Over the course of time children and teens are known for being cruel to each other. Bullying has occurred on many different playgrounds for decades. This is still true today, however technology has made the situation much more complex. Three out of every four teens has a cell phone, and it is not unusual for a teen to send 3,000 texts a month. Unfortunately these texts are not always complimentary towards other teens, and some can be downright vicious. And it is not only messages; with Facebook and other social media sites, a nasty comment or compromising photo can be posted for all to see. This goes far beyond the neighborhood into the local community and may even involve multiple schools. This type of harassment or meanness has been termed cyberbullying. A writer for the New York Times recently organized an essay contest for teenagers about bullying and received 1,200 essays.

These bullying and cyberbullying activities have taken on serious consequences; more than one student has committed suicide because of being bullied or harassed by others. In the case of Jesse Logan, the eighteen-year-old sent nude pictures of herself to her boyfriend. After they broke up, the ex-boyfriend sent those nude pictures to other high school girls who started harassing her by calling her names such as slut and whore. After being harassed for a number of months, she committed suicide. The case of Hope Witsell is similar: she sent a topless photo of herself to a boy she liked, who forwarded the photo to others, and others began harassing her at school. Hope was thirteen-years-old when she committed suicide. While these are extreme cases, there are many other students who have been harassed and suffered from varying degrees of emotional distress because of bullying. This leads to questions about liability coverage from the homeowners policy since others inflicted distress onto the victim. As time has passed the age of students committing suicide has gotten lower. In May 2017 an eight year old boy was bullied and knocked unconscious at school; two days later he committed suicide. Statistics from 2015 show that 34 percent of students report experiencing cyberbullying sometime during their life. A different 2015 study From the Institute of Education Sciences reports that 92 percent of teens between ages 13-17 go online daily and 24 percent are online constantly. Cell phones and Twitter, Instagram, Snapchat and other accounts keep teens constantly in touch with others. In 2015 21 percent of students age 12-18 reported being bullied at school during the year. Fifteen percent of fourth graders and 7 percent of eighth graders presorted being bullied at least once a month. Gay, lesbian or bisexual students reported being electronically bullied more than heterosexual students; 28 percent instead of 14 percent. Middle schools seem to be the prime zone for bullying, as schools reporting bullying at least once week was higher for middle schools than high schools or combined schools.

In the study students were asked how often other students at school had done specific things. The list of behaviors was:

·Made fun of me or called me names

·Left me out of games or activities

·Spread lies about me

·Stole something from me

·Hit or hurt me (includes shoving, hitting, kicking)

·Made me do things I didn't want to do

·Shared embarrassing information about me

·Threatened me

·Posted embarrassing things about me online (asked only of 8th graders)

Before discussing the liability issues we must first completely define the problem. One definition of cyberbullying is when one youth targets another youth using interactive technologies, including but not limited to activities such as spreading lies, harassing the youth, teasing, taunting, threatening, and posting mean things. One website, the Cyberbullying Research Center, defines it as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.” The intent is always to cause harm to others in some manner.

Cyberbullying is limited only by the imagination. It lasts longer than schoolyard bullying and can follow the victim via cell phone or computer. People who do not even know the victim may take part by voting for someone as the ugliest, fattest, least popular, or some other negative characteristic. Cyberbullying may include the creation of web pages that assume the identity of another, and the impersonation of another as the poster of various comments.

The Centers for Disease Control uses the term electronic aggression, since that covers all behaviors from making rude comments to posting pictures on websites to making threatening or aggressive comments. Instant messaging is apparently the most popular means used for cyberbullying, more so than chat rooms, email, texts, or websites.

Many states have provisions against bullying and cyberbullying that school boards are required to follow. While not all states define cyberbullying, those states that do often use a definition that includes some combination of the following:

·The transmission or sending/posting of a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass, or alarm another person; and the transmission was in furtherance of severe, repeated, or hostile behavior toward the other person. Some states restrict it to bullying of a student on school property or harassing a student while off school property with the intent to have an effect on the student while on school property.

·Any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone, other mobile electronic devices, or any electronic communications; email, instant messaging, text messaging, blogs, pagers, online games or websites, to transfer signs, signals, writing, images, sound, data, or intelligence of any nature.

·Creation of a blog where the creator assumes the identity of another or knowingly impersonates another or posting of material to a medium that can be accessed by more than one person.

·Some states include distribution of sexual images of a minor.

