Insurance Implications of Defamation Lawsuits from It Ends With Us Stir Legal Debate

In an interview with Law360, Insurance Recovery & Advisory partner Jeff Kiburtz explained that although insurers typically argue that intentional, willful misconduct is not insurable, the policies likely to be involved in this case may have been designed to provide coverage for such conduct. 

The relevant insurance policies could be media liability, commercial general liability and possibly employment practices liability policies, all of which businesses frequently carry. For individuals, the relevant policies likely would be homeowners policies, which he noted were the focus of insurance disputes related to the defamation case Johnny Depp brought against Amber Heard.

As for homeowners policies, “sometimes those coverages will be limited to an ‘accident,’ which would be something that the insurance company would certainly say is significant limitation on the coverage,” Kiburtz said. “If you look at the lawsuits here, all of the conduct at issue is certainly framed in terms of intentional conduct.”

But Kiburtz went on to explain that “allegations of intentional conduct, standing alone, are not enough to defeat the duty to defend.” Referring to the sexual harassment allegations that were part of the lawsuit lead movie actress Blake Lively made against director and co-star Justin Baldoni, and the counter allegations by Baldoni against Lively and others, Kiburtz expressed doubt that an insurer would ultimately deny at least a duty to defend.

As litigation proceeds and the opportunity to settle arises, Kiburtz noted that he often sees policyholders pressure the insurer to settle due to potential triggers in the policies. He added that pushing an insurer to settle minimizes the risk of an unfavorable outcome in the underlying tort case, which could harm the insured’s chance of securing coverage.

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