Claims And Issues

COVERAGE FOR LIBEL AND SLANDER OF JAMES COMEY? ANDREW McCABE?

James Comey was terminated before his term was up as the Director of the FBI.

Andrew McCabe was terminated just before his birthday and with no other apparent reason for the timing than to try to deny him his pension.

The reasons for their terminations are not entirely clear.  Supposedly, Mr. Comey and Mr. McCabe were both terminated for reasons having to do with Hillary Clinton's EMails, which seems misleading in both cases.

Suppose that reasons for either person's termination were announced.  Suppose further that those reasons were untrue, and that they caused harm to the reputation of either or both.  Or suppose that at least the allegations of libel and slander were made in a lawsuit against alleged libelers and slanders here?

Would there be coverage for written libel or for oral slander of James Comey?  Andrew McCabe?

Personal Injury Coverage has long covered "offenses" which usually list libel and slander among the covered offenses.

In the modern case law, public policy does not prohibit coverage for such "offenses" ordinarily.  So, to claim coverage, under prevailing case law apparently all a coverage claimant would need to show is the allegation of a covered offense committed during the policy period in question.

Are there Coverages (or "covers") available under various kinds of insurance policies besides Personal Injury Coverage to people who commit any such libeling and slandering with respect to Mr. Comey or with respect to Mr. McCabe, or with respect to both?

Time will tell, perhaps.

Please Read The Disclaimer.  © 2018 Dennis J. Wall.  All Rights Reserved.

"INSURANCE CLAIMS AND ISSUES," THE BOOK: COMING IN 2016!

 

 Storm Clouds lined up over the Gulf of Mexico.  Photograph and text copyright 2015-2016 by Dennis J. Wall.

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Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

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HOMEOWNERS CAN SUE FRACKING COMPANIES FOR DAMAGES & INJURIES THEY CAUSE.

               The headline says it all:  “Oklahoma Justices Say Homeowners Can Sue Oil Companies Over Quakes,” reported by Richard A. Oppel, Jr., p. A14, col. 1 (New York Times Nat’l ed. Wed., July 1, 2015). 

               The decision was unanimous.  Richard A. Oppel, Jr., “Oklahoma Justices Say Homeowners Can Sue Oil Companies Over Quakes” p. A14, col. 1 (New York Times Nat’l ed. Wed., July 1, 2015). 

               How will fracking companies defend against damages suits when they do not have immunity?  Richard A. Oppel, Jr., “Oklahoma Justices Say Homeowners Can Sue Oil Companies Over Quakes” p. A14, col. 1 (New York Times Nat’l ed. Wed., July 1, 2015). 

               And how will fracking companies claim liability insurance coverage when they are sued for damages?

 

Please Read The Disclaimer.  ©2015 by Dennis J. Wall, author of “Lender Force-Placed Insurance Practices” (American Bar Association 2015).  All rights reserved.

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SERGEANT BOWE BERGDAHL TRUTH AND COVERAGE CONSEQUENCES.

           Reports broadcast and published about Sergeant Bowe Bergdahl and his family give rise to questions.  One question has not been asked yet so far as I know:  Where was this information kept secret for the past 5 years (assuming that it is based on reality), while this soldier was held prisoner and so many other reports were broadcast and printed about him?

         For coverage purposes, assume that the hysteria is false, that it is not based on facts.  Assume further that if they were sued for libel, that the broadcast and print organizations and reporters would argue that any plaintiff would have to prove "actual malice" which as I recall means something like reckless disregard for the truth.  That seems to fit.

          If a plaintiff successfully proves actual malice, is any Personal Injury Coverage for the libel or slander forfeit?  That is an interesting opening analysis for the insurance coverage questions here.

          Beyond coverage, if a person remains silent in the presence of libelous even treasonous innuendo, could a jury conclude that this is the normal state of affairs in which these statements were made?

          On a personal note, if I remain silent in the presence of libelous even treasonous slurs, what good am I?

© 2014 by Dennis J. Wall.  All rights reserved.  No claim to original U.S. Government works.

Please Read The Disclaimer.

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INSURANCE COVERAGE, IF LIABILITY FOR ENABLING WASHINGTON NAVY YARD MURDERS?

            Newspaper reports point out that the Washington, D.C. Navy Yard mass murderer had glaring reasons in his background to deny him access to places like the Navy Yard.  "Federal contractors who conducted a background check on Aaron Alexis when he enlisted in the military knew that he falsely reported that he had never been arrested or charged with any firearms offenses but he nevertheless was granted a security clearance, Navy officials disclosed Monday."  Craig Whitlock, "Aaron Alexis Didn't Report Gun Arrest During Background Check, Received Clearance" (Washington Post Online Monday, September 23, 2013).    [Emphasis added.]  The background checkers knew more than that apparently.  They also allegedly knew, for example, that the mass murderer they were checking had been arrested a couple of times, and that on at least one police report the police wrote down that the killer told them that he heard voices before he got violent -- and the police sent a copy of the police report to the Navy to check it out.

