When we hear news of developments in the world of torts that could expand areas of potential liability, we naturally think about whether insurance is likely to respond to that liability. One area that has us thinking these days is the evolving law regarding the “duty to warn.”
Recently, some courts have suggested that a manufacturer’s duty to warn may include a duty to warn users of the potential dangers not only of its own products, but of related products as well.
In a 2012 decision, the Supreme Court of Washington found that a manufacturer of protective gear had a duty to warn against asbestos exposure despite the facts that (1) the products at issue contained no asbestos, and (2) asbestos was only one of many materials against which the product could provide protection. Macias v. Saberhagen Holdings, Inc., 175 Wash. 2d 402, (2012). The dissent found the opinion to be contrary to precedent and public policy, and to be based on false distinctions.
One could simply assume this case was an outlier, but recently, a Connecticut plaintiff attempted to use Macias as support for a recovery against the manufacturer of Black and Decker products for asbestos-related injuries. The Black and Decker products contained no asbestos, and were made for general use. Abate v. AAF-McQuay, Inc., 2013 WL 812066 (Conn. Super. Ct. Jan. 29, 2013). The court distinguished Macias and (other cases) on the basis that the Black and Decker products were not designed for a use that would lead to asbestos exposure when used exactly as intended. While the plaintiff was unsuccessful in establishing liability here, the Connecticut court left open the possibility that there are circumstances in which a manufacturer would be required to warn about dangers that arise from something other than its own product.
Manufacturers then, whose products are likely to be used with dangerous substances or other dangerous products, should consider whether their insurance will respond to this sort of liability.
The stream of commerce is always changing, and the insurance of yesterday doesn’t always cover the risks of today. As companies introduce new products, enter into new contracts, and expand their businesses, they need to make sure that their insurance coverage remains adequate to meet their potential future liabilities. For that reason, it is always a good idea to evaluate whether your existing insurance coverage is sufficient to cover all potential liabilities, and an insurance audit by a qualified coverage attorney is an effective way to ensure that that you are sufficiently covered.