This is NOT a joke in Kansas!

Here's one for the insurance law casebooks! GEICO General Insurance Co. v. M.O., argued today before a three-judge panel of the 8th Circuit Court of Appeals. What follows is based on a report on the Fox News website.

FACTS: An arbitrator in Missouri found that M.O., a Missouri woman and her partner, Martin Brauner, had sex in his 2014 Genesis at least once in December 2017. M.O. asserted that Brauner negligently failed to tell her that he was infected with HPV and failed to use adequate protection to take proper precautions to prevent its transmission to M.O., who contracted the disease which eventually resulted in brain cancer.

In February 2021, M.O. filed a $1 million claim for "past and future medical expenses" and "mental and physical pain and suffering" 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. 

LOWER COURT DECISION: In March 2023, U.S. District Judge Fernando Gaitan Jr. ruled in favour of GEICO, as follows. "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."

ARGUMENT ON APPEAL: M.O. and Brauner appealed that decision to the Eighth Circuit, contending that the language of Brauner's insurance policy is so broad as to justify M.O.'s bodily injury claim. They cited the arbitrator'si award of $5.2 million to M.O. after finding Brauner liable for negligence. "Under the Geico Auto Policy, 'bodily injury means bodily injury to a person, including resulting sickness, disease or death.'"

They argued that since Brauner's insurance policy was issued in Kansas, any ambiguity in the policy should be decided in favour 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."

Attorneys for GEICO disagreed. "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."

QUESTIONS FROM THE COURT:  U.S. Circuit Judges Steven Colloton, Michael Melloy and Raymond Gruender heard these arguments in court today. They 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," he responded, suggesting 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." 

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. 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, he said, 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 Court may issue a decision.