Some states, such as Arkansas, classify cyberbullying as a misdemeanor, and in Arkansas the defendant can be prosecuted in the county where the defendant was at the time the harassing communication was sent, in the county where the victim resides, or in the county where the communication was received. Those that do not define cyberbullying separately often include electronic issues in their definition of bullying, harassment, or intimidation. Many state definitions of bullying are similar; the definition of bullying often includes an intentional physical act or gesture by one or more students repeatedly directed at another student attending school in the same school district, that causes physical or emotional harm to the student or damage to the student's property. Other characteristics include the following:

·Places the student in reasonable fear of physical or emotional harm to the student's person or property.

·Creates a hostile environment at school for the student.

·Infringes on the rights of a student at school.

·Substantially disrupts the education process or the orderly operation of a school and has a detrimental effect on the student's academic performance, mental health, or ability to participate in or benefit from the services, activities, or privileges provided by a school.

·Is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student(s).

·Such behavior may occur on school property, on a school bus, at a bus stop, or at a school sponsored function.

Some definitions also include an electronic, written, verbal, or physical act or conduct toward a student that is based on the student's actual or perceived age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status.

Many states require schools to have a plan that absolutely prohibits bullying; allows students to report bullying anonymously; requires dissemination of the anti-bullying policy to parents, students, and staff; outlines reporting procedures; requires school staff to notify the proper authority if they witness any form of bullying; allows parents to report suspected bullying; requires each incident to be investigated and parents of the bully and victim to be notified; and has consequences for incidents of bullying. Notice that many states have statutes concerning bullying that occurs in schools or affects school performance. Schools can only address what happens at school; they are not responsible for the behaviors of children when they are not on school property.

Another issue is that of sexting—the act of sending or receiving sexually explicit or suggestive images or video via a cell phone. Often it starts as a romantic gesture: a teenager will send a picture of herself nude or partially nude to a romantic interest. This becomes problematic when the relationship sours and the recipient forwards the picture on to friends or posts it online. The cases mentioned earlier were the result of sexting behavior. The sexting led to bullying and cyberbullying. Another problem with sexting is that many states do not have any statutes dealing with the issue. Therefore the distribution of naked photos of a minor is considered child pornography and the sender of such photos may be considered a sex offender.

Coverage Issues

So now that the issue has been defined, coverage becomes an issue. The liability section of the ISO HO 00 03 05 11 provides coverage for “bodily injury” or “property damage” for an “occurrence” for which the insured is found legally liable. The policy defines “bodily injury” as “…bodily harm, sickness or disease, including required care, loss of services and death that results.” No mention is made of emotional distress. However emotional distress can result in sickness; it is not unusual for mental stress to manifest itself in physical symptoms. Certainly the girls who committed suicide were stressed to the point that bodily harm resulted from the harassment. However, without physical manifestation, emotional distress is very difficult to prove, and most courts do not accept emotional distress without physical manifestations to be bodily injury. Carriers and courts want concrete evidence.

Couch on Insurance, 3rd edition, §129:5 states that in order to be considered bodily injury, mental or emotional distress must be manifested as physical injury. Certain jurisdictions allow mild symptoms such as headaches or sleeplessness as sufficient to be considered bodily injury.

In Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254 (Minn. 1993) the court stated that emotional distress alone was not cause for recovery and that emotional distress was not bodily injury. The plaintiff was in the hospital with injuries when she received a call from her agent stating that she had no insurance; the plaintiff claimed emotional distress. However, with no physical manifestation, there is no bodily injury.

Likewise, in Greenman v. Michigan Mut. Ins. Co., 433 N.W.2d 346 (Mich. App. 1988), the court ruled that without physical manifestation there was no bodily injury from alleged sexual harassment and that the carrier had no duty to defend under the homeowners policy. The court stated that the policy definition of “bodily injury,” which requires sickness or disease, requires at least some physical manifestation of mental injuries.

In a later case, Admiral Ins. Co. v. Hosler, 626 F.Supp. 1105 (D. Colo. 2009) the court determined that the difficulty in distinguishing between mental and physical injuries can make the term “bodily injury” ambiguous causing such cases to be handled on a case by case basis to determine whether the injuries are sufficiently similar to physical injuries to render the term “bodily injury” ambiguous. When a term is found to be ambiguous the benefit of the doubt goes to the insured.

In Voorhees, v. Preferred Mut. Ins. Co., 607 A.2d 1255(N.J. 1992) a teacher brought action against a parent for statements about the teacher's competency that led to the emotional distress of the teacher. The emotional distress was physically manifested by headaches, stomach pains, nausea, and body pains. The trial court ruled for the insurer and the appellate court reversed stating that the negligent infliction of emotional distress would fall under bodily injury. After a number of findings and appeals, the Supreme Court held that the insurer had the duty to defend to determine whether the policy would cover Voorhees' liability for emotional distress accompanied by physical manifestations.

