Insurance Coverage Issues in Emerging Risk Litigation Under GCL Policies: Insurer and Policyholder Approaches

More and more companies are being called to defend against liability for what are known as emerging risks. Emerging risks are new, uncertain, and evolving sources of liability that lack any historical precedent and whose potential harm or loss is unknown. These are risks that surfaced suddenly that no one predicted and that insurers did not factor into their underwriting or their policy language. Examples of emerging risks include IT outages, pandemics, climate change, talc, glyphosate, hair straighteners, PFAS, microplastics, semaglutide weight loss drugs, and more. 

Companies look to insurance to defend and potentially indemnify thousands, if not tens of thousands, of lawsuits alleging bodily injury or property damage from the new risks. These cases are often consolidated in MDL, with many defendants and insurers wanting to pursue different and conflicting strategies. Common coverage issues arising from these unprecedented risks include what policies are available to answer, what triggers coverage, number of occurrences, liability of successors, allocation of defense costs and liability, exclusions, and vertical and horizontal exhaustion. Policyholders and insurers often battle over control: who controls the investigation, selects defense counsel, and controls the defense, and the effect of a reservation of rights. 

Listen as this preeminent panel of insurance coverage practitioners offers guidance on the coverage issues that arise in emerging risk litigation.