How insurance plays into the Johnny Depp v. Amber Heard defamation trial

February 10, 2023 – The media and community were captivated in the summer months of 2022 when Johnny Depp sued his ex-spouse, Amber Read, for defamation dependent on an short article she wrote, which was published in The Washington Publish, about her working experience with sexual violence.

The case was resolved in June of 2022. The jury dominated in Depp’s favor, and Heard was ordered to spend $8.3 million.

Shockingly, to some, Listened to then appeared to her insurance coverage company to pay the judgment. This is due to the fact Heard’s liability insurance protected defamation. (See “Amber Read data files million-greenback countersuit from insurance company,” Insurance policies Company America, Nov. 25, 2022.)

This is actually not unheard of. Quite a few homeowners coverage insurance policies consist of legal responsibility protection for what is in some cases termed a “personalized personal injury.” “Particular injury” coverage can deal with an insured in opposition to a wide variety of unique torts and offenses. Of the protections furnished by “own damage” coverage, “libel, slander or defamation of character” is frequently incorporated.

Nevertheless, just since an insurance plan addresses additional than bodily personal injury and house harm, and extends to defamation, that does not suggest that protection is usually available when an insured is sued for defamation. Whether or not defamation is coated will depend on the unique mother nature of the defamation, the particular language of the coverage, and how a courtroom interprets that language under relevant regulation.

For instance, some householders insurance policies only cover defamation that is triggered by an “accident.” But defamatory statements are typically created very intentionally. A defamation plaintiff ordinarily has to demonstrate (1) a fake assertion purporting to be point, (2) posted or communicated to a third human being, (3) with legally sufficient fault, and (4) ensuing destruction or damage to track record.

Due to the fact defamation is, by definition, most probable intentional, courts in various states have experienced to closely scrutinize both the plan language and the circumstances surrounding the alleged defamatory statements to appraise protection.

In 2007, a California appellate court in Stellar v. State Farm Standard Ins. Co. seemed at a coverage that lined defamation arising from an “accident.” In the fundamental defamation lawsuit, the plaintiff alleged that his brother experienced falsely informed Boy or girl Protecting Products and services that the plaintiff experienced sexually molested his 8-12 months-aged son, despatched emails to individuals stating that the plaintiff was on prescription drugs and experienced a gambling challenge, and revealed posts on the online referring to the plaintiff as a pedophile.

The court held that for the reason that the criticism alleged that this conduct was “willful and intentional, and arose from an evil incorrect motive,” no protection was accessible.

Even so, this does not indicate that coverage are not able to be accessible for defamation. California courts have also acknowledged that it is doable for defamation to be negligent. As the California appellate court docket put it in 2003 in Uhrich v. Point out Farm Hearth & Casualty Co., “an insured could be liable for defamation for negligently publishing a wrong defamatory assertion.”

Other states follow related methods to California. For example, in 2002, in Iafallo v. Nationwide Mut. Fireplace Ins. Co., a New York appellate division court docket pointed out that “defamation does not manifest by accident and so does not slide in just the protection of the plan” that only covered legal responsibility arising out of an “accident.”

Equally, Texas and Florida courts have located that “own injury” coverage for defamation is not available if the allegedly defamatory statements had been produced voluntarily and intentionally, not inadvertently or by incident.

With this is mind, you begin to question: How can you “accidentally” defame anyone?

Just one of the several examples of “accidental” defamation was reviewed by a California District Court in 2015, in Grange Ins. Ass’n v. Lintott. Particularly, the Court docket used the factual qualifications of the 1952 California Appellate situation, Hellar v. Bianco, to offer an illustration of “accidental publication.”

In Hellar, a girl sued tavern house owners, professing that she was defamed by libelous statements a patron wrote about her on a wall in the men’s restroom. Immediately after the woman alerted the Tavern entrepreneurs to the libelous statements, the homeowners unsuccessful to take out them. The girl asserted that the owners of the tavern should be held liable centered on their inadvertent failure to remove the libelous statements.

The Court docket established that a jury would will need to examine irrespective of whether the tavern house owners were negligent. Even so, given that the tavern owners’ responsibility for the defamatory statements was based mostly only on their alleged negligence, the Grange Ins. Ass’n court docket reasoned that “Hellar demonstrates that defamation can be an accident where the publication of the assertion, not its falsity, is accidental or unintended.”

Set an additional way, the courtroom determined that negligently failing to get rid of defamatory words from a toilet stall may possibly be accidental.

An older (1890) appealing Kentucky appellate situation is Allen v. Wortham, where an allegedly defamatory statement was sent to a spouse and spouse, but unexpectedly “posted” due to the fact the pair was illiterate and had to have some others examine the letter to them.

Although quite a few courts have targeted on no matter if defamation is an accident to identify no matter if coverage is readily available, coverage could continue to be out there for defamation if the policy does not involve an accident to bring about coverage for defamation.

Professional basic legal responsibility guidelines, for instance, usually protect the “offense” of defamation, with out necessitating an incident. Earning a publication with expertise of its falsity is, even so, excluded.

Coverage for defamation could also be restricted by the application of point out laws. For illustration, in California, California Insurance Code section 533 says that an insurance policies business simply cannot indemnify damages brought on by an insured’s willful carry out.

It appears that Amber Heard’s insurance coverage organization feels that protection is not accessible for the judgment entered from her in portion simply because of this Insurance policies Code portion. Heard’s insurance plan business has submitted a declaratory relief lawsuit alleging that it has no responsibility to indemnify Heard mainly because her defamatory conduct was allegedly willful, which cannot be indemnified less than the California Insurance Code.

The insurance plan company’s argument appears to be premised on the heightened standard for defamation, which applies when the individual who was allegedly defamed is a superstar or politician. Generally, a assertion produced about a public determine calls for evidence of “precise malice,” indicating the statement should have been manufactured with understanding that it was false or with reckless disregard of whether or not the assertion was bogus or not.

According to the declaratory reduction complaint towards Heard, in the Depp v. Heard situation, this heightened standard was utilized. The jury determined that Heard’s statements ended up with actual malice and awarded punitive damages.

It stays to be witnessed how the protection fight in between Read and her coverage corporation will take care of.

Protection for defamation is very dependent on the specifics of the problem, the plan language at issue, and applicable regulations. Just before hitting “ship” on an indignant “reply all” e mail or submitting that clever but derogatory social media post, perhaps believe about using a minute to search at your legal responsibility insurance policy.

Erin Mindoro Ezra is a standard contributing columnist on coverage protection for Reuters Lawful Information and Westlaw These days.

Thoughts expressed are those people of the writer. They do not replicate the views of Reuters News, which, less than the Rely on Ideas, is committed to integrity, independence, and liberty from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters Information.