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Tuesday, December 13, 2005

Expensive Yacht Only "Incidental" to Oral Sex

Here's a nice contract interpretation problem, from Buy This Book or We'll Sue You, by Laura & Attila Benko.  The case is Peters v. Firemen's Insurance Co., 67 Cal. App. 4th 808, 79 Cal. Rptr. 2d 326 (2d Dist. 1998).

Yacht Seems a Southern California man, appropriately named Peters, had a 42-foot yacht (no, this isn't it, it's just for illustration), which he used primarily to impress women.  "His large pleasure craft," he told the court, "was 'a sign of his wealth and status' which 'fostered romance and sexual conduct.'"  The yacht was covered by a Firemen's Insurance policy.  Peters took a woman on a "sex-filled sailing adventure" to Catalina Island.  Although he had been having sex with the woman for two months, it was the opulence of the boat and the romantic sale that, he said, finally led her to consent to mutual oral sex.

Unfortunately, the oral sex resulted in genital herpes.  She sued.  Peters claimed coverage from the insurer, citing the policy provision that covered any "claim or suit covered under this policy for bodily injury or property damage for which any insured person becomes legally liable through the ownership, maintenance or use of the insured boat."  Peters argued, naturally enough, that herpes is a bodily injury and that on-board sex was incurred in his "use" of the vessel.

A trial court dismissed the claim and the California Court of Appeals ultimately affirmed:

Applying the Kohl standard [regarding the meaning if "use" in insurance policies] to the case at bench, it is apparent that the extrinsic facts raised by appellant do not come within the "use" provision of his yacht policy.  Neither the movement of appellant's yacht nor the manner of its operation had anything to do with the transmission of the herpes virus from appellant to Susan L.  Appellant is not claiming that his yacht plunged into a wave trough, causing him to stumble and fall, mouth open, onto Susan L.'s vagina.  Rather, the yacht merely provided a situs -- along with appellant's house and Susan L.'s house -- wherein appellant executed his plan to engage in a variety of "very free sexual activities" with Susan L. This is not the type of boat "use" contemplated by appellant's yacht policy.

The insured didn't give up with a fight, though:

Appellant [hypothesizes] that the disease may have been transmitted if "he helped steady [Susan L.] on the rocky boat" or if the amorous couple hit an ocean swell causing them to fall and a herpes infection on his finger caused a herpes infection on her finger which was then somehow transferred to her vagina.  Apart from its absurdity, appellant's speculation is unsupported by the record.  There is no proof that appellant ever steadied Susan L. on the boat, and certainly not by grabbing her crotch.  Moreover, there is no proof that either appellant or Susan had open herpes lesions on their hands.  Appellant is simply fabricating outlandish theories.

[Frank Snyder]

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