Insurance Coverage Issues for Products Manufactured by Foreign Companies

Insurance Coverage Issues for Products Manufactured by Foreign Companies James S. Carter August 2010

TABLE OF CONTENTS Page I. INTRODUCTION...1 II. COVERAGE PROVISIONS...1 A. Duty to Defend...1 B. Duty to Indemnify...2 C. Trigger of Coverage...2 III. EXCLUSIONS...2 A. Expected or Intended Exclusion...2 B. The Your Product Exclusion...3 C. Sistership Exclusion...4 D. Contractual Liability Exclusion...4 E. The Pollution Exclusion...4 IV. OTHER ISSUES...5 A. Notice...5 B. Number of Occurrences...5 C. Allocation of Loss...6 D. Coverage Territory Provision...6 V. CONCLUSION...6 ABOUT DICKSTEIN SHAPIRO...7 ABOUT THE INSURANCE COVERAGE PRACTICE...7 ABOUT THE AUTHOR...8 Page i DSMDB-2826181v2

I. INTRODUCTION Companies located around the world import products to the United States for distribution. While the United States may be a profitable market, the market comes with certain risks. One of these risks is the possibility of product liability lawsuits. According to data compiled by Bloomberg, the top five product-defect verdicts in terms of damages rose 52 percent in total value in 2009 from 2008. Although such cases might be extreme examples, they underscore the seriousness of product liability lawsuits. To manage the risk of such liabilities, companies doing business in the United States and internationally typically obtain liability insurance usually in the form of commercial general liability (CGL) insurance policies. CGL insurance policies provide coverage for liability arising from bodily injury or property damage. Unfortunately, a policyholder may find that its insurance company is reluctant to provide coverage, especially for large claims. An insurance company may deny coverage or reserve its rights to deny coverage. An insurance company may also file a preemptive lawsuit against the policyholder, asking a court to issue a ruling that the insurance company has no obligation to provide coverage to the policyholder. Navigating these obstacles to coverage can be complicated. This white paper discusses some of the insurance coverage issues that foreign manufacturers and suppliers may face in their efforts to secure insurance for product liability claims in the United States. II. COVERAGE PROVISIONS A. Duty to Defend One of the most important features of liability insurance is the duty to defend. Prior to resolving any claims, a manufacturer or distributor facing product liability lawsuits will be confronted with the need to retain attorneys to defend itself. Defense costs can quickly add up. In the case of frivolous lawsuits or those that otherwise are resolved favorably to the policyholder, such as a case that settles for nuisance value, the duty to defend may be even more important than the insurance company s duty to pay any judgment or settlement. CGL policies typically require an insurance company to pay these costs and defend the policyholder, even if a suit appears to lack merit. The duty to defend, sometimes referred to as litigation insurance, is very broad and typically applies if any claim is potentially covered. Moreover, amounts paid by the insurance company to defend the policyholder usually do not reduce the policy limits available to settle the claim or satisfy a judgment. Because of the many variations in policy language, this white paper does not address all of the issues. It also does not replace, and should not be relied on instead of, legal advice based on the specific policy language involved and a policyholder s particular situation. However, it does provide a starting point and is intended to be an aid in considering what sometimes is a maze of factual and legal issues regarding insurance. This white paper may be considered advertising in some states. Page 1