The reason for courts requiring physical manifestations of emotional distress in order for there to be coverage under liability policies stems from the attempt to avoid groundless litigation. It is quite easy to feign stress without physical manifestations; carriers and the courts could be flooded with claims of emotional distress without physical manifestation that would be near impossible to prove or disprove.

The next coverage hurdle comes in the expected or intended injury exclusion. Bodily injury or property damage is excluded if it is intended or expected by the insured, even if the resulting injury or damage is of a different kind, quality, or degree than what was initially intended. While emotional distress may not be considered bodily injury, in order for liability coverage to apply it must be considered as such.

Another exclusion that comes into play is injury or damage from mental abuse. The term is not defined; Merriam-Webster Online defines abuse as “a corrupt practice or custom, improper or excessive use or treatment; misuse (drug abuse) or language that condemns or vilifies usually unjustly, intemperately and angrily.” None of these fit the actions involved in teasing, harassing, or humiliating someone. However as mentioned earlier, in order for there to be liability coverage, the action must cause bodily injury or physical damage, and again, since emotional distress is not bodily injury, there would not be coverage as long as there are no physical manifestations of the mental distress.

The last issue to tackle is that of “occurrence,” which the policy defines as an accident, including repeated or continuous exposure to the same general harmful conditions that result in injury or damage. Most people look at the first definition of accident, which Merriam-Webster defines as “an unforeseen and unplanned event or occurrence”; however, there are two other significant definitions. The first is “an unfortunate event resulting especially from carelessness or ignorance” or “an unexpected happening causing loss or injury which is not due to any fault or misconduct of the person injured but for which legal relief may be sought.” So, an intentional posting of photos on a web page by another youth is not necessarily the fault of the injured youth even if the injured youth originally provided the photo. Likewise, is it reasonable to expect teens, especially younger teens, to be able to foresee the ramification of all their actions? Can the name calling, nasty posts, or the distribution of compromising photos be seen as a result of carelessness or ignorance? A youth who originally provides a compromising photo is certainly careless and possibly ignorant of the possible consequences, and another teen that passes on the photo can be seen in the same light. Therefore, there could be an occurrence, and if mental distress results in physical symptoms, the carrier could be liable for providing a defense of the teen's actions.

Endorsement

An endorsement exists for Personal Injury, HO 24 82 05 11 “Personal injury” is defined as injury arising out of a number of offenses, including oral or written publication that slanders or libels a person or that violates a person's right to privacy. Merriam-Webster defines slander as to defame; to defame is to harm the reputation of an individual. Libel is a written form of defamation. This would seem to grant coverage for actions of a teen against another teen; however, there are a number of applicable exclusions.

The first exclusion is for injury at the direction of the insured with knowledge that the act would violate the other person's rights and would inflict personal injury. The intentional posting of photos would certainly violate a person's right to privacy and defame his reputation.

A second exclusion is for material that is dispersed with knowledge of its falsity; this would include anything a teen posted on a web page, emailed, or even said to another teen with the knowledge that the information was not true. However, this may apply to the originator of the gossip, but what about secondary or tertiary spreaders of information? What if they believed the falsehood told by the first teen? What if the first teen simply tells the second teen some information knowing that it is false, but the second teen believes it and posts it on Facebook? There would be coverage for that second teen's behavior.

Sexting and the posting of compromising photos of other teens becomes extremely complicated with the exclusion for injury arising out of a criminal act committed by or at the direction of the insured. While some states make an exception for sexting, many consider it child pornography, and it is therefore a criminal activity. Thus there is no coverage for the act of sexting or the dissemination of certain types of photos.

Conclusion

Technological advances have helped to make bullying, cyberbullying, and sexting much more serious issues than they had been in the past. While in the past only the neighborhood children or children in a particular class might know of a student being harassed, with the advent of the Internet such harassment can become very widespread and lead to significant emotional and even physical damage to the student being harassed.

The issue has become significant enough that states have developed statutes on bullying and sexting, and what schools must do in order to try to prevent such activities. While only some states define sexting, most define bullying and cyberbullying and require certain steps and procedures to be taken by the schools.

Insurance policies do not intend to provide coverage for such issues; the acts are intentional with the desire to cause harm to someone else, and intentional acts are excluded. However, depending on the situation, in very narrow circumstances a case could be made for coverage. To date there are no cases that address such a situation; however, the subject is not closed.