Yachts, Sex, And Insurance!

     During the past four decades, this country has experienced a
sexual revolution which has brought about many consequences.  One
of  the unpleasant consequences has been the substantial increase
in  sexually transmitted disease.  This problem has compelled the
need  for  increased candor among couples contemplating a  sexual
relationship.    Some  individuals are  quite  open  about  their
sexual  history  and any sexually transmitted diseases  they  may
have contracted.  Others, unfortunately, disclose nothing.

      As couples confront these challenges more frequently, so do
the  courts as an increasing number of plaintiffs sue for damages
for  having contracted a sexually transmitted disease from  their
partner.

      In a recent decision of the Court of Appeals in California,
the  consequences of transmission of herpes, an incurable  sexual
disease,  was considered in the context of an insurance  coverage
dispute.

      During  1995, a lady instituted a suit in which she alleged
that  she  began dating the defendant during August of  1994  and
began having a sexual relationship with him during the period  of
September  through December of 1994.  In December  of  1994,  she
developed vaginal lesions which were diagnosed as being caused by
the herpes I and II viruses.  According to the decision, she

                "allegedly  confronted  [the  man]  who
          admitted that she was not the first woman who
          had  accused him of transmitting  the  herpes
          virus to her; that he knew he had herpes; and
          that  he  used 'home remedies' to combat  the
          virus.  He also admitted to [her] that during
          their    sexual    relationship,    he    was
          simultaneously    conducting     a     sexual
          relationship  with  another  woman  who   has
          active  herpes I and II viruses and  that  he
          previously had a sexual relationship with yet
          another woman who had the disease."

The  woman  instituted  her suit alleging causes  of  action  for
negligence,  battery, intentional transmission  of  an  incurable
disease, and fraud.

       The  defendant  eventually  settled  with  the  plaintiff,
according to the decision, for "$120,000 and paid his own  lawyer
some $20,000 in attorney's fees."

      Prior to the settlement, the defendant tendered the defense
of  the suit to an insurance carrier which maintained a liability
insurance  policy on his 42-foot yacht harbored  in  Long  Beach.
The  carrier  denied  the request for coverage  and  declined  to
defend him against the suit.

      Why  submit such a lawsuit to the insurance carrier of  his
yacht?  Read further.  The defendant argued that

                "his  yacht  was 'used'  -  within  the
          meaning  of  his boat insurance policy  -  to
          transmit  the herpes virus from his mouth  to
          his  girlfriend's genitals he [reasoned] that
          his  large pleasure craft was 'a sign of  his
          wealth  and  status' which 'fostered  romance
          and sexual conduct' leading ineluctably to  a
          specific of sexual activity - oral copulation
          - which transmitted the pernicious virus."

      The  man  sued his insurance carrier for breach of contract
and  bad  faith,  alleging that the carrier was required  to  pay
damages  "for  any claim or suit covered under [the]  policy  for
bodily  injury . . . for which any insured person becomes legally
liable  through the ownership, maintenance or use of the  insured
boat."   The  trial court granted the insurance carrier's  motion
for summary judgment and the Court of Appeal affirmed.

     The Court of Appeal noted that the movement of the yacht and
its  manner  of  operation was not a contributing  cause  to  the
transmission of herpes.  The Court noted that the man

                "is not claiming that his yacht plunged
          into  a  wave trough, causing him to  stumble
          and  fall,  mouth  open,  onto  [the  lady's]
          vagina.  Rather, the yacht merely provided  a
          situs  -  along  with [his] house  and  [her]
          house  -  wherein [he] executed his  plan  to
          engage  in  a  variety of 'very  free  sexual
          activities' with [her].  This is not the type
          of  boat  'use' contemplated by  [his]  yacht
          policy."

      The moral of the story?  By land or by sea - silence is not
always golden.  If you plan to kiss, you must tell!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1998-2002