“YOU SUCK!”: Your Personal Lines Clients and Their Tweets, FB Posts and Yelps!

Recently I ordered a pizza from a national chain (no, not the one you’re thinking) and it was quite late arriving at my home. So late, in fact, that I called the store 45 minutes after I placed my order to find out when I might expect delivery.

“The driver left for your house about 10 minutes ago,” said the manager. “He should be there in just a few minutes.” It was 5:46 when I called.

A little after 6:00, more than an hour after I placed my order, the driver finally showed. Out of frustration and curiosity I asked the driver, “What time did you leave the store?” The driver’s response, “About 15 minutes ago.” He left AFTER I called. Someone wasn’t telling the truth. (The pizza was very good, though.)

What if I (or any of your clients) tweeted (Facebooked or Yelped) that this shop was a bunch of liars and no one should ever order from there? My thousands of followers (I don’t have thousands, maybe dozens, but just for sake of the argument…) would see my post and stop ordering, causing the pizza shop to lose revenue (probably only for the short term, though). Consider also that if the tweet is retweeted, even more people will see the post.

Let’s change the scenario. One of your clients has a bad experience at a local auto repair shop and tweets that the shop can’t be trusted. Or that a local doctor is a quack who wouldn’t recognize a disease if he caught it himself. Again, these tweets might be retweeted by dozens of people. The total audience reached may be far greater than the “tweeter” anticipated.

Frustration and an easily available “outlet” may cause your insureds to post things in the heat of the moment without thought of the consequences – or that there might BE any consequences. If there are consequences, such as a libel, slander or defamation of character lawsuit, how would the Homeowners’ insurance policy respond?

The Homeowners’ Policy and Tweets (Facebook Posts and Yelps)

Libel, slander and defamation of character are defined as “personal injury” in the insurance world. Unendorsed homeowners’ policies do not provide “personal injury” coverage; it’s not excluded, coverage is just not granted.

Insurance Services Office’s (ISO’s) standard, unendorsed HO 00 03, for example, does not define personal injury nor does the Section II – “Liability Coverages” – insuring agreement anticipate protecting against charges of personal injury. Coverage is limited to bodily injury and property damage; both defined terms with neither definition including “personal injury” as a component part.

In short, the cost to defend a personal injury suit and pay any resulting judgment is borne solely by the homeowner – UNLESS personal injury coverage is endorsed onto the homeowners’ policy.

Garnering personal injury coverage, however, is as simple as attaching the Personal Injury endorsement – HO 24 82 (or any state-specific version) – to any of ISO’s homeowners’ policy. The HO 24 82 is readily available on a stand-alone basis or included as part of a package of enhancement endorsements offered by many carriers. Adding the personal injury endorsement on a stand-alone basis rather than as part of a separate enhancement package costs less than $25 per year with the premium ranging between $13 and $25 based on the liability limits carried.

How the Personal Injury Endorsement Respond to Tweets (and Other Social Media)

Reviewing selected parts of the definition and exclusions contained in the HO 24 82 clarifies how the endorsement responds to personal injury lawsuits arising out of tweets. The “tweet-related” parts of the personal injury definition are:

“‘Personal injury’ means injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period:…

4. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; or
5. Oral or written publication of material that violates a person’s right of privacy.”

Tweet-related personal injury exclusions include:

“‘Personal Injury’:

1. Arising out of oral or written publication of material, if done by or at the direction of an insured with knowledge of its falsity;
2. Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;… and
3. Arising out of or in connection with a “business” conducted from an “insured location” or engaged in by an “insured”, whether or not the “business” is owned or operated by an “insured” or employs of an insured…”

Four specific coverage requirements become apparent when reviewing this spotlighted wording:

• The claimant must have suffered personal injury during the policy period;
• For coverage to apply, the insured must be unaware that the information was false (truth is a defense);
• The material causing the supposed injury must have been originally published during the policy period; and
• The tweet or twitter account must not be related to the insured’s business.

Viewed in the light of this four-part test, coverage for tweet-related suits seems rather narrow. To be protected, the publication of the offending tweet and the supposed personal injury must be suffered during the policy period. Tweets don’t necessarily have a “time limit;” A tweet posted today might remain accessible and viewable for several days, months or years before the “target”/claimant sees it or is harmed by the post.

Which Policy Responds to the Tweet

Coverage applicability may depend on the question, “when is personal injury actually suffered?” Is it at the time of the publication; when it’s read by the claimant; or when the effects of the tweet are felt by the subject of the post? Knowing when personal injury “occurs” is of utmost importance in deciding which policy responds, especially if coverage has just recently been endorsed onto the policy.

For example, a tweet is posted on December 1 and the subject of the post reads the tweet December 6. The policy expired and was renewed December 2. Did the personal injury occur the day the post was made available to the public or the day the person read about themselves?

Let’s use the pizza shop to go a step further in this question of “when injury occurs.” Three months after my post, the manager notices that the shop’s receipts have dropped drastically; the loss of income is attributed to and ultimately proven to be attributable to my tweet. Did the injury occur when sales began to plummet – which was after the policy renewed – or at another time?

Most courts hold that libel/defamation occurs when the information is initially published and available to be seen by the public. December 1 is the date of personal injury in the above example and the policy in effect on that date responds. If the Personal Injury endorsement was not attached to the expiring policy, there would be no coverage – even if the renewal policy had the endorsement.

Confirm Protection and Warn

Social media (Twitter, Facebook, LinkedIn, Yelp, etc.) has changed the personal injury landscape. Now everyone participating in social media has the opportunity to publish their thoughts and opinions beyond just their friends and family. A tweet or Facebook post has the potential to be seen by thousands of people (interested and disinterested).

An agent’s duty is to confirm that personal injury protection is in place for all of their homeowners’ clients (whether they are owners or renters). Agents may also consider explaining to their homeowners’ clients the dangers surrounding disparaging someone or some business on social media (even if what they say is true). Such a service could be beneficial to you and your client.

By the way, the best advice an agent can give… “Don’t tweet it, Facebook it, Yelp it or say it if you don’t want to defend it in court.”

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Topics Homeowners Personal Lines