Perusing various sources of information reveals some interestingdevelopments that can raise questions about insurance coverage. Forexample, the New Jersey Appeals Court decided that sendinga text to someone you know is driving—andwho will read it at the same time— can lead to legal responsibilityfor the sender if the driver has an accident.

The judge in that case said, “when a texter knows or has specialreason to know that the intended recipient is driving and is likelyto read the text message while driving, the texter has a duty tousers of the public roads to refrain from sending the driver a textat that time.”

The court also noted that if the sender of the text doesthis, then the sender “has taken a foreseeable risk in sendingthe text, has knowingly engaged in distracting conduct, and it isnot unfair to hold the sender responsible for the distraction.”

If this judicial reasoning becomes the norm and the sender ofthe text is held legally responsible—at least partially—for an autoaccident, then is insurance coverage available under the autopolicy?

Texting and Auto Liability

Let's say that a man named Mr. Smith decides to text afriend or business associate when Smith knows the personis driving and will read the text immediately. How willSmith's personal auto policy or business auto policy respond if thefriend or associate has an accident because he wasdistracted as a result of reading the text?

Both the personal auto policy and the business auto policydeclare that the insurer will pay damages for bodily injury orproperty damage for which the insured becomes legally responsiblebecause of an auto accident. Currently, there are no exclusions ineither policy that would prevent coverage for the insured underthese circumstances; and at the very least, defense costs for theinsured would have to be paid if the insured is brought into alawsuit. Of course, some states have passed laws prohibitingdrivers from text messaging and this could possibly be used by aninsurer to deny coverage, but that is just one of the many legalissues that lawyers and courts will have to tackle when the claimsreach the legal system.

Alienation of Affection…and Attorneys?

Another item to consider pertains to alienation ofaffection lawsuits directed at attorneys. A post Irecently read tells of a husband who is suing an attorney ownedwebsite that assists married individuals in the quest of anaffair. The husband claimed that his wife left him for another manshe met on the website. No doubt the attorney has general liabilityand professional liability insurance, but would either policyactually apply to such a claim?

The general liability (CGL) policy applies to bodily injury (BI)or property damage (PD) claims, and an alienation of affectionclaim does not meet the definitions of either BI or PD as theyappear in the CGL form. Personal and advertising injury liabilityis also covered under the terms of the CGL form, but here again,the definition in the CGL form does not include alienation ofaffection.

As for coverage under the professional liability policy, thatdepends on the wording of the policy. Many professional liabilitypolicies are not standard and are written on a company-specificbasis. However the Insurance Services Office (ISO) does have alawyer's professional liability policy that can be used as thestandard coverage form. This policy pays those sums the insuredbecomes legally obligated to pay as damages resulting from awrongful act to which the insurance applies. A wrongful act isdefined as “any actual or alleged act, error, or omission committedor allegedly committed by an insured which arises out of therendering of or failure to render professional services and whichresulted in actual or alleged damages.”

Furthermore, professional services are defined as “servicesrendered by an insured as an attorney, arbitrator, mediator, titleagent, notary public, administrator, conservator, receiver,executor, guardian, or trustee or in any other fiduciary capacity,provided such services, for which the insured is licensed, arerendered in connection with the named insured's practice of law.”Is administering a website for those seeking an affair aprofessional service in line with the practice of law? This is acoverage issue, one the insured attorney and his insurer willhave to settle.

Deliveries by Drone

Finally, we have the amazing announcement that Amazonplans to make deliveries by drones. Presuming thegovernment allows this plan to take effect, what type of insurancecoverage issues will develop? There would seem to beplenty.

If the drone were to fall out of the sky because of mechanicalproblems and hit a house causing BI and PD, then does the insurerof the maker of the drone handle the claim or does Amazon's insurerdo that? If weather conditions force the drone down onto a house,is Amazon's insurer going to pay a resultant claim? Willhomeowners' insurance cover the loss? Suppose the drone deliversthe package to the wrong house or an empty house and the packagegets stolen? Where is the coverage? Moreover, if the drone haspicture-taking capabilities (for whatever reason) and flies over ahouse snapping photos of the people on the ground—is thisan invasion of privacy that can lead to alawsuit?

Now if the use of drones becomes commonplace, wouldinsurers start to use them for inspecting the homes and businessesof prospective clients, or even use them to inspect propertylosses? Would this ostensibly remove the human element out of theinsurer-policyholder relationship? The federal governmentand/or state governments may pass laws regulating the use of dronesthat can by-pass insurance coverage disputes, but this ismost likely an issue that will not be addressed for years tocome. Who knows?

These are only a few items that can present future issues andproblems for those in the insurance industry, but perhaps they areitems that some future-oriented persons should ponder.