Although insurance law sometimes has the reputation of being “dry” and boring, as marine insurance practitioners, we come across a variety of cases that show how interesting and creative insurers and claimants can be.
One example we recently discovered was Peters v. Firemen's Ins. Co., 67 Cal. App. 4th 808 (1998), in which the issue was the scope of the word "use" in an insurance policy covering a luxury yacht. The insured had been sued in an underlying action by an ex-girlfriend for negligence, battery, intentional transmission of an incurable disease (herpes), and fraud. The insured yacht owner tendered the action to Firemen's, his liability insurer. Firemen's denied coverage on the ground, in pertinent part, that the liability did not arise out of the "use" of the yacht. The underlying action settled, and the insured then filed a lawsuit against Firemen's for its failure to defend and indemnify him.
While the complaint in the underlying action mentioned nothing about a boat, the insured maintained that the policy provided coverage for the action because it arose out of the "ownership, maintenance or use" of his yacht. The trial court granted summary judgment to Firemen's, and the insured appealed.
On appeal, the insured argued that it was a "fateful romantic boat voyage at Thanksgiving" that caused the damage, because it was the "prestigious" yacht that led to the "sexfilled sailing adventure and oral copulation which resulted in the transmission of the herpes virus." Id. at 812.
In a brief opinion, the appellate court disagreed and found that there was no causal connection between the yacht and the transmission of the disease, stating:
[I]t is apparent that the extrinsic facts raised by appellant do not come within the "use" provision of his yacht policy. Neither the movement of appellant's yacht nor the manner of its operation had anything to do with the transmission of the herpes virus from appellant to Susan L. Appellant is not claiming that his yacht plunged into a wave trough, causing him to stumble and fall, mouth open, onto Susan L.'s vagina. Rather, the yacht merely provided a situs--along with appellant's house and Susan L.'s house--wherein appellant executed his plan to engage in a variety of "very free sexual activities" with Susan L. This is not the type of boat "use" contemplated by appellant's yacht policy. Id. at 813.
The court also noted the following in a footnote:
Appellant does, however, hypothesize that the disease may have been transmitted if "he helped steady [Susan L.] on the rocky boat" or if the amorous couple hit an ocean swell causing them to fall and a herpes infection on his finger caused a herpes infection on her finger which was then somehow transferred to her vagina. Apart from its absurdity, appellant's speculation is unsupported by the record. There is no proof that appellant ever steadied Susan L. on the boat, and certainly not by grabbing her crotch. . . . Appellant cannot establish a potential for coverage unless there are some colorable facts supporting his theories.
Further proof that even marine insurance law need not always be boring.
