Business Pursuits Exclusion in California

California law defines a business pursuit "as a regular activity engaged in for the purpose of earning a profit." Smyth v. USAA Property and Casualty Insurance Co., 152 Cal. App. 3d 864, 869 (1984). CMLP has identified no California cases interpreting this test in the context of online publishing out of the home (or elsewhere). As a general matter, however, California cases have established that an activity need not be full-time or a primary (or even major) source of income in order to qualify as a business pursuit.

Insurance Exclusions for Business Pursuits

Most homeowners insurance policies exclude coverage for liability relating to "business pursuits." Although the exact formulation varies by state, the courts generally define a "business pursuit" as a continual or recurrent activity carried out for financial gain. In most states, courts give a broad interpretation to "business pursuits," drawing in almost any activity that results in financial gain.

Evaluating Homeowners and Renters Insurance Policies

Homeowners insurance policies (and renters insurance policies) typically provide some personal liability coverage that may cover claims brought against you arising from your online activities. As a general rule, however, the more you expose yourself to potential claims, the more you should consider coverage beyond your homeowners policy. This is especially true if your online activities even arguably constitute a business.

Media Liability Insurance

If your online activities are not covered under your current insurance policies, a growing number of companies are offering media liability insurance. While these policies are expensive -- perhaps prohibitively so for a newly formed business -- they can also be quite comprehensive. They typically cover costs to defend against suits brought for:

Finding Insurance

Even frivolous lawsuits dismissed at a relatively early stage of the litigation can be expensive to defend, and the cost skyrockets the longer the litigation continues, particularly if judgment is rendered against you. While most lawsuits never get to trial, if you lack the money to carry out a vigorous defense, the only option available to you may be to settle (perhaps even to take down the allegedly offending content or even your entire site) regardless of the merits of your defense.

Libel Insurance For Bloggers?

Eugene Volokh has reposted a very useful analysis of whether homeowner's insurance policies cover libel lawsuits, entitled Blogger -- You Might Have Already Had Libel Insurance. Volokh concludes -- in my opinion, correctly -- that homeowner's insurance policies, and possibly some renter's insurance policies, generally cover libel lawsuits. While these policies don't cover punitive damages (almost all policies exclude intentional or willful conduct), they do cover compensatory damages and attorney's fees.

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