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Vol. 11 - Issue 2

February 28, 2022


Court Addresses An Unusual Aspect Of The “What Is A ‘Claim’” Question


Courts often address whether something qualifies as a “claim” in the context of considering whether coverage is owed.  The issue usually arises with a “claims made” policy and whether a demand made against an insured, or an insured’s knowledge of a situation, is a “claim.”  This can be for purposes of determining if a “claim” has been made against an insured during a certain policy period or whether an obligation to give notice to an insurer has arisen.
The “what is a ‘claim’” question arose in Roadway Services v. Travelers Cas. & Sur. Co., No. 20-2777 (N.D. Ohio Jan. 6, 2022) -- but not the way I just described it.  Here, an employee of Roadway Services was killed, when struck by an automobile, while working on a repaving project.  The widow of the decedent filed suit against Roadway, alleging an intentional tort.  In other words, she was making an effort to circumvent the state’s worker’s compensation bar.

Roadway sought coverage under a multi-part policy issued by Travelers.  One of the three coverage parts was applicable – Travelers “will pay on behalf of [...] the Insured Organization, Loss for Wrongful Acts, resulting from any Claim first made during the Policy Period.”  The policy defined a “Claim” as including “1. a written demand [...] for monetary damages or non-monetary relief” or “2. a civil proceeding commenced by service of a complaint or similar pleading.”

At issue was the applicability of the following policy exclusion: “The Company will not be liable for Loss for any Claim for any bodily injury, sickness, disease, death, loss of consortium, emotional distress, mental anguish, humiliation, loss of reputation, libel, slander, oral or written publication of defamatory or disparaging material, or invasion of privacy.”

Of note, this exclusion contained as exception, stating that it will not apply to “any ‘Claim’ for emotional distress, mental anguish, or humiliation with respect to any employment related Wrongful Act.”

It was not disputed that the case involved an employment related Wrongful Act.

Travelers argued that no coverage was owed on account of the aforementioned exclusion for bodily injury, death, etc. and there was no “claim” for emotional distress or mental anguish to trigger the exception.

Roadway, however, argued that the exception applied -- as the widow alleged, in her request for relief, that she suffered mental anguish and sorrow.

But, as Travelers saw it, this was not a “claim” for mental anguish and sorrow, as there was no cause of action asserted for it.  Rather, mental anguish was only alleged by the widow as part of her damages. 

The court concluded that a “claim,” as defined under the policy, had been made for mental anguish: “The first definition squarely applies here. By including a request for damages associated with mental anguish in her complaint, Ms. Soto has made ‘a written demand [...] for monetary damages’ related to her mental anguish.”

“While it is true,” the court observed, “that the word claim often means cause of action, that is not the definition that Travelers has included in the D&O Policy.” 

The court was also persuaded by the language of the exclusion, which applied to any Claim for any bodily injury, sickness, disease, humiliation, etc.  “Those Claims are not causes of action,” the court observed. “A plaintiff cannot assert a cause of action for sickness or disease, for example. Therefore, Travelers’ proposed definition of Claim as being a cause of action does not make sense in the context of the contract.”




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