I’m guessing you’ve seen the news stories about a woman who had sex in a 2014 Hyundai Genesis with some person who apparently didn’t tell her he had HPV, giving her the STI (the infection, not the Subaru) and all of the associated lifelong potential medical issues. You may remember that, in an unusual legal gambit, the woman sued the man’s car insurance carrier, Geico, and this past June was awarded $5.2 million dollars! But then, just a bit over a week ago, that decision was overturned. It’s all a pretty weird roller coaster, and if you’re like me, you’re probably wondering just how the hell someone can sue the insurance company in a case like this? I mean, I know car insurance ads are strange, meaningless things (seriously, they’re like dadaist skits that convey almost zero actual information), but I’ve never heard any of them talk about STIs at all. So how does this happen? To get answers, we had to get a lawyer.
Luckily, we have good access to a lawyer, because our own Mercedes Streeter was smart enough to marry one, one named Sheryl Weikal. I asked Sheryl to explain this to me like I’m a curious idiot, just like it says on my business card, and boy did she. This is in terms a layperson should be able to understand, but it’s also nice and detailed.
So, if you want to know how a car insurance company can be on the hook for someone’s bad sex practices, read on. Sheryl’s take follows below the break.
Contrary to the breathless headlines, this was not quite as it seems, and the simple fact is that Geico was not ever in any real jeopardy of having to pay the award. To put it a different way, what happened here was an admittedly unusual version of a very common litigation practice.
To understand what happened, we’re going to have to explore some “inside baseball” of how litigation works. To begin, I’ve been a practicing consumer litigator* in Illinois for about 10 years now, so I’ve actually handled cases not dissimilar to this one, both in facts and procedural posture.
Please understand, though, that what follows is a simplified version of how this works; I’m deliberately oversimplifying for space purposes, and a full explanation would take, well, three years of law school and this isn’t the Lawtopian. Also, this is not legal advice; if you need legal advice, you should not read this article, and instead should contact your state’s bar and ask to speak to a qualified attorney licensed in your state. Finally, I’m not going to get into specific case law because this is not a legal treatise (thank G-d!), but if you really want, I can follow up with some citations for you.
With that out of the way, let’s take a look at what’s going on here. To begin, let’s start with how insurance works. If Jason and I are in an accident, and Jason is distracted by the really cool taillights on my Prius and collides with me, I can file a claim with his insurance for the damage. His insurance has what is called a duty to defend – in other words, because this is an accident within his policy, his insurance company has a legal obligation to defend Jason up to the monetary limits of his policy. Now, depending on the state and the kind of policy, the limit may or may not include the cost of the defense and the full amount of money owed (the settlement or judgment), but generally speaking, most insurance claims end in a settlement.
But what happens if the claimant asks the insurance to pay for something outside the ambit of the policy? There are a few ways this could happen. For example, generally speaking, you can’t insure against an intentional illegal act; if David decides he absolutely despises Prii and slams into my car at 100 miles per hour on purpose with a rusty Jeep, his insurance will not cover him in the resulting criminal trial. An insurance company won’t go to jail or prison for you, and generally won’t pay for your felonious conduct either. That’s pretty straightforward. But there are intermediate cases that aren’t covered but also aren’t crimes, and that’s where the Geico case comes in.
What you’re covered by in any insurance policy is determined by the laws of your state, to a lesser degree the laws of the United States (especially as concerns health insurance), and, most importantly, the terms of the policy itself. The policy benefits book is part of a legally binding contract between you (the “insured”) and the carrier. There are different kinds of “injuries” or “losses” which can be covered by the policy, but generally speaking if you look through your car insurance policy you’ll see some things which are covered and some things that aren’t. What causes disputes is when the insurance company says they don’t have to pay, and the insured says you do. That brings us back to the “duty to defend.”
In most states, the way this is decided is by a special lawsuit called a “declaratory action.” There are thousands of declaratory actions filed every year, and whilst they are not solely insurance cases, a good percentage are. They are also usually (but not always) filed in federal court, and they ask the judge to “declare” (hence the name of the type of this case) that the insurance company does not need to actually provide a defense or coverage in this particular case. Geico filed a declaratory action against the parties to the arbitration back in 2020, saying to the judge there “look, we shouldn’t have to pay this, because there’s no way that contracting an STI is a covered loss.” So yes, there are two cases: one brought by the injured party against the insured, and another brought by the insurance company against the insured and the injured party. And honestly, Geico was probably always going to win that second case, because it is unlikely—though possible—that a court says their standard policy language covered something like this because it’s outside the normal expected use of the vehicle.