Despite the breadth of the duty to defend, a number of issues may arise. In the event that the insurance company reserves it right to deny coverage, the law of the relevant jurisdiction may limit the insurance company s right to control the defense (to avoid a conflict of interest). An insurance company may not acknowledge the conflict or may even deny the existence of the conflict. If the insurance company agrees to pay defense costs, it may still attempt to shift some defense costs back to the policyholder for payment, arguing that some of the claims are uncovered or that the defense costs are excessive. Even if all of the claims are covered, the insurance company may delay paying defense costs or take unreasonable deductions from the defense bills. Insurance companies sometimes seek reimbursement of defense costs if it is later determined that the claims are not covered. Courts have generally resolved such issues in favor of policyholders, but the result may vary by jurisdiction. B. Duty to Indemnify Although the duty to defend applies if a claim is potentially covered, an insurance company s duty to indemnify the policyholder for a settlement or judgment generally applies only if the actual facts demonstrate that the claim is covered. Of course, a policyholder need not prove its own liability if it settles a claim in reasonable anticipation of a covered loss. The typical CGL policy obligates an insurance company to pay those sums that the policyholder becomes legally obligated to pay as damages because of bodily injury or property damage. Bodily injury is physical injury to the body and may also include mental injury depending on the policy language and applicable law. Property damage is physical injury to tangible property or loss of use of property that is not physically injured. C. Trigger of Coverage The phrase trigger of coverage refers to the event that must take place during the policy period to require a policy to respond to a claim. In the case of latent or long-term harm, disputes can arise about the proper trigger of coverage. Under occurrence-based policies, some courts presume that such injury or damage happened continuously, from the initial exposure to the product until the discovery of the injury or damage. Some courts presume that the injury or damage only took place when there was exposure to the product; some presume that the damage happened only when the injury or damage was discovered. Many courts, however, hold that coverage is triggered whenever actual damage is proven to have happened. Beginning in the mid-1980s, many CGL insurance companies began selling claims-made policies. Under some claims-made policies, the policy must respond if a claim is made against the policyholder during the policy period, while some claims-made policies also require that the claim be reported to the insurance company during the policy period. III. EXCLUSIONS A. Expected or Intended Exclusion Insurance companies frequently raise numerous defenses to the duty to indemnify. One of the most frequently encountered defenses is that the policyholder allegedly expected or intended to Page 2

cause injury or damage. The standard applied by a court to determine whether the injury or damage was expected or intended is important. A subjective standard (i.e., whether the policyholder subjectively intended to cause the resulting injury or damage) favors the policyholder. Most courts adopt this standard. An objective standard (i.e., whether a similarly situated policyholder would have expected the damage) favors the insurance company. Whether the policyholder or the insurance company has the burden of proof on the expected or intended issue also is frequently litigated. The allegations that the insurance company makes in support of the expected or intended defense sometimes parallel the underlying plaintiffs claims and the allegations against the policyholder in the product liability lawsuits for which the policyholder is seeking coverage. This alignment between the insurance company s defenses and the plaintiffs claims and allegations may make it seem as if the policyholder has to defend itself on two fronts, but this alignment may help the policyholder illustrate the conflict of interest brought about by an insurance company s reservation of its rights to deny coverage. As noted above, in many jurisdictions, if the insurance company defends the policyholder under a reservation of rights to deny coverage later, the policyholder, not the insurance company, has the right to control the defense. B. The Your Product Exclusion Insurance companies frequently raise one or more of the so-called business risk exclusions as defenses to providing coverage for product liability claims. The your product exclusion precludes coverage for property damage to any product the policyholder manufactured, distributed, or sold. The rationale for this rule is that CGL coverage is only supposed to cover injury to people or third-party property. While simple to state in the abstract, there are frequently disputes about whether certain damages, such as the cost of repairing or replacing the product, arise from damage to third-party property or to the product. Also, some policies may carve out exceptions to this exclusion for instances when the policyholder continues to provide services after the sale relating to the product at issue. Resolving this issue will depend upon the specific facts of a case, the policy language, and the relevant jurisdiction. Also, the your product exclusion may not apply if the policyholder s product undergoes processing by another manufacturer such that it is converted into an entirely new product. In such circumstances, some courts have held that the your product exclusion does not apply, because the defective component loses its separate identity. Closely related to the your product exclusion is the impaired property exclusion. Essentially, this exclusion bars coverage for property damage in the form of loss of use that can be remedied simply by replacing or repairing the defective part. This exclusion, however, does not apply if there was physical damage to third-party property or if the loss of use results from the sudden and accidental physical injury to the policyholder s product. Page 3

