Will CBS Go Bare On Jackson Exposure?

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.

While Viacom did not respond to requests for information about their insurance coverage, a number of industry experts expressed doubts that any standard policy would apply under the circumstances, although they admit the industry is unpredictable when it comes to negotiating individual "oddball" coverages.

Jim Borelli, vice president of claims with Media/Professional Insurance in Kansas City, Mo., said a class-action lawsuit as a result of Janet Jacksons actions would not fall within the scope of traditional media liability coverage. "It would be a stretch because it wouldnt be a classic defamation, invasion of privacy or intellectual property tort," he said.

"Our policies traditionally dont cover any type of indecency or regulatory matters or criminal matters," he added, although he said "oddball coverage issues" would need to be examined individually by the insurer to determine if there is a "duty to defend" under the policy.

Interviewed before the class actions withdrawal was announced, Mr. Borelli said of the proposed suit that "it sounds like they have a long way to go to prevail on the case. It doesnt sound like a strong case." He added, "Its 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 that might be levied by the FCC. "Our media liability policies dont respond to regulatory actions like that," he noted.

The companys standard coverages, he said, are defamation, outrageous conduct, related emotional distress, invasion of privacy, and intellectual property perils such as copyright infringement, trademark infringement and plagiarism.

Whether the entertainers are covered for the event under a media companys policy, he said, would depend in part on the contract. In this case, Janet Jackson and Justin Timberlake most likely were independent contractors.

They could be added to a standard policy even after a claim is made if it is agreed upon by the media company and the insurer. They also could have their own media liability policy as well, he noted.

Among those covered under a traditional media liability policy would be employees of the company acting within the scope of their employment, he said.

"Our policy has an exclusion of judicially determined, dishonest, fraudulent or criminal acts," Mr. Borelli said. "I dont 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 dont know anybody out there writing OSHA [coverage]."

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.

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

"Something somebody did on purpose is not negligent," said Gene Williams, vice president of Chubb and Son and entertainment practice leader for Chubb Commercial Insurance in Warren, N.J. "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 doesnt mean they have damages. And it doesnt necessarily mean that anyone was negligent."

He added that there is a difference between the financial loss that someone might suffer and insurable loss. "Not every financial loss is covered by insurance," he said, conceding there certainly could be financial losses here. "MTV may never get to produce another Super Bowl again, Janet Jackson was kicked off the Grammy Awards telecastthe 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.

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

Ms. Jacksons 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 lawyers name.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, February 13, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.