Prudential Insurance Co.'s homeowner's policy, better known for paying off victims of icy sidewalks and tainted crabmeat, last week paid $25,000 to a Minneapolis herpes victim who ended up with more than a piece of the rock from her policyholder-lover.
Actuaries from Hartford to the kingdom of Geico are now reeling.
"We are finding ourselves in the midst of a sociological phenomenon," said one insurance executive as others scrambled to rewrite policies to exclude a homeowner's liability for transmitting social diseases.
Not the least of them is Prudential.
"I can't say we're pleased," said William J. Belinski, the company's vice president and general counsel. "But based on the totality of the facts, this was the most prudent course. The homeowner's policy was . . . clearly never intended to cover this. Any time you have a case like this, companies re-examine policies to see if we can write additional clarification or protection. We will certainly be one of those companies, I can tell you."
In general, homeowner policies provide coverage for property and liability. Under the liability portion, the insurance company can pay up to the limit if a claim is made against the homeowner for bodily injury, defined as bodily harm, sickness or disease.
Courts have been pushing the limits of liability out of the icy sidewalk category in recent years, even to holding policyholders liable for serving liquor to guests who end up in drunken-driving accidents. But in general, insurance executives say, the policy has stayed out of the bedroom.
Stewart Perry, the woman's lawyer, has been flooded with calls from other herpes victims, lawyers and reporters.
Asked who leaked the story, Perry said, "I plead guilty. I did it! I asked my client first. I said it was significant to inform other unknowing victims that there can be a remedy. I know of no other case in which the homeowner's policy has been gone after in the case of herpes."
"I'm not so sure we're not starting a revolution," Perry said as he mused over the possibilities. AIDS? . . . Gonorrhea? . . . How clear is it that the person contracted it from a certain person? Herpes has a very short incubation period, from three to 10 days. To pinpoint the actual partner is much easier than with AIDS or something else."
Was his client's relationship, when she contracted herpes three years ago, monogamous? "From her side of the fence it was." Did she know her lover had herpes? She did not. "Then the next thing was, did he have a homeowner's policy?"
Consent and intent played a part in the argument. Prudential charged the relationship was "consensual" and thus liability-free, but Perry demurred. "She only consented to having sex with 'X' -- not sex with 'X' with herpes," he said.
Insurance companies do not pay off on "intentional" damages, but Perry persuaded Prudential that the man "intended to sleep with her, he didn't intend to infect her."
Perry said the man contracted herpes 10 years ago and never told his client, who is a university student. "In fairness, he tried to be careful but was not obviously always successful."
"Obviously this herpes case is going to cause insurance companies to rethink what's covered by their policies. The man had nothing to lose in the claim because it did not come out of his pocket," noted Marc Rosenberg, vice president of the Insurance Information Institute, a clearinghouse for the insurance industry. "That's what gives insurance company fits. If we are establishing a legal precedent here, is homeowner insurance liable not just for herpes? Suppose his condom failed and she's unwillingly pregnant? Or someone contracts gonorrhea or AIDS? It could be possible that before someone is issued a homeowner's policy, the insurance company would demand a complete medical workup. Who is a high or low risk?"
August Alegi, vice president and deputy general counsel for Geico, however, feels the herpes case is isolated.
"You would have to get a lot of herpes cases before there are changes in the language in the policy. It's a lot easier to just raise the rates 20 cents. I think we would have tended to fight it."
Alegi thought long and hard but could not come up with a Geico case comparable to the Minneapolis herpes case. "The closest -- and I am not sure it isn't apocryphal -- is one where a teen-age boy got a girl pregnant in the back seat of a car and the girl's parents wanted the company to pay for her medical expenses."
Even though the payoff came from a homeowner's policy, the victim didn't have to prove it happened at her lover's home.
"Your homeowner's insurance follows you around like a puppy dog," said Perry.
In fact, it did happen at his house, but that didn't matter, at least in Minneapolis, where homeowner's coverage has been broadly interpreted.
Perry, in researching his claim, cited two court cases: a Washington state judge awarded $40,000 to a woman who contracted herpes from her husband and an Iowa woman received $50,000 after suing her ex-husband for infecting her with the disease.
"Once we convinced the insurance company we had a cause of action based on these two court verdicts, they decided to settle. I had a very likable client, an innocent woman who has been emotionally devastated by this disease."
An estimated 20 million Americans are infected with genital herpes, a sexually transmitted disease that has been called the plague of the singles bar set. Sporadic in its outbreaks and generally dormant, it has no known cure.
Perry said he has already talked to women seeking his counsel who are as angry and upset as his client.
The Insurance Service Organization (ISO), a nonprofit organization that writes policy language for many smaller insurance companies, will go to work soon on wording to keep social diseases out of the liability picture.
Maybe they'll call it a cost-of-loving clause.