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Conspiracy Theory: Coverage for Claims Involving Allegations of Conspiracy
Plaintiffs in mass tort cases always have had a knack for expanding the universe of potential defendants, seeking the maximal number of deep pockets in each case. Historically, doctrines such as market-share liability and concert of action have been relied upon by plaintiffs to access all the participants in an industry, based on the acts of only some of the participants therein. Recently, as those theories of broadened liability have begun to meet with judicial resistance, plaintiffs have turned to an ancient common law doctrine through which to expand the number of available defendants in mass tort suits: the conspiracy theory. The focus of this article is on the question of whether industry participants accused of participating in such an alleged conspiracy can and should properly expect their liability insurers to defend such suits and indemnify any loss resulting therefrom. As shown below, there is no categorical bar to coverage for conspiracy liability in standard-form comprehensive general liability policies (“CGL”). Instead, coverage turns on the object of the alleged conspiracy and the injury suffered. Although many courts have shown great hostility to coverage for conspiracy-only claims, in many circumstances arising in the context of traditional mass tort suits insureds should be entitled to a defense (certainly) and indemnity (depending on the facts).
In the paradigmatic, mass tort conspiracy claim, the plaintiff alleges that all participants in an industry conspired to deprive the plaintiffs and other vital constituencies ' such as the government ' of critical information regarding the safety of their products. For example, in cases alleging injury from exposure to vinyl chloride monomer (“VCM”), plaintiffs claim that the industry as a whole conspired in the late 1960s and early 1970s to suppress information regarding the toxic properties of VCM. As a result, the plaintiffs contend that thousands of workers in a myriad of different fields (from workers at the factories producing products using VCM to beauty shop workers) were exposed to toxic levels of VCM over the next 20 years, resulting in alleged bodily injury ranging from disintegration of the bones in the fingers of workers to cancers. Based on this alleged conspiracy, plaintiffs have joined all of the participants in the industry (including industry trade associations in many instances) as defendants in suits seeking to recover from injuries allegedly caused by exposure to VCM, which may have resulted from interaction with the products of only one or a handful of the market participants.
Of course, the conspiracy-only defendants in these cases promptly turn to their insurers for a defense and indemnification of such claims. Seemingly more often than not, however, carriers deny coverage to insureds joined solely on the basis of an alleged conspiracy, even where the actual producer of the product at issue may be entitled to coverage based on separate specific allegations of negligence or recklessness, proclaiming that there is no coverage for conspiracy claims; usually, this denial of coverage is based on the misguided view that CGL policies do not cover injuries resulting from intentional acts. In fact, as discussed below, the inquiry is not so cut and dried and has less to do with the intentional nature of the acts of the insured and more to do with the insured's expectations or subjective intent vis ' vis the injuries sustained.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
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Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.