Op-Ed Submission to the Philadelphia Inquirer, September 2002

By:  G. Lawrence DeMarco

Late last month, several disturbing news stories about child abuse and neglect rocked the Philadelphia region.  A grandfather mistakenly left his granddaughter in a sweltering hot car for a full day leading to her death.  A mother permitted her husband to starve and perhaps poison her 18-year-old son to death.  Another mother permitted her 11-year-old son's father to physically force him, through savage beatings, to sell illegal drugs to addicts.

Two of these sad stories ended in death of the child.  Two of the stories involved intentional, deliberate criminal conduct and involved more than one parent. One common thread connects all three stories: a guardian failed to be careful in protecting a dependant child from harm.  Regretfully, similar instances of child abuse and neglect are appallingly common in society today.

Ironically, the existence of "carelessness" separate and apart from "criminal conduct" in these above examples can trigger substantial monetary benefits to a damaged child or a grieving family from a homeowner's insurance policy from a personal injury lawsuit.  Unfortunately, a victim of an intentional crime cannot recover insurance benefits from a lawsuit directly against the abuser because all homeowner's insurance liability policies come with exclusion for intentional and criminal acts.  Homeowner's insurance policies also have exclusion where the victim is a named insured (meaning, a child cannot sue a guardian where he or she lives with the parent). 

Regrettably, the lack of available insurance precludes a lawsuit because the defendant has no money to pay the judgment.  However, where severe harm to a child occurs in the custody of a guardian who cares for the child and the guardian knows of the abuse or carelessly causes it himself or herself, then the victim can recover insurance benefits up to the limits of the guardian's homeowner's insurance liability policy under a theory of "negligent infliction of emotional distress."

In the above three examples, assuming that all the guardians owned their homes, the 11-year-old and 18-year-old would be excluded from benefits because they would also be on the policy, but the parents of the granddaughter would be entitled to benefits from her grandfather's policy.  Children who are abused by non-resident family or friends are entitled to benefits because they are not precluded from coverage by any "resident" exclusions.

The legal theory of negligent infliction of emotional distress is little used and often overlooked by the legal community because of the uncertainty of and prejudice against psychological and mental injury. However, in most instances, the damaging effect of child abuse is so crippling that a capable mental health provider along with a family physician should be able to meet the criteria for a compensable emotional distress claim.

Society learned from OJ Simpson that where the criminal system cannot provide justice, the civil system could provide compensation.  In a few narrow circumstances, understanding insurance and awareness of the law can bring life long benefits to damaged children or grieving parents from homeowners' insurance benefits.

By G. Lawrence DeMarco, Esq.