Our insured is an alcohol and drug rehab facility. The insured is facing allegations that confidentiality is not being maintained at its premises since files are allegedly stored unlocked where clients and others can gain access. Under the general liability policy, could this meet the definition of personal and advertising injury? Could this be an occurrence? Or would coverage apply under a professional liability policy?

New York Subscriber

Has any actual loss occurred? If the concern is just about the possibility of a loss, that is not covered by any liability policy.

As for personal or advertising injury, that depends on an offense, not an occurrence. The difference is that an occurrence is an accident, but an offense is something done intentionally. And, the only part of the definition of personal and advertising injury that might apply is an oral or written publication that slanders or libels a person or a publication that violates a person's right of privacy. And, keeping a file in a file cabinet, even if unlocked, is not really a publication. A publication is something displayed to the general public and that is not what you describe. So, the definition of personal and advertising injury is not met in this instance.

As for a professional liability policy, that depends. Most of these type policies are manuscripted forms and company-specific forms, so you would have to see how the insuring agreement is worded on such a policy and see how items are defined and what is excluded on the particular professional liability policy in order to properly answer the question of coverage.

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