Twinkie defense comes of age in the insurance industry, The

Twinkie defense comes of age in the insurance industry, The

Malecki, Donald S

One of the more disturbing trends in society today, often reflected in the judicial arena of jury verdicts, involves the position taken by perpetrators of criminal and civil wrongs. The recent phenomena began to take on national prominence about 10 years ago in San Francisco, California.

A lone gunman burst into city hall, shooting and killing the Mayor of San Francisco, Mr. Moscone, and a gay city councilman by the name of Harvey Milk. During the trial, the defense took the position that the killer was not at fault. The real culprit was alleged to be his diet, which consisted of too many Twinkies, resulting in hyperactivity and the shooting. Thus, the famous phrases of “the butler did it” and “the devil made me do it” were forever overshadowed by the “Twinkie defense.”

What will the dream teams come op with next?

Since that time 10 years ago, numerous “creative” lawyers have advanced similar theories based on the premise that individuals are not responsible for their own conduct. The new attitude seems to be that there is always someone else responsible for the wrongful conduct. If it is not abusive parents, it is a cheating husband or wife, a history of molestation, etc. And if all else fails, we blame medical conditions, changing climate patterns, or even Twinkies.

This newfound consciousness, or lack thereof, depending on your perspective, is now an issue involving insurance. If Twinkies, parents, spouses, or a miserable job of raising children to adulthood is to be blamed for the conduct of a culpable party, particularly an adult culpable party, then why stop there?

The insurance of the person being blamed should be triggered.

If it were alleged by a murderer who committed a crime as an adult that he or she was abused or improperly raised by his or her parents while he or she was growing up (or alleged by the survivors of the decedent), then those parents could be sued by the victim or the victim’s survivors, or maybe even the party that committed the crime. If this were to happen, the question is whether any personal liability insurance of the accused could be relied on for protection, even though the culpable party was an adult.

Insurers take another hit?

At the moment, this may appear to be an unrealistic or even absurd question. But it is a legitimate one nonetheless. In fact, this question has been raised and currently confronts at least one insurer.

If we, as a society, allow this type of allegation to proceed through the legal system, we must then also be prepared to absorb the costs and other repercussions. In addition to the cost society as a whole bears through increased criminal and civil wrongs, because the culpable party is forgiven and some third party blamed, there are financial costs with which to deal.

Nonetheless, clearly from an insurance standpoint, the defense obligation in some liability policies may be triggered. What triggers the insurer’s duty to defend are allegations that are clearly covered or potentially within the coverage of a personal liability policy, such as negligence and mental injury or emotional distress. The fact that a personal liability policy’s coverage is based on bodily injury does not necessarily mean claims of emotional distress are not covered in the absence of physical manifestation, even though a majority of courts have so ruled. It is still an unresolved issue in most jurisdictions.

Another key point about the defense obligation is that the liability policy is several in nature. Thus, the fact that the policy does not apply to the offender does not meal coverage is nullified to all other insureds (such as the parents against whom claim is made or suit is brought.

Where does it all end?

If we look to the inner cities and the huge welfare state, who do wt blame for the criminal conduct of those adults and children who grew up dependent on the welfare machinery? Clearly, under the twisted logic of those who advocate blaming third parties for the conduct of the culpable party, we must hold federal, state and local government officials responsible, as we would parents who are accused of not properly raising a child or of abusing or molesting children who later perpetrate criminal or civil wrongs.

If parents are to be held responsible for the crimes of their adult children, based on the way in which they were raised, or the failure of the parents to provide a proper upbringing, is it fair to give governmental entities immunity for their dismal performance?

The problem is where does all of this end? How much will insurance premiums go up if this trend takes hold on a massive scale? With the exception of environmental exposures, this issue stands to pose as great a threat to the financial stability of the insurance industry as any issue to date.

This is particularly so where the alleged acts or improper conduct of parents took place long before a policy was purchased, and the coverage is triggered, not at the time of the alleged improper conduct, but at the time of the untimely injury or death.

This is the beginning of a disturbing trend, and one which, if allowed to proceed unchecked, will wreak havoc on society in general. It also will have a disastrous impact on the concepts underlying insurance coverage and the basis upon which it is issued and the premiums computed.

It must be remembered, however, that in our society the accused are to be viewed as innocent until proven otherwise. Having an insurance policy to fall back on at least for purposes of picking up the tab for the legal costs until the motion is dismissed would truly serve as “peace of mind” for those confronted with these kinds of “trumped up” legal actions.

What needs to be done is not to add yet another exclusion to the policy to avoid having to provide defense, but rather a legal holding and a societal view that for an insurer to be required to pay damages for these kinds of absurd legal actions is against public policy.

If that last statement is wishful thinking, ponder this one. It may be ironic but the American public who have comprised the generous juries of the past may have a different perspective with these kinds of legal actions, particularly those who are parents and have experienced difficult periods in bringing up their children. “Let he who is without sin cast the first stone.”

Donald S. Malecki, CPC is a regular contributor to Rough Notes His “Risk Management” column will appear again next month. An independent insurance and risk management consultant, he is the author and co-author of nine books on insurance and risk management. He serves on the Society of Risk Management Consultants’ board of directors and chairs the legislative committee.

Copyright Rough Notes Co., Inc. Nov 1995

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