C. Sistership Exclusion The product recall, or sistership, exclusion precludes insurance coverage for expenses incurred due to the recall of a company s product. 1 Depending on the wording of the exclusion, it may apply regardless of whether the manufacturer, the supplier, or a governmental entity requires the product recall. Insurance companies sometimes argue that the sistership exclusion applies in a blanket fashion to all product liabilities that have any relation to a product recall. A number of courts, however, have applied the sistership exclusion narrowly, holding that it does not exclude coverage for liabilities arising from the products that actually caused damage or injury, even if those products are subject to the recall. D. Contractual Liability Exclusion Product manufacturers and suppliers may face claims for indemnification from other companies in the chain of distribution or companies that incorporated products into their own products. CGL policies typically contain an exclusion that precludes coverage for bodily injury and property damage for which the policyholder is obligated to pay damages by reason of the assumption of liability in a contract or agreement. Importantly, the contractual liability exclusion contains an exception for insured contracts. An insured contract is generally an indemnity agreement or provision in which the policyholder assumes the tort liability of another party. Although an agreement might clearly fall within the definition of insured contract, issues may arise concerning whether the policyholder is entitled to coverage for the indemnified party s defense costs. Moreover, cross-indemnities among parties can create an issue about which party s insurance companies are required to pay any liabilities first. The insurance company may also argue that it is not obligated to provide coverage in light of any indemnification agreements with suppliers or other entities. In all events, it is important that the policyholder act to avoid affirmative acts that may impair any subrogation rights an insurance company might have; otherwise, the insurance company may argue that it is not obligated to provide coverage. E. The Pollution Exclusion The pollution exclusion precludes coverage for damages and cleanup costs relating to pollution. Although the pollution exclusion appears to contemplate an industrial pollution event, it is usually written broadly, and insurance companies frequently argue in the product liability context that it applies whenever a product releases a gas or other substance that causes damage or injury. Although many courts have applied the pollution exclusion to product liabilities, some courts have carved out exceptions to the pollution exclusion by, for example, not applying it outside the industrial pollution context. Some domestic CGL policies contain a total pollution exclusion that is very broad, while others contain qualified pollution exclusions containing 1 The term sistership exclusion... derives its name from the aircraft industry s practice of recalling planes for repairs when a plane of the same model (hence sistership ) had crashed because of a design defect. 9A Lee R. Russ & Thomas F. Segalla Couch on Insurance 3d 130:12 (2009). Page 4

exceptions for hostile fires or other limitations. Some versions of the pollution exclusion apply only to releases at or from the premises that the policyholder owns or where it is working, or to government cleanups, and so do not apply on their face to offsite product exposures. Even if a company s domestic CGL policy does not provide coverage due to the pollution exclusion, a company s international policies may contain different pollution exclusions that provide coverage for certain pollution liabilities. IV. OTHER ISSUES A. Notice CGL policies state that a policyholder is to provide the insurance company with two types of notice: notice of an occurrence or circumstances, defined to include an accident, that may result in a claim; and notice of a claim. This notice provision is intended to give an insurance company a chance to investigate a loss or claim while the evidence is still fresh. It also provides some assurance to the insurance company that it can take steps on behalf of the policyholder to minimize future damage and helps the insurance company to assess its obligations and determine whether the policy applies to the particular loss or claim. Notice provisions usually have been construed by courts to require that a policyholder provide notice within a reasonable time after it learns that an insured event has occurred. If a policyholder fails to do so, the insurance company may be excused from its obligations. Although most courts require an insurance company to demonstrate that it was prejudiced by late notice to avoid coverage, some courts do not require such a showing. Therefore, a policyholder should give notice as soon as possible to avoid allowing an insurance company to raise a preventable defense to coverage. B. Number of Occurrences CGL policies typically pay claims based on a per occurrence limit of coverage, subject to an aggregate limit for product claims. The number of occurrences is thus an issue that affects the amount of coverage that an insurance policy provides. If, for example, all of the injuries or damage in the mass tort context are considered a single occurrence, the policyholder may be limited to a single occurrence limit of coverage under a policy for what may be an enormous loss. The single occurrence may quickly exhaust the per occurrence dollar limit, thus shifting the loss to excess layers of insurance, if any. Moreover, many policies provide coverage only after the policyholder pays a per occurrence deductible, or self insured retention (SIR), which is similar to a deductible. A single occurrence may require a policyholder to pay a single deductible before insurance applies, while multiple occurrences may require the policyholder to pay multiple deductibles, thus forcing it to absorb a greater share of the loss. In some cases involving multiple occurrences and deductibles, a policyholder may have to absorb the entire loss without the benefit of any insurance. Because the number of occurrences issue affects many aspects of how a policy works and often affects how the loss is shared between the policyholder and an insurance company or among Page 5

