Affirming a ruling by U.S. District Judge Greg Kays, of the Western District of Missouri, a panel of the 8th Circuit found that American Family Mutual Insurance Company was not required to defend its insured, Brent Lambi, against a claim by Brian Potter that Lambda had infected Potter with HIV while they were having sex. Lambi v. American Family Mutual Insurance Co., 2013 WL 490778 (Feb. 11, 2013) (not published in F.3d).
When American Family refused to defend Lambi, claiming that their policy did not cover this alleged injury to Potter, Lambi sued in federal court to enforce the policy. Generally, insurance companies have an obligation to defend their insureds against claims the claims are even just arguably covered by the policy, even if the claim turns out to be non-meritorious, but the defense obligation does not apply if the policy clearly excludes coverage. In this case, the policy insures Lambi against claims that his negligence has caused bodily injury to another, but the policy states that “bodily injury” does not include “a. any of the following which are communicable: disease, bacteria, parasite, virus or other organism with are transmitted by any insured to any other person.” The policy also has an “abuse” exclusion which would, said the court, apply to a bodily injury “arising out of or resulting from any actual or alleged sexual molestation or contact,” and the court said the policy also specifically excludes bodily injury “arising out of the actual or alleged transmission of a communicable disease.”
It sounds like American Family’s lawyers drafted the insurance contract with the specific intention to avoid providing coverage for any sexually transmitted disease or condition. On the other hand, Lambi argued, the definition of bodily injury in the policy includes “sickness,” rendering it ambiguous, which might be sufficient to trigger the defense obligation. The court wasn’t buying this, because of the clear applicability of the policy’s express exclusions from coverage. “The policy excluded bodily injury arising out of the actual or alleged transmission of a communicable disease,” concluded the court, “and infecting another with the HIV virus clearly falls within the plain and ordinary meaning of the transmission of a communicable disease.”Tags: HIV, liability insurance for sexual transmission of disease