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No Insurer Bad Faith in Denial of Adultery Claim

Disregarding whether a South Dakota man really intended to break up his lover's marriage, the 8th U.S. Circuit Court of Appeals has ruled that his insurer had no duty to defend him from an alienation of affections suit.

Judson Pins' personal liability policy excluded bodily injuries “expected or intended by” the insured. State Farm invoked that exclusion in refusing to represent him after Gery Baar sued him for alienating the affections of Baar's wife.

The South Dakota Supreme Court has not considered whether the injury caused by an alienation of affections is an accidental loss covered by insurance. Pins, represented by his own attorney, reached a settlement with Baar and then sued State Farm for bad faith.

In February 2005, Chief U.S. District Judge Lawrence L. Piersol granted Pins partial summary judgment against the insurer. An unintended result of wrongful sexual conduct is a covered accident, he said in his ruling, and

The intent to inflict bodily injury on an individual cannot be inferred from the act of having consensual sexual relations with that individual's spouse. Adults have consensual sex for reasons other than to entice their sexual partner's affections away from his or her spouse.

But last week, the 8th Circuit reversed Piersol, finding that “intent to injure the marital relationship, not just wrongful sexual conduct” is an “essential element” of the tort of alienation of affections.

“[T]he comfort and consortium injuries alleged by Baar were sufficient to state a claim for alienation of affections, and under South Dakota law, Baar could not recover on this claim unless he proved that Pins intended to cause those specific injuries,” the opinion said. “In these circumstances, any 'loss' to Baar was 'expected or intended' by Pins and could not be deemed an 'accident.'”

Piersol, however, had distinguished between analyzing whether Pins was covered by insurance and analyzing whether Barr had proven the elements of his claim.

To determine whether coverage exists, he said, “This Court need only determine whether Pins intentionally caused the dissolution of Baar's marriage by having sexual relations with Denise Baar.”

Whatever the correct analysis of the bad-faith claim may be, the case only confirms that alienation of affections is an archaic tort that should be abolished in every state.

By Matthew Heller
2/12/07