Who Should Pay - A Bully's Parents Or Their Insurer?
If a teenage bully causes physical or psychological injuries who should pay for those injuries? Should it be the bully's parents for failing to control their child and prevent the bullying or should it be their insurer? If your initial reaction is that the insurer should not be resp0nsible for the parents "not doing their jobs" consider that the insurer is responsible for the homeowners "not doing other jobs" that cause harm such as not shovelling snow or not clearing icy sidewalks.
The answer to who should pay, of course, depends on the precise wording of the insurance contract. That said, an Ontario Court of Appeal decision has evaluated the wording of one insurance contract and determined that the insurer was not responsible to pay for any injuries or for the costs of defending the litigation when the parents of an alleged bully were sued.
Three grade eight girls allegedly bullied a classmate causing physical and psychological injuries. The bullied girl sued the parents of one of the alleged bullies who requested that their insurer defend the litigation and be responsible for any losses. The insurer declined coverage on the basis that the policy contained an exclusion clause which stated:
Exclusions
We do not insure claims arising from:
6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:
(a) any person insured by this policy; or
(b) any other person at the direction of any person insured by this policy;
7.(a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or
(b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.
The insurer reasoned that the failure to prevent the bullying fell within clause (b) of failure to prevent abuse.
At trial the judge disagreed. He reasoned that the failure to take steps did not state whether the failure needed to be intentional or merely negligent. Since , in his view, this issue was ambiguous, he relied on the doctrine of contra proferentem which requires that exclusion clauses be interpreted narrowly. He found that the insurer was obligated to defend the litigation.
The insurer appealed, successfully. The Court of Appeal evaluated the pleadings and determined that the grounds of the case were that the parents had acted negligently in failing to control their child and in failing to prevent the bullying. Since what was pleaded was negligence, no ambiguity existed. The clause which excluded litigation based on "failure to take steps to prevent" psychological abuse applied.
The Lesson: Not all negligence will be covered by your homeowner's insurance policy. If you want specific coverage to cover things based on the actions of your children, or other persons, speak to your lawyer about what will be covered by your policy. Alternatively, speak to your insurer to obtain the additional insurance.
Unifund Assurance Company v D.E. 2015 ONCA 423 https://www.canlii.org/en/on/onca/doc/2015/2015onca423/2015onca423.pdf
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