What role insurance will play in the defamation trial between Johnny Depp and Amber Heard

The media and public were captivated in the summer of 2022 when Johnny Depp sued his ex-wife, Amber Heard, for defamation based on an article she wrote, which was published in The Washington Post, about her experience with sexual violence.

The case was decided in June of 2022. The jury ruled in Depps favor, and Heard was ordered to pay 8.3 million.

Surprisingly, to some, Heard then looked to her insurance company to pay the judgment. This is because Heards liability insurance covered defamation

This is actually not uncommon. Many homeowners insurance policies include liability coverage for what is sometimes called a personal injury. Personal injury coverage can cover an insured against a variety of different torts and offenses. Of the protections provided by personal injury coverage, libel, slander or defamation of character is often included.

However, just because an insurance policy covers more than bodily injury and property damage, and extends to defamation, that does not mean that coverage is always available when an insured is sued for defamation. Whether defamation is covered will depend on the specific nature of the defamation, the specific language of the policy, and how a court interprets that language under applicable law.

For example, some homeowners policies only cover defamation that is caused by an accident. But defamatory statements are typically made very intentionally.

A defamation plaintiff usually has to prove 1 a false statement purporting to be fact, 2 published or communicated to a third person, 3 with legally sufficient fault, and 4 resulting damage or harm to reputation.

Because defamation is, by definition, most likely intentional, courts in various states have had to closely scrutinize both the policy language and the circumstances surrounding the alleged defamatory statements to evaluate coverage.

In 2007, a California appellate court in Stellar v. State Farm General Ins. Co. looked at a policy that covered defamation arising from an accident. In the underlying defamation lawsuit, the plaintiff alleged that his brother had falsely informed Child Protective Services that the plaintiff had sexually molested his 8-year-old son, sent emails to people stating that the plaintiff was on drugs and had a gambling problem, and published posts on the internet referring to the plaintiff as a pedophile.

However, this does not mean that coverage cannot be available for defamation. California courts have also acknowledged that it is possible for defamation to be negligent. As the California appellate court put it in 2003 in Uhrich v. State Farm Fire Casualty Co., an insured could be liable for defamation for negligently publishing a false defamatory statement.