multiple insurance companies, it is an issue on which insurance companies and policyholders take different positions, depending on how their interests are affected by a particular case. Some courts determine the number of occurrences based on the cause or causes of injury or damage. This test may result in one occurrence or multiple occurrences, depending on how the court defines the cause of the injury or damage. Other courts look to the effect or resulting injury or damage to determine the number of occurrences, which invariably results in multiple occurrences. New York courts apply an unfortunate event test, which focuses upon the proximate cause of the event for which the policyholder is being held liable, not a point further back in the causal chain. C. Allocation of Loss Another issue bearing on the amount of insurance for a claim involving more than one policy year is whether each triggered policy year is fully liable to pay all of a claim in the first instance (i.e., joint-and-several liability) or whether damages and expenses are to be allocated among successive triggered policies (and potentially to the policyholder for uninsured years). In situations in which damage or injury takes place over a long period of time, it is usually in the policyholder s interest to argue that each policy is fully liable, because then it can select the policy year that provides the most coverage. Insurance companies typically argue that damages or expenses must be spread over the duration of the damage or injury. Under this approach, the amount of liability an insurance company must cover during any given year is capped at its pro rata share. Some courts that follow this allocation approach require the policyholder to pay the pro rata share for years during which the policyholder was self insured, or for years covered by an insurance company that became insolvent. D. Coverage Territory Provision The coverage territory provision defines the geographical scope of coverage under a CGL policy. This provision can come into play when products are manufactured outside the United States or cause injury outside the United States. Issues may arise due to the interaction between the coverage territory provision and exclusions with particular applicability to a product. Despite the breadth of the coverage territory provision, such exclusions when read together with the coverage territory provision may limit the geographical scope of coverage. Sometimes exclusions contain geographical limitations that may limit their application. V. CONCLUSION Pursuing an insurance claim is often a complex and challenging process. Policyholders should consider obtaining the assistance of experienced insurance coverage counsel, because there are many issues that can significantly affect the existence or amount of recovery under an insurance policy. For example, resolution of the issue of whether a policyholder expected or intended the loss may depend not only on the law of a particular state that will be applied and the facts presented, but also on the way in which the facts are presented to the insurance company or, ultimately, to a court, if insurance litigation is necessary. An experienced attorney will be able to analyze how the resolution of those issues will impact insurance recovery and help the policyholder present its claim in a way that maximizes protection under the insurance policies in light of the coverage issues. Page 6

ABOUT DICKSTEIN SHAPIRO Dickstein Shapiro LLP, founded in 1953, is a multiservice law firm with attorneys nationwide. The firm s clients include more than 75 of the Fortune 500 companies, start-up ventures and entrepreneurs, multinational corporations, major motion picture studios, charitable organizations, and government officials. Dickstein Shapiro s core practice groups Antitrust & Dispute Resolution, Business & Securities Law, Corporate & Finance, Energy, Government Law & Strategy, Insurance Coverage, and Intellectual Property involve the firm in virtually every major form of counseling, litigation, and advocacy. For additional information, please visit dicksteinshapiro.com. ABOUT THE INSURANCE COVERAGE PRACTICE Dickstein Shapiro LLP is one of the United States leading law firms in representing policyholders around the world in disputes with their insurers. With more than 70 insurance coverage attorneys and ranked as one of the largest practices in the United States by Business Insurance Dickstein Shapiro has the deep experience in a broad range of issues that is necessary to provide clients with superior representation in all insurance coverage matters. The firm s insurance coverage attorneys provide advice and strategies that identify coverage opportunities, protect against unnecessary losses, and secure revenue from insurance policies through litigation and alternative means. This work is conducted with one primary focus maximizing each client s bottom line. Since the beginning of 2007, firm attorneys have recovered more than $4 billion on behalf of policyholders in matters involving a wide range of coverage types, claims, and industries. Page 7

ABOUT THE AUTHOR James S. Carter is an associate in the firm s Insurance Coverage Practice and co-leader of the Insurance Coverage Practice Products/Contaminants Initiative. Since joining the firm, he has litigated product liability insurance cases on behalf of Fortune 100 policyholders involving automobile part, insulation, and refractory bricks. Mr. Carter began his legal career as a law clerk to the Honorable Paul N. Brown, U.S. District Court for the Eastern District of Texas. He may be reached at carterj@dicksteinshapiro.com. Page 8