One of the top stories of 2014 was the increasing spread of the Ebola virus in some West Africa countries and its migration to the United States. Authorities scrambled to put policies in place for monitoring travelers coming from Ebola-affected countries to the U.S., with some airports screening passengers, and some jurisdictions imposing more invasive measures.

Nurse Kaci Hickox, who did not test positive for Ebola, became embroiled in a legal battle after returning from treating Ebola patients in Sierra Leone and being quarantined in New Jersey. She fought against a forced quarantine in her home state of Maine. She eventually settled and the quarantine did not happen, but false imprisonment was one of the possible claims for her to file.

Black's Law Dictionary (6th edition) defines the tort of false imprisonment as “the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.”

Federal and state authorities have statutory grounds for imposing reasonable quarantines to protect the public health, so a claim for false imprisonment may not have succeeded. But, what if an employer had tried to force an employee into a quarantine when state or federal officials had not mandated it? Would insurance coverage apply for any subsequent claims filed?

The Insurance Services Office (ISO) Commercial General Liability Coverage Form provides coverage for personal and advertising injury liability. “Personal and advertising injury” is defined on the form to include injuries arising out of false imprisonment. An exclusion for employment-related practices can also be added to the form, which excludes personal or advertising injury arising out of employment-related practices, policies, acts, or omissions.

Some courts have interpreted false imprisonment with regards to employment-related practices.

For instance, in John Davler, Inc. v. Arch Ins. Co., 178 Cal.Rptr.3d 502 (2014), employees alleged, among other claims, that they were victims of false imprisonment when a supervisor required all of the women in the department to undergo an inspection of their persons in the ladies' restroom, performed by another employee. The alternative to being inspected was to be fired.

John Davler, Inc. was insured under a commercial general liability policy issued by Arch Insurance Company. Coverage was provided for sums the company became legally obligated to pay as damages due to personal and advertising injury, defined as “injury, including consequential 'bodily injury,' arising out of…[f]alse…imprisonment.” The form also contained an employment-related practices exclusion stating that injury arising out of employment-related practices— such as discipline, defamation, humiliation, or malicious prosecution—were not covered under the personal and advertising injury coverage.

John Davler, Inc. argued that false imprisonment was not explicitly excluded in the items listed as arising out of employment-related practices., while it was specifically mentioned in the coverage for personal advertising injury. The court, though, said that the list provided was not an exhaustive list but that other similar acts could also be part of the exclusion.

The court concluded, “The conduct giving rise to the false imprisonment claims by the John Davler employees was employment-related, and the employees' injuries arose out of their employment.” Therefore, the employment-related practices exclusion barred coverage for the employees' false imprisonment claims.

On the other hand, in an unreported case—Perkins v. Maryland Cas. Co., 388 Fed. Appx. 641 (9th Cir. 2010)—the court found that an insurer had the duty to defend an insured against false imprisonment claims brought by the insured's former employee.

In this case, a former employee testified that she was backed against a wall while her supervisor yelled at her. California law states that the elements for a tort of false imprisonment are the same as the definition from Black's Law Dictionary: “(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.”

The court stated that the employee could have possibly asserted a claim for false imprisonment. The insurer argued that any potential claim could not be covered because it would be excluded by the employment-related practices exclusion, which, like in the previous case discussed, contained a list of excluded actions. False imprisonment was not included on the list.

The court said that it was unclear whether false imprisonment, in the context presented, was similar enough to the listed employment-related practices (coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, or discrimination) to be considered part of the exclusion. Thus, the court found the exclusion ambiguous and held that the insurer had a duty to defend the insured.

In North American Bldg. Maintenance, Inc. v. Fireman's Fund Ins. Co., 137 Cal.App.4th 627 (2006), the court found that the employment-related practices liability exclusion did not apply to an action brought by employees of another company.

North American Building Maintenance, Inc. (NABM) was a commercial janitorial services provider to other companies, including Target Stores. Three former janitorial workers filed action against Target and NABM for false imprisonment, stating that they “were frequently locked in the business premises without exit keys and without a non-alarm exit available and against their will.” They were sometimes locked inside even after their shifts ended.

Fireman's Fund refused to defend NABM and said that the false imprisonment claim arose from employment-related practices, policies, acts, or omissions. NABM countered that the exclusion should apply only to employees, and the janitors were employees of an independent contractor. NAMB contended that the employment-related practices exclusion requires an employment relationship, which it did not have with the janitorial workers. Fireman's Fund viewed the requirement of an employment relationship as immaterial.

The court said, “Broadly speaking, there appears to be no impediment to holding a nonemployer liable for the false imprisonment of another employer's employee. False imprisonment is a generic, not an employment-specific tort.” However, examining the policy as a whole, the court found reasons to conclude that the employment-related practices exclusion would not apply when the insured is not the employer, former employer, or potential employer of a third-party claimant. The reasonable expectations of NABM were protected, and the court held that the exclusion did not apply to claims by employees of an independent contractor.

While these cases do not specifically address quarantines, they do touch on the employer-employee relationship as it applies to interfering with civil liberties. Insureds should understand how certain exclusions may apply when coverage is presumed.