It’s Better to Insult Corn than a Dentist—Eighth Circuit Holds that Libel Suit Not Covered by Personal Injury Insurance Policy

Is your bracket busted yet? Unless you predicted No. 14 UAB knocking out No. 3 Iowa State 60-59 in the first round of the NCAA’s Men’s Division I Basketball Championship, it probably is. That upset has added to what was already a difficult year for corn. (Iowa State is located in, well, Iowa, where 90% of the land is dedicated to agriculture — i.e. the “Corn State”). Earlier this year, college basketball fans at the University of Wisconsin attempted to intimidate their Big Ten rival the Nebraska Cornhuskers by donning T-shirts that decried corn as the “WORST VEGETABLE EVER”. The Cornhuskers did not take this insult lying down. The University of Nebraska took to the Twitters with the stunning rebuke, “Psssst… Corn is a grain.” That tweet set the Internet afire, with people checking in with various takes on whether corn, in fact, was a vegetable, a grain, or maybe even a fruit. (Final answer: it depends. “If it comes from the reproductive part of the plant, it’s a fruit. If it comes from the vegetative part of the plant, it’s a vegetable. Botanically speaking, corn is a caryopsis, or dry fruit — popularly known as a grain.”) Ultimately, Wisconsin had the last laugh. It defeated Nebraska in both contests this year (70-55 and 65-55) and is the No. 1 seed in the West region of the Tournament. Nebraska did not even make the NIT.

More importantly, the Wisconsin Badgers’ fans benefited from the fact that while it may not be clear whether corn is a vegetable, grain or fruit, it is almost certainly not a human being. Some commentators argued that the Wisconsinites’ insult—that corn is the “WORST VEGETABLE EVER”—rose to the level of “libel”. Although case law on the issue is sparse, it does not appear that either a vegetable, grain or fruit may maintain a cause of action for libel. The Wisconsin anti-corn T-shirt brigade should be safe.

One of their fellow Badgers, an orthodontist from Hudson, Wisconsin named Bryan Brettin, was not so lucky. He was accused by dentist Douglas Wolff of libeling Dr. Wolff’s dentistry practice. No, Dr. Brettin did not sit in Dr. Wolff’s waiting room wearing a T-shirt that referred to Dr. Wolff as the “WORST DENTIST EVER”. (Who would put a wolf on a T-shirt, anyway?) Instead, Dr. Brettin allegedly took a more clandestine approach. Using his neighbor’s wireless network, Dr. Brettin allegedly posed as a patient of Dr. Wolff and posted negative reviews of him on the Internet. In one online review posted under the screen name “Hockey Mom”, Dr. Brettin allegedly claimed that the reviewer’s son required oral surgery after his braces were removed at Dr. Wolff’s dental practice. (What’s the difference between a Hockey Mom and a pit bull? Besides lipstick, apparently neighbors with strong, password-free wifi.) He warned of Dr. Wolff: “[b]uyer beware”.

In Sletten & Brettin Orthodontics, LLC v. Continental Casualty Company, the Eighth Circuit considered whether the libel suit that Dr. Wolff eventually filed against Dr. Brettin was covered under a “general liability and personal injury liability insurance” policy issued by Continental Casualty Company. The policy provided coverage for claims “as a result of injury or damage”. The policy defined “injury” to include “oral or written publication of material that…slanders or libels an entity or disparages an entity’s goods, products or services”. Such coverage is commonly seen in the “personal and advertising injury” coverage of commercial general liability (CGL) policies, often referred to as “Coverage B” in those policies. The policy in Sletten, however, also required that the “injury” (i.e. the slander or libel) be caused by an “occurrence”, which the policy defined as an accident. In most CGL policies, only the policies’ grants of coverage in “Coverage A” for damages because of “bodily injury” or “property damage” must be caused by an “occurrence”, not damage as a result of a personal injury like slander or libel. The policy also made the slander or libel coverage subject to an exclusion for “injury or damage you expected or intended”, which again often is seen only in the “bodily injury” or “property damage” coverage of Coverage A.

The insured Dr. Brettin argued that these provisions were ambiguous and made coverage illusory. He argued in essence that the policy seems to provide coverage for intentional torts like slander and libel but then contradicts itself by making that coverage subject to the “accident” requirement and the “expected or intended” injury exclusion. The Eighth Circuit disagreed. Applying Minnesota law (it is not all together clear what Golden Gophers’ fans think of corn), the appellate court in Sletten held that these provisions “makes sense because defamation is often committed without intending injury”. The circuit court explained that a “defamer may have attempted to conceal the victim’s name, may have thought the victim’s reputation was already damaged beyond repair, or may have thought the defamatory statement was true and thus would not cause any legal injury.” The court therefore concluded that the policy was unambiguous and enforceable because it provides coverage for some, just not all, libel and slander claims.

Unfortunately for Dr. Brettin, the Eighth Circuit concluded in Sletten that the suit filed against him by Dr. Wolff was not one of those covered claims. The circuit court held that each of claims brought by Dr. Wolff alleged that Dr. Brettin acted with the intent to harm. Accordingly, the court held that the underlying suit did not meet the “accident” requirement or otherwise was removed from coverage by the “expected or intended” injury exclusion.

Without a single local team in the Tournament for the first time in recent memory (where have you gone, Tigers, Fighting Illini, Billikens, Salukis and Bears?), it is hard not to root for the University of Wisconsin as it marches into the Sweet Sixteen and possibly the Final Four. As a newly minted Badgers fan, however, one would be wise to heed the lessons of the Eighth Circuit’s decision in Sletten. Insurance coverage for libel or slander claims is often a tricky proposition under typical Coverage B policy language. When that coverage is subject to the additional requirements of Coverage A and the court enforces those requirements, coverage may be quite limited indeed. As the Tournament progresses, Badger Nation would be wise to continue to focus the derision of their opponents upon non-human objects. In short, don’t insult Ashley Judd. It is the Wildcat that is the WORST MAMMAL EVER.

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Kerri Forsythe

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