          The background checker on the Navy Yard killer is a private contractor for the Office of Personnel Management.  Joe Davidson, "Does Profit Motive Affect Security Clearance Investigations?" (Washington Post Online Monday, September 23, 2013).  Parenthetically, the checker on the mass murderer's background is the same checker on the background of Mr. Ed Snowden who reportedly leaked NSA secrets to certain members of the public press.  Michael S. Schmidt, "Shooter Said Electronic Brain Attacks Drove Him to Violence, F.B.I. Says" p. A17, col. 1 (New York Times Nat'l ed., Thursday, September 26, 2013).  The background checkers on Mr. Snowden reportedly contacted his mom and his fiancée.  Those two are the only persons the checker checked with, allegedly.

          There is a clear possibility of claims against the contractor.  The claims will or may come in a multitude of ways.  There seem to be grounds for perhaps alleging intentional torts, or alleging negligence in that they knew or should have known the backgrounds, or some other bases of liability.

          When these claims are alleged, much will depend of course on how they are alleged, if at all, in the eyes of a Court.  Will Directors and Officers Coverage be implicated as to the directors and officers of the background checker of the mass murderer?  If he had not received clearance, he would not have been in the Navy Yard, his shotgun would not have been there either, and since he and his shotgun would not have been there, it can be argued, his finger could not have pulled the trigger and killed 12 people before he killed himself.

          Would there be CGL ("Commercial General Liability") Coverage or its equivalent under these reported circumstances, either for an "occurrence" resulting in "property damage" or "bodily injury," or for an "offense" resulting in "personal injury"?

          Would there be E&O Coverage or its equivalent, if any, for the Errors and Omissions of the background-checker-corporation?

          The insurance coverage questions will not be answered by the Courts until after the liability claims come, of course.  The application of Exclusions may prevent coverage under insurance policies altogether in cases like these.

Please Read The Disclaimer.

Trademark, Copyright Infringement Exclusions Used to Inflict Pain, Terror.

   Hard on the heels of a new case applying Infringement Exclusions under Florida Insurance Law, posted here on December 17, 2010, comes this report from a newspaper columnist of how these Exclusions are known to Claimants and, sometimes at least,  are used for coercion:

   Going after websites using trademark law is the kind of tactic that deep-pocketed companies have been deploying more and more frequently to shut down negative commentary about them ....  Even if the plaintiffs in these cases don't prevail in court, they can stifle their opponents by bleeding them of cash.

Yvonne Abraham, "A Victory For Free Speech" (Boston Globe Online, Sunday, December 19, 2010).

   Insurance Policy Exclusions as weapons of destruction.  Realistically, a part of modern life.

Remember the Poor!

Exclusions under Liability Insurance Policies, including Exclusions of Claims "Arising Out Of" various conduct, are addressed in the context of Coverage and alleged Insurance Bad Faith Claims by  Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement).  See generally id., Chapter 5, "Insurer's Defenses Against Action by Insured":  first, in § 5:14 (Settlement); next, in  § 5:24 (Defense), and finally, in § 5:49 (Inadequacy of Defense).

Please Read The Disclaimer.  See also the analysis of other features of the Sanderson v. Zurich American Insurance Company decision applying Florida Insurance Law to Infringement Exclusions, on Insurance Bad Faith Law Blog posted on Friday, December 17, 2010.

"Personal," "Advertising Injury" Claims "Arising Out Of" Infringement, Excluded.

   In Sanderson v. Zurich American Insurance Co., Download Sanderson v. Zurich Am. Ins. Co. (M.D. Fla. Case No. 8.09.cv.1755, Order Filed December 6, 2010) PUBLIC ACCESS, also published as 2010 WL 5058519 (M.D. Fla. December 6, 2010)(authorized password required to access Westlaw), a Federal Court was faced with Claims alleged in an Underlying Complaint against the Insured for alleged Trademark Infringement and Copyright Infringement.

   The several Insurance Policies at issue in that case all provided Coverage for "Personal and Advertising Injury".  However, each Policy also contained an Exclusion of otherwise covered Personal and Advertising Injury "[a]rising out of" Copyright Infringement and Trademark Infringement, and each Policy also contained another Exclusion of Personal and Advertising Injury "[a]rising out of the unauthorized use of another's" domain name, in pertinent part.  Sanderson v. Zurich American Insurance Co., 2010 WL 5058519 at *2-*3.  

   The Federal Judge in that Case held that the Underlying Claims alleged against the Policyholder are excluded under Florida Law:  "Each claim is predicated upon the bad faith, deceptive, or misleading use of a registered trademark."  Id. at *7.  In addition, "each claim that consists of the same elements as a trademark infringement claim falls comfortably with [the Trademark Infringement Exclusion's] 'arising out of' language."  Id.

Exclusions under Liability Insurance Policies, including Exclusions of Claims "Arising Out Of" various conduct, are addressed in the context of Coverage and alleged Insurance Bad Faith Claims by  Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement).  See generally id., Chapter 5, "Insurer's Defenses Against Action by Insured":  first, in § 5:14 (Settlement); next, in  § 5:24 (Defense), and finally, in § 5:49 (Inadequacy of Defense).

Please Read The Disclaimer.  See also the analysis of other features of the above Sanderson v. Zurich American Insurance Company decision on Insurance Bad Faith Law Blog posted today.