Can an intentional attack carried out through social media trigger liability coverage? A recent Pennsylvania case found potential coverage under a homeowner’s policy for a case of cyber bullying that ended in the suicide of the victim. The court found that the intentional actions of the insured’s son constituted an accident, and therefore an occurrence, because the claim in part alleged negligence and because the actions of the victim were not necessarily expected from the standpoint of the insured. This specific situation is, of course, unlikely to arise in the context of a businesses concerned about social media risks, but the underlying reasoning may be useful in assessing potential coverage for other intentional acts carried out over social media or other communications technology.

In the general liability context, one of the most frequently litigated issues involves the definition of occurrence, which usually incorporates the idea of an accident. An obviously intentional act by an insured person, such as a direct physical assault, can fall outside the scope of a general liability policy (depending on its terms) if it cannot be considered an occurrence or if it triggers an exclusion for intentional acts. Insurers have sometimes challenged intentional communications over texts or social media on these grounds. At the same time, an intentional act may form part of a larger constellation of actions taken by multiple actors, may involve negligent as well as intentional conduct, and may produce unforeseen consequences for the recipient. In State Farm Fire and Casualty Company v. Motta, 356 F.Supp.3d 457 (E.D. Penn. 2018), the district court relied upon these factors and held that the insurer had a duty to defend a teenager accused of cyber bullying.

The district court described a pattern of cyber bullying and harassment of a high school girl, Julia Morath, by a classmate, Zach Trimbur, culminating in a vicious text message that prompted the school to suspend Mr. Trimbur when it was reported. He continued to harass Ms. Morath after his suspension, and she committed suicide the next day. Her parents filed suit against Mr. Trimbur and his parents, who made a claim under their homeowners’ policy. State Farm provided a defense under a reservation of rights but filed a separate action seeking a declaration of no coverage because cyber bullying was “inherently non-accidental” and thus the injury could not have arisen from an occurrence.

The court rejected this claim. The court first acknowledged Pennsylvania cases holding that alleged faulty workmanship was not sufficiently “unexpected” to constitute an accident. Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006). The court also recognized that allegations of bodily injury caused directly by “willful and malicious assault and beating” described an intentional tort rather than an accident. Gene’s Restaurant, Inc. v. Nationwide Ins. Co., 548 A.2d 246 (1988).  The court, however, distinguished these cases and their progeny on the basis of several factors. First, Pennsylvania tort law generally considers suicide to be an independent act not reasonably foreseeable by a tortfeasor, so Ms. Morath’s suicide was at least potentially unexpected from the standpoint of Mr. Trimbur. Second, the lawsuit alleged a negligence claim against both Mr. Trimbur and his parents, and courts traditionally recognize a duty to defend when negligent conduct contributes to death at the hands of another person. Finally, the court emphasized that the duty to defend rested only upon the allegations of the compliant and the policy terms, not the underlying culpability or state of mind of Mr. Trimbur. The duty to indemnify, by contrast, might be very different once the underlying facts were established.

This case illustrates that even an undeniably intentional act, such as the transmission of an abusive and bullying text to a victim, may trigger a duty to defend when it forms part of a larger set of allegations involving negligence or unexpected consequences. Policyholders should therefore carefully consider whether other intentional acts or communications carried out over social media might also trigger a duty to defend under a general liability policy in light of the allegations as a whole and any unforeseeable actions taken by a third party.