may not be coverage under the homeowner’s policy for a few reasons. First, there is
no such as thing as negligent intrusion
upon seclusion, as discussed above, so
the insuring clause language may not be
met. Second, an intentional-or-expected
injury exclusion may apply, assuming the
insuring language is even met. Third, an
aircraft exclusion may also apply, depending upon how the policy defines “aircraft.”
All kinds of businesses purchase commercial general liability (CGL) policies.
The guiding principle behind general liability insurance is that it does not cover
intended or expected injuries. Along
those lines, the insuring language under
Coverage A requires an accident that
causes injury or damage.
A small-business owner who spies on
an individual could cause her “bodily injury.” Some CGL policies under Coverage
A define “bodily injury” to include mental
anguish, mental injury, shock and fright.
Although the definition of “bodily injury”
may be met, an invasion-of-privacy tort requires intent. Thus, the insuring language
that requires an accident will not be met.
Coverage A typically also has an expected-or-intentional injury exclusion that will be
triggered. Coverage A under a CGL policy
would therefore probably not respond to an
invasion-of-privacy claim because of its intentional nature.
Coverage B under a CGL policy covers
“personal and advertising injury,” so the
drone operator facing an invasion-of-privacy claim should look under that coverage part for potential coverage. Coverage
B’s insuring clause typically provides that
the insurer “will pay those sums that the
insured becomes legally obligated to pay as
damages because of ‘personal and advertising injury’ to which this insurance applies.”
The typical policy defines “personal and advertising injury” as “injury, including consequential ‘bodily injury,’ arising out of …
Oral or written publication, in any manner,
of material that violates a person’s right of
privacy.” Thus, if a lawsuit alleges a violation
of the right of privacy, a CGL policy’s Coverage B may be implicated.
The “Knowing Violation of Rights of An-
other” exclusion in Coverage B may likely
apply, however. The exclusion precludes
advertising injury caused by or at the direc-
tion of the insured with the knowledge that
the act would violate the rights of another
and would inflict “personal and advertis-
ing injury.” This exclusion may therefore
preclude coverage under Coverage B for a
drone invading someone’s privacy.
While drones are relatively new, inva-
sion-of-privacy claims are not. Drones
simply provide a new vehicle for voyeurs
and other ill-intentioned actors to invade a
person’s privacy. As drone technology con-
tinues to advance, it will allow people to in-
vade someone’s privacy with more ease, so
inevitably, more people will do it. Tort-law
and insurance-coverage issues surrounding
drones may not be so different than cases
involving a different and more traditional
vehicle or instrument such as an automo-
bile, model airplane and the like. Most tort
laws protect against negligence and so li-
ability policies cover negligence claims.
However, invasion-of-privacy claims are
intentional in nature and typical liability
insurance will not cover them.
James Michael Shaw, Jr., J.D., is a partner with
Butler Weihmuller Katz Craig LLP in Tampa, Fla.,
where his practice is primarily dedicated to representing insurance companies in coverage disputes and extra-contractual-liability matters. He
is also a co-chair of the aviation practice group.
Ryan K. Hilton, J.D., is a partner with Butler Weihmuller Katz Craig LLP. His practice is primarily
dedicated to representing insurance companies
in coverage disputes. He is a licensed private,
instrument-rated pilot, and serves as co-chair of
the aviation practice group.
As privacy-tort claims against drone-operating
policyholders begin to materialize, insurers need
to be ready to make coverage determinations.