9 Comments

well, the ruling itself is quite reasonable. if you get lawsuit insurance, it should protect you during the suit. the notable thing is that someone thinks they can call it defamation to call someone that.

Insurance against intentional torts? How do they underwrite that?

I don’t see how the ruling is reasonable. The company is ecluded from underwriting defamation defenses for statements that are made “with knowledge of falsity.”

So you are saying the plaintiff is actually a plastic container filled with some chemical solution?

Oddly enough, while the court believes that such an implication ‘can’t be proven false’, conversely it can be proven true – see plaintiff filing lawsuit over someone implying he is a douchebag.

How can it be actionable to cal publicly call someone a douchebag? Or a twat or a dick for that matter?

Frank

I think you’re misunderstanding what this case is about.

I think you would agree that when any person calls another person a douche, they don’t mean it literally. In that context it is a statement that they are a jerk, or something close to that. It is an assessment of their personality.

And I think you and I would agree that in the underlying defamation case, the case should be dismissed. If you call someone a douche, that’s just your opinion and you are entitled to it.

But the judge was not ruling on that. Instead, Kerr ran a PR firm. He purchased insurance to protect himself personally from any defamation suit, so long as he didn’t knowingly make a false statement (according to the linked article); it obligated the insurance company to bankroll the defense and pay out any judgment or settlement (probably with minimum and maximum payouts). Then he put up a site where he called a competitor a douche. That competitor, Ronn Torossian, sued him for defamation.

So he goes to the insurance company and says, “yes, this is a stupid suit, and yes, this should be dismissed quickly, but you are still on the hook to defend the case. And feel free to get it kicked quickly.”

And the insurance company backed out, claiming he had made a false statement. The judge said, more or less, this is an opinion and thus not subject to truth or falsity, thus he didn’t make a false statement. So the insurance company can’t back out of its obligations: it must pay Mr. Kerr’s legal bills.

There’s nothing at all ridiculous about that. And I suspect that the authors of this site agree. They were probably more interested in the fact that there was litigation over “defamation” that was clearly just free speech.

In my less than humble opinion by filing a lawsuit over this obvious dig at Ronn Torossian’s questionable behavior proved that Mr. Kerr was, in fact, correct.

The insurance company did what insurance companies have become known for and just tried to weasel out of paying a claim and got slapped for their efforts.

Two wrongs, Tossaian’s and the insurance company’s, never make a right.

> The insurance company did what insurance companies have become known for

I will object to that. most insurance companies recognize that if they are known to weasel out of payment, then they will soon stop having customers. An insurance company isn’t no good to its customers unless it actually, you know, pays out.

I will also say that clients of insurance companies are well known for trying to get around the terms of the insurance contract and force the company to pay for something that wasn’t contracted for.

Insurance against intentional torts? How do they underwrite that?

Defamation isn’t necessarily an intentional tort, even in the case of a public figure (which this plaintiff presumably wasn’t – now he’s enshrined in the media as an “alleged douche”). It’s possible to libel or slander someone negligently, simply by making a false assertion without investigating the facts, or even with reasonable investigation that turns out to be incorrect.

Most business policies contain a provision for “advertising injury,” which covers libel and slander, and most homeowners policies cover “personal injury,” which is defined to include the same. The blanket exclusion for intentional injuries is disregarded, for purposes of determining whether a defense is owed, under the principle that the specific controls over the general and that insurers owe a defense for any cause of action that may be covered, regardless of whether they owe indemnity once the actual facts are determined by a jury.

That’s important. The standard insurance policy contains two protections, defense and indemnity. The defense obligation is broader than the indemnity obligation because the indemnity obligation may be worthless if the insured has to pay for his own defense.

This is considered fair because the insurer drafts the policy, and you have no control over its terms. It’s well and good to speak of freedom of contract, but in actual practice negotiating with an insurer over the terms of its policy (“I’d like to eliminate this clause and substitute this language that I drafted myself. How will that affect my premium?”) is like negotiating with your cable provider about the individual channels you’d like to receive. The response will be “Take it or leave it.”

Since the insurer is in control of every word in the policy (unless it’s state-regulated), and the insured has no real negotiating leverage, courts give the insured the benefit of the doubt if there’s an ambiguity or a reasonable question about what the policy actually covers.

Sorry to intrude.

Patrick

good points, although i will say that the ability to negotiate also depends on the size of the insured. my company can negotiate some with the insurance company because they positively want our business. And of course insurance companies are afraid to change language because they fear some hidden legal meaning far beyond the intended consequences. fwiw.