CBS May Lack Cover For Janet Jackson Antic: UPDATED

By Caroline McDonald

NU Online News Service, Feb. 10, 2:33 p.m. EST?Broadcasters, facing possible legal fallout from Janet Jackson's breast flashing during the Super Bowl halftime show, probably aren't covered by their standard media liability policies, insurance industry experts said.[@@]

So far, the Federal Communications Commission, which has the authority to levy heavy fines, has said it will investigate and an angry viewer filed a prospective class action in Federal Court, which was withdrawn today.

The suit was filed by Terri Carlin, a Tennessee bank worker, who asked billions in damages on behalf of herself and millions of viewers injured by the "lewd behavior" of Ms. Jackson and fellow performer Justin Timberlake during the broadcast of their halftime act at the Super Bowl, according to the New York Post.

A notice of dismissal filed in federal court today said Ms. Carlin wants to see if "remedial measures" announced by federal regulators and the companies involved succeed in preventing similar activity, the Associated Press reported.

The suit naming Ms. Jackson, Mr. Timberlake, CBS, MTV and their parent Viacom, alleged that the broadcast companies and the singers breached an "implied" contract with viewers?not to subject them to sexually explicit acts during what should have been family entertainment, the Post reported.

Jim Borelli, vice president, claims, with Media/Professional Insurance in Kansas City, Mo., the largest provider of media liability coverage in the world, said a class action lawsuit as a result of Janet Jackson's actions would not fall within the scope of traditional media liability coverage.

"It would be a stretch because it wouldn't be a classic defamation, invasion of privacy or intellectual property tort," he said.

"Our policies traditionally don't cover any type of indecency or regulatory matters or criminal matters," he said, although "oddball coverage issues" would need to be examined individually by the insurer to determine if there is a "duty to defend" under the policy.

Mr. Borelli said of the proposed class action that "it sounds like they have a long way to go to prevail on the case. It doesn't sound like a strong case." He added, "It's not a surprise because high profile incidents like this can generate these nontraditional, oddball-type litigations."

Mr. Borelli said that another immediate issue is fines or sanctions levied by the FCC.

"Our media liability policies don't respond to regulatory actions like that," he said.

The company's standard coverages, he noted, are defamation; outrageous conduct and invasion of privacy; and intellectual property perils such as copyright infringement, trademark infringement and plagiarism.

Whether the entertainers have their own coverage for the event, he said, would depend on the contract. In this case, he noted, Janet Jackson and Justin Timberlake most likely were independent contractors. They could be added to a standard policy if it is agreed to in advance of a claim.

Those covered under a traditional media liability policy would be employees of the company acting within the scope of their employment.

"Our policy has an exclusion of judicially determined, dishonest, fraudulent or criminal acts," Mr. Borelli said. "I don't know if Janet did anything that was dishonest in this case, but it would be something that could be looked at."

Lance Ewing, president of the Risk and Insurance Management Society and executive director for Park Place Entertainment in Las Vegas, Nev., said that getting coverage for violation of FCC rules "would almost be like getting insurance for an OSHA violation, which you hope you never have to do. I don't know anybody out there writing OSHA."

He said that coverage of potential injury to a third party who watched the halftime show would "depend on how loosely or tightly construed the insurance policy would be on the [general liability] side."

A similar situation, he said, occurred in Las Vegas where Roy Horn of Siegfried and Roy was mauled by a white Siberian tiger at the MGM Mirage Hotel-Casino while the audience looked on. "If someone was affected, would there be third-party liability?" he asked.

Mr. Ewing noted, "We can insure almost anything, including space alien abduction. As long as we can get actuarial table arms around it, there is always a way to write a premium."

Gene Williams, vice president of Chubb and Son and entertainment practice leader for Chubb Commercial Insurance, in Warren, N.J., said, "Something somebody did on purpose is not negligent. That becomes a tort in legal terms. Intentional acts are generally not covered in liability insurance?it has to be an accident."

Mr. Williams said anyone can bring a lawsuit over anything, "but whether you will get any money is another question. There has to be negligence, there have to be damages. Just because someone is upset doesn't mean they have damages. And it doesn't necessarily mean that anyone was negligent."

He added that there is a difference between the financial loss that someone might suffer and insurance, "and not every financial loss is covered by insurance." And there certainly could be financial losses here, he said. "MTV may never get to produce another Super Bowl again, Janet Jackson was kicked off the Grammy Awards telecast, the list could go on and on. But that has nothing to do with negligence or legal liability."

He noted that another coverage, "death and disgrace," could come into play if a company has a contract with Janet Jackson for being a spokesperson for their product.

"If they now felt that because of what happened, continuing with the promotion involving Janet Jackson would not be good for the sales of their product, the D&D would reimburse them for the cost they have incurred on the advertising campaign to date, which could be a lot of money," he explained.

Mr. Williams added that, "I would suspect she is involved with at least one corporate sponsor of some sort, but I have no idea who it is."

But having said that, he noted, "My guess would be that there is no death and disgrace insurance; it's not something that is commonly purchased in North America. We've actually written more of it in the U.K. than in the U.S."

Ms. Jackson's publicist, PMK/HBH in Beverly Hills, said they do not handle her insurance coverage and could not answer questions about it. Ms. Jackson is represented by an attorney who handles such issues, they said, but would not disclose the lawyer's name.

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CBS May Lack Cover For Janet Jackson Antic: UPDATED

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