A federal appeals court on Wednesday heard arguments over whether car insurance should pay out benefits to a woman who caught a sexually transmitted disease from a policyholder in his insured vehicle.
In GEICO General Insurance Co. v. M.O., a Missouri woman, the titular M.O., claims that her partner, Martin Brauner, negligently infected her with human papillomavirus (HPV) after they had sex in his 2014 Hyundai Genesis. She claims Brauner was aware he had HPV but neglected to inform her before they had unprotected sex, resulting in "past and future medical expenses" and "mental and physical pain and suffering," court documents state.
In February 2021, M.O. filed a $1 million claim against Brauner and his insurer, Maryland-based GEICO, claiming she should be compensated for bodily injury under the car's insurance policy. GEICO refused to pay the claim, arguing that the injury did not occur in the "normal" use of the automobile.
In March 2023, U.S. District Judge Fernando Gaitan Jr. gave a favorable ruling to GEICO.
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"Upon review of the parties’ arguments, the court finds that consensual sexual relations inside a car do not constitute a 'use' of the automobile within the meaning of the subject policy," the judge wrote in his decision.
But M.O. and Brauner appealed to the Eighth Circuit to have the district court's decision reversed. The couple contends that the language of Brauner's insurance policy is so broad as to justify M.O.'s bodily injury claim stemming from her HPV infection and subsequent development of brain cancer. Their brief cites how a Missouri arbitrator awarded M.O. $5.2 million from Brauner after finding him liable for negligence.
"M.O. and Brauner engaged in sexual activity in Brauner's 2014 Hyundai Genesis at least once as of December 2017. M.O. claims that Brauner negligently failed to tell M.O. that Brauner was infected with HPV and failed to use adequate protection to take proper precautions to prevent its transmission to M.O.," the brief states.
"Under the Geico Auto Policy, 'bodily injury means bodily injury to a person, including resulting sickness, disease or death.'"
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The couple assert that since Brauner's insurance policy was issued in Kansas, any ambiguity in the policy should be decided in favor of the insureds, according to state law.
"If the Policy is ambiguous, the Kansas law requires it be interpreted in favor of Brauner and coverage," the brief states.
Attorneys for GEICO disagree. "The Auto Policy does not cover liability for injury caused by the transmission of a sexually-transmitted disease merely on the basis that a covered vehicle was used as a shelter for, or as the situs of, sexual activity," GEICO wrote in its brief.
A three-judge panel consisting of U.S. Circuit Judges Steven Colloton, Michael Melloy and Raymond Gruender heard these arguments in court on Wednesday.
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The judges questioned M.O.'s attorney, David Mayer, on whether his client's argument would make GEICO responsible for every unwanted pregnancy that might have occurred in an automobile.
"I don't believe that's a cause of action but that's a good question," Mayer responded. He suggested that pregnancies may not be "bodily injuries," but STDs and cancer are.
"This was a bodily injury. This poor lady received cancer and it's terrible. It's a bad situation," Mayer said.
GEICO attorney Douglas Beck told the court the insurance policy should only apply when "using an auto as an auto… for vehicular purposes." He pointed to case law in Kansas that denied people coverage for injuries that were "not identifiable with the normal use of an auto."
But the panel was concerned that the meaning of "normal use of an auto" is ambiguous. "It's foreseeable that people are going to have sex in the car, I mean, that's clearly foreseeable, right?" one of the judges asked.
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Beck argued that a covered incident must be related to the "foreseeable and reasonable" use of a car, which is "not the same thing as conceivability." People hypothetically could use a car to have sex, the logic goes, but that does not mean it is an appropriate use of the vehicle that should be covered by insurance.
And by quibbling over the meaning of what is an "appropriate" use of a car, Beck told the judges, "you are turning what is an automobile policy into a general liability policy without restriction."
The arguments concluded with no indication of when the panel may issue a decision.
A GEICO spokesman declined to comment on pending litigation. Attorneys for the defendant/appellants did not respond to requests for comment.
