Northern Insurance: Coverage for Preventative Measures in Cell Phone Case

Abstract

When the plaintiffs in a products liability or mass tort case seek monetary damages for their injuries, the claim is within the scope of the defendant’s comprehensive general liability coverage for “bodily injury” and “property damage.” If the plaintiffs instead seek injunctive relief requiring the defendant to implement, for instance, medical monitoring, consumer education programs, the removal of a product from the market, a recall or modification of products already sold, or remediation of contaminated real or personal property, the defendant’s insurer may deny coverage, reasoning that the relief requested does not constitute a claim for bodily injury or property damage, but rather is purely preventative in nature or relates to harms that have not yet occurred. In Northern Insurance Co. of New York v. Baltimore Business Communications, Inc., No. 02-1358, 2003 WL 21404703 (4th Cir. June 19, 2003), the United States Court of Appeals for the Fourth Circuit rejected such arguments and ordered an insurer to pay defense costs for a case in which the plaintiffs alleged they were exposed to dangerous levels of radiation emitted by cell phones. The Fourth Circuit rejected the insurance company’s assertion that the requested relief—the cost of purchasing headsets for each class members—sought merely to prevent future injuries, placing the claim outside the scope of bodily injury coverage. The court’s decision was based on the finding that the plaintiffs’ exposure to radiation caused bodily injury at the “cellular level.” Northern Insurance’s determinations with respect to bodily injury are consistent with recent cases which broadly define the scope of liability coverage for bodily injury and property damage, such as American Alliance Insurance Co. v. Jencraft Corp., 21 F. Supp. 2d 485 (D.N.J. 1998). Northern Insurance and these earlier cases provide support to those seeking coverage