Privacy Law

Litigants claiming GEICO auto policy covers STD from car sex can't proceed anonymously, judge rules

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A car owner and his sexual partner can’t keep their names secret in litigation over their claim that GEICO’s auto and umbrella policies cover damages for a sexually transmitted disease contracted during sex in the insured car.

U.S. Magistrate Judge Angel D. Mitchell of Topeka, Kansas, ruled in a revised opinion dated Oct. 4.

The Volokh Conspiracy noted the decision.

GEICO had identified the litigants as M.B. and M.O. in its suit seeking a declaratory judgment that its policies do not cover M.O.’s injuries for contracting the human papillomavirus from M.B. GEICO insured M.B.’s Hyundai Genesis under an auto policy and a second umbrella policy that applies only if auto coverage kicks in.

M.B. and M.O. had agreed to limit M.B.’s liability in a settlement agreement that left M.O. free to pursue recovery against GEICO. The insurer did not know that M.B. and M.O. submitted the dispute to arbitration, which resulted in a $5.2 million award to M.O. M.O. then demanded $1 million from GEICO.

GEICO claimed that it wasn’t told of the arbitration, so it wouldn’t intervene and be heard, and so M.O. could obtain an artificially inflated award.

M.B. responded that GEICO had an obligation to pay, and its refusal to do so constituted bad faith. M.O. claimed a lack of personal jurisdiction in Kansas because she and M.B. had sex in Missouri.

Mitchell said the parties would be allowed to remain anonymous until her ruling on M.O.’s motion to dismiss. After that, GEICO must file a second amended complaint identifying the remaining defendants by their real names, or Mitchell will recommend that the case be dismissed for lack of subject matter jurisdiction.

Mitchell noted precedent by the 10th U.S. Circuit Court of Appeals at Denver holding that the risk of some embarrassment is not reason enough to proceed anonymously.

M.O. and M.B. characterize the case as one involving intimate details of their sexual relationship. But that doesn’t accurately characterize the nature of the case, Mitchell said.

The insurance policies at issue appear to be like may others, and an interpretation of the policies could have far-reaching implications, Mitchell said.

“This case presents novel and potentially important issues about whether an insurance carrier can be held liable under such policies for the consequences of two adults voluntarily having unprotected sex in the insured’s automobile. …

“Furthermore, any allegedly private details became less private (although the court questions how private those details actually were if they were having sex in a car) when M.O. sent GEICO a demand letter making an insurance coverage claim. By doing so, she brought any arguably private matters into the more public domain. …

“In short, M.O. and M.B. foisted this matter into a public court proceeding.”

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