Chubb Co. has said it will appeal a Texas court ruling requiring it to defend cell phone maker Samsung against several class-action injury suits by consumers, an attorney for the manufacturer said yesterday.

Finley Harckham, with Anderson Kill & Olick law firm, said by e-mail that Chubb has until Dec. 14 to file a notice of petition with the Texas Supreme Court and “They told us that is what they intend to do when they called to discuss scheduling of the submissions for that petition.”

A Chubb spokesperson said the company would not comment outside of court filings in the case.

Chubb's petition would seek a review of an Oct. 18 decision by the 5th Texas Court of Appeals in Dallas in favor of Samsung Electronics America in Samsung Electronics America, Inc., et al. v. Federal Insurance Company.

The court ruled that Federal, a member of the Chubb Insurance Group, must provide the Samsung with a defense in four of five class actions. The case involves Samsung's general liability policies, which provide defense coverage for claims that seek damages because of “bodily injury.”

Chubb had argued it had no duty to defend because the class actions do not assert claims for damages due to diagnosed injuries, but rather seek monetary and other relief based on claims that radio frequency radiation from cell phones causes “biological injury” to users.

The class actions contend the phones in question cause adverse cellular reaction and/or cellular dysfunction.

In the decision for the three judge appeals panel, Justice Elizabeth Lang-Miers wrote that “Federal has presented no persuasive argument why injury to human cells should not constitute 'bodily injury' under its CGL policies.

“And to adopt Federal's narrow construction that the Injury must be diagnosable, Identifiable, or a discernible physical injury to the body would require us to read language into the policy that is not there.”

The Court of Appeals ruling reverses a decision for Chubb by the Dallas County 193rd Judicial District Court. A fifth suit was brought under a consumer protection statute does not require the insurer's defense, the appeals court found.

In addition to Anderson Kill & Olick, Samsung was represented by the Potter Minton law firm.

Anderson Kill, in a statement noted that many telephone manufacturers and service providers are defendants in the class actions, and there have been several court decisions on defense coverage for other companies.

“The Texas Court of Appeals decision tips the weight of that authority in favor of coverage for these cases,” the firm said.

The law firm also said the decision provides a basis, upon which policyholders can argue for coverage for in future actions,

Personal injury attorneys, according to Anderson Kill, are “becoming more creative in its efforts to bring class actions based upon allegedly dangerous products without focusing upon the extent of injury and damages allegedly sustained by each individual member of a putative class.”

Mr. Harckham said, “By denying the attempt by Samsung's insurers to radically narrow the scope of their duty to defend policyholders in cases of alleged injury to consumers, the Texas Court of Appeals has acted to preserve the fundamental value of commercial general liability insurance.”

Special Reports /

Chubb Fights Over Cell Phone Liability

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