Hepler Broom, LLC

Don’t Have Excess or Umbrella Coverage? Be Careful, Your Negative Online Review May Leave You Howling at the Moon!

March 2, 2015

Antonia Neshev is a Bulgarian artist who moved to Colorado in the mid-1990s to become a wildlife instructor and T-shirt decorator. In the late 2000s she designed a T-shirt that depicted three wolves howling at the moon. The manufacturer sold the shirts through Amazon, which of course allows customers to post product reviews. Brian Govern, then a 32-year-old law student in New Jersey (it’s a always a law student) was so moved by the shirt that he decided to post a review on the site.

“This item has wolves on it which makes it intrinsically sweet and worth 5 stars by itself, but once I tried it on, that’s when the magic happened”, began Govern. He claimed that the shirt garnered him positive attention from members of the opposite sex, which he politely deflected. As he put it, “[F]rankly a man with a wolf-shirt shouldn’t settle for the first thing that comes to him.” He concluded his review with a concise list of Pros and Cons:

Pros: Fits my girthy frame, has wolves on it, attracts women

Cons: Only 3 wolves (could probably use a few more on the ‘guns’), cannot see wolves when sitting with arms crossed, wolves would have been better if they glowed in the dark.

Garner’s review took off like wildfire. Currently over 38,000 people have endorsed his review as “helpful”.

It also inspired hundreds of other reviews from a growing chorus of fans of the “Three Wolf Moon Short Sleeve Tee”. One wrote, “When I opened the package, the focused radiance of the shirt actually burned my shadow onto the wall.” Another explained, “When I put this shirt on each morning I swear it vibrates like those fancy tooth brushes.” One reviewer claimed, “As soon as I put this shirt on the Bank called to apologize about trying to foreclose on my home.” Yet another happy customer commented, “I have been wearing this shirt for about 15 weeks and I have not needed to wash it! You don’t put this shirt on your torso you put it on your soul.”

Though his comments were obviously sarcastic, the Internet phenomenon launched by Govern’s review actually catapulted sales of the shirt itself. The Mountain Three Wolf Moon Short Sleeve Tee quickly became Amazon’s top-selling item of apparel. Years later, it remains on sale at Amazon today.

Other product reviewers, however, have not fared as well as Mr. Garner. One consumer, who went by the online name “trevely”, left a review on Amazon in which he claimed that a wireless router manufacturer actually faked other reviews on the site. He also claimed that the router was identical to another product and that the manufacturer simply had rebranded it. His review drew threats of legal action from the manufacturer’s legal counsel. The consumer later deleted his review, but Amazon soon withdrew the manufacturer’s license to sell on the site.

The router incident apparently is not isolated. Other consumers have faced lawsuits after leaving negative reviews on websites about companies’ products and services. A woman was sued by a Virginia contractor when she left a review on Yelp accusing the contractor of stealing her jewelry. A book author sued a man who wrote negative reviews about his work on Amazon.

When these consumers posted their negative reviews online, it is probably safe to assume that none of them considered whether their conduct was protected by insurance. A standard feature of a commercial general liability (CGL) policy is protection against claims that seek recovery for injury arising out of “[o]ral or written material that slanders or libels a person or organization or disparages another’s goods, products, or services”. The problem for consumers who post negative online product or service reviews is that such coverage (called “personal and advertising injury” coverage) may apply only if the consumer was acting in the course and scope of his or her employment for the policy’s named insured, usually a business. Such coverage may apply for journalists or professional product reviewers but likely will not apply for those individuals punching out negative reviews in their free time.

The natural place for many consumers to look for insurance coverage against such claims and lawsuits (usually after they receive a summons) is the traditional homeowner’s policy. The problem is that most homeowner’s policies do not carry slander/libel/disparagement coverage as a standard feature as CGL policies do. Instead, many carriers provide such coverage in optional endorsements or in their excess or umbrella policies. Whether commercial or personal lines, however, most policies still will exclude any claim where the insured knowingly made a false statement or knowingly violated another’s rights. In other words, if your contractor did not steal your great grandmother’s priceless brooch that she carried with her from the old country, it is best not to accuse that contractor of same online on Angie’s List if insurance coverage is your first concern (as it rightly should be!).

Brian Govern, who started the Three Wolf Moon phenomenon with his Amazon review, later said, “I tell my parents and friends that it’s sad, but this is probably the most impact I’ll have on the world in my life”. Mr. Govern should take heart. Had his review not caused sales of the product to explode, he could have faced litigation from one angry wolf T-shirt artist. While a consumer or small business person cannot envision every type of claim that he or she may face, these negative online review claims provide yet another example of the value of a comprehensive insurance program which includes excess or umbrella coverage.