As for the amount of the award, that was the result of an arbitrator after consideration of the evidence. You see, that was intended to compensate the injured party for past, present, and future medical care as a result of the STI she contracted, as well as loss of consortium (basically, the stigma associated with this resulting in future loss of companionship). It was intended to compensate the injured party and punish the insured tortfeasor (a “tortfeasor” is a person who does a kind of illegal thing called a “tort”) for concealing the existence of the infection from the injured party. It never had anything to do with Geico. In fact, the existence of insurance is generally not admissible at trials and arbitrations.
But wait, you say, if that’s the case, then why did a court order Geico to pay? Well, see, that brings us back to the pesky duty to defend.
Generally speaking, until and unless there is a ruling in the declaratory action, the insurer has an obligation to at least provide a defense. That’s typically provided subject to what is called a “reservation of rights”—in other words, a type of legal document that says “we’ll defend you, but only to the extent that we are legally obligated to do so.” It’s a fancy way of saying that they will provide a defense, but only until the court in the declaratory action says they don’t have to anymore. So in the “underlying” case—that is, the one brought by the injured woman—she asked the courts to confirm an arbitration award against the insured for $5.2 million, and both she and the insured want Geico to pay because it has much deeper pockets than the insured does. Meanwhile, Geico provides a defense subject to a reservation of rights and sues them both in a declaratory action, asking for a second judge to say they don’t have to pay anything after all.
So why, then, did the Missouri Supreme Court just reverse the award? Because in order to trigger the duty to defend, you have to provide certain notice to the insurance company at a certain time, or coverage is waived. But this didn’t happen here; instead, the parties went to arbitration without Geico and then just sort of expected Geico would take care of it, err, somehow. Let me explain what I mean by this. The injured party and insured went to arbitration, to which Geico wasn’t a party and wasn’t involved. Then the injured party filed a lawsuit to confirm the arbitration award, but the insured never demanded to be defended. In other words, Geico learned about the case from an online docket report. Geico filed a motion to intervene in the case, but so late that its “motion to intervene” (in other words, their legal pleadings asking to join the case) were granted on the same day as the arbitration award was confirmed. To wit (from the Missouri Supreme Court):
The plain language of § 537.065.2 confers a statutory right to GEICO, as the insurer, to intervene within 30 days after notice of an agreement between M.O. and M.B., before a judgment may be entered. The circuit court did not allow GEICO to intervene in the pending lawsuit before judgment was entered, even though GEICO had timely filed a motion to intervene in the pending lawsuit, prior to entry of judgment, and within 30 days of notice.
Geico’s appeal was saying that it could not have defended a case to which it never received proper notice, and legally, it was right. The only reason it went this far was because the trial court made a mistake by basically telling Geico that it couldn’t defend the case, which defeats the whole “duty to defend” idea. The Missouri Supreme Court basically is saying that you can’t force an insurance company to pay for a case you didn’t allow it to defend, which makes sense. That said, they were almost certainly going to win the declaratory judgment in federal court anyway.
So really, this case was never so much about the salacious headlines, and more about the procedural checkboxes to make sure everyone involved in a lawsuit has proper notice.
Different states have different procedures for notifying insurance companies of pending litigation, but the bottom line is that you have to tell them about the case at some point using a procedure prescribed by statute. In some states, the duty to defend means the insurance company intervenes on the insured’s behalf; in others, it includes a special kind of substitution called “subrogation”; and in others, it is simply providing counsel in the case for the insured. But in every state, you can’t trigger the duty to defend without following the legal steps necessary to tell the carrier to defend you. It’s really like any other lawsuit – to get someone involved, you have to tell them to be involved, Geico was never really going to have to pay here, in all likelihood, but the headlines were a lot more fun whilst they lasted.
*I represent plaintiffs in discrimination cases, tenants in eviction cases, homeowners in foreclosure cases, consumers in debt collection cases, and defendants in misdemeanor cases. In other words, I sue banks, landlords, corporations, and the government, which means I deal with a lot of insurance companies. This is not an attorney advertisement and does not create any attorney-client relationship.
Get it now? The law is a strange, complicated beast. Also, tell people if you have an STI before you bone and take proper precautions, for ham’s sake.