girl. I hope that each family has an HO policy with personal injury coverage. Otherwise, the defense cost of the lawsuit will most probably be MORE than the $5000 suggested donation. And, if they lose the cost of the lawsuit and the judgment could be detrimental to their lifestyles. I hope all of your clients with children or any client who enjoys , Facebook, blogs, etc., have the personal injury endorsement added to their HO policies and also Personal Umbrella coverage. It is an UGLY world out there, and insurance is ALWAYS cheaper than an excluded or not-covered loss. * * * * Good luck. If I can be of service to you, please call me, Irene Morrill, Vice President of Technical Affairs at or me at imorrill@massagent.com. This article has been developed expressly for the members of MAIA. Reprint by other than members without the express permission of the author is not permitted.