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By Selena Linde, Partner, Perkins Coie LLP
Numerous lawsuits have been filed related to Air France Flight 447, which crashed in June 2009 en route from Rio de Janeiro to Paris, leaving 228 people dead. A number of wrongful death lawsuits have been filed that allege product liability claims against the aircraft manufacturer and several aircraft component manufacturers and suppliers. History has demonstrated all too well that these companies face significant exposures as a result of alleged product liabilities-even if those allegations are debunked in a court of law. These exposures arise from the claims brought by the underlying claimants and the potentially significant litigation costs in defending against those claims, as well as potential claims by other defendants for contribution and indemnification.
While it is a natural reaction for defendants such as those named in the lawsuits relating to Air France Flight 447 to focus on defending against the underlying allegations to reduce their potential loss, liability insurance can be a significant tool for limiting those liabilities, if coverage is pursued aggressively and intelligently. A company's liability insurance policies should provide coverage for the typical product liability claim. Insurance companies often balk at paying such claims, however, at least in part because of the large potential cost of the claims. Nonetheless, a company with the fortitude to pursue its insurance coverage vigorously often can reap substantial rewards for its efforts. It is imperative that a company act promptly to pursue insurance coverage for its product liabilities. A successful pursuit of coverage will require a sound, coordinated effort, and will take time. This paper presents an introduction to some of the insurance coverage-related issues that companies might encounter in their efforts to secure coverage in relation to Flight 447.
This paper addresses:
1. Coverage under Commercial General Liability policies for claims of "Bodily Injury" and "Property Damage," including an insurer's duty to indemnify and duty to defend; 2. Likely insurer defenses, including "Expected" or "Intended" harm; contractual liability exclusion; and "Business Risk" exclusions; and 3. Additional factors that may affect an insured's potential recovery, including the number of occurrences; coverage territory issues; and notice.
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Selena Linde is a partner at Perkins Coie LLP in Washington , D.C. Benchmark: The Definitive Guide to America’s Leading Litigation Firms & Attorneys recognized Ms. Linde as a “Future Star” in its 2009 and 2010 editions and noted that during her years of practice she has “established a significant mark on the insurance industry.” Ms. Linde has an active trial practice representing policyholders in complex insurance coverage matters in federal and state courts throughout the country and an equally active arbitration and mediation practice. She has represented corporate policyholders in a wide variety of insurance coverage cases that have involved asbestos, environmental liability, fraud, employee dishonesty, credit enhancement, libel and slander, directors and officers liability, technology security, business interruption, first-party property, trademark infringement, products liability, warranty and representation claims, and subprime auto loan risk default insurance. Furthermore, Ms. Linde advises clients on coverage audits, policy renewals, and policy language. Throughout her career, she has been involved in all aspects of litigation and successfully has recovered hundreds of millions of dollars for her clients. In addition to her insurance coverage work, Ms. Linde has handled substantial commercial litigation matters and has represented clients in fraud actions and contract disputes. She also has conducted internal investigations for clients. Ms. Linde is a regular commentator for Mealey’s Litigation Report: Insurance Bad Faith.