Chief Justice Wallace Jefferson

AUSTIN – Insurers who covered cellular telephone companies for bodily injuries must pay for national radiation litigation, the Texas Supreme Court decided Aug. 29.

Justices said the class action lawyers created doubt about whether any injuries were claimed.

"We resolve all doubts regarding the duty to defend in favor of the duty," Chief Justice Wallace Jefferson wrote for seven of nine justices.

Now Zurich American, Federal Insurance, National Union Fire and Trinity Universal must pay for federal multi-jurisdiction suits against Nokia, Samsung and Cellular One.

The insurers will pay for millions of headsets, if plaintiffs obtain the relief they seek.

Dissenting Justice Nathan Hecht wrote, "Want of a cellphone headset is neither a bodily nor a biological injury."

He wrote, "There are no claims for personal injury damages. The court cites no example, and there is none."

He wrote that the majority rewarded cute and clever pleading.
The phone makers sued the insurers in Texas, seeking defense and indemnification against class actions in other states.

U.S. multi-jurisdiction judges have consolidated the cases in Maryland federal court for pretrial discovery.

The Texas Supreme Court issued separate opinions for the phone makers, laying out their arguments in Nokia's case and treating the other two as dittoes.

Jefferson listed five suits against Nokia, each alleging that radio frequency radiation causes adverse cellular reaction or cellular dysfunction.

"None of the complaints use the term 'bodily injury'; all are phrased in terms of 'biological injury' or 'biological effects,'" he wrote.

Other courts have held that injury at the cellular level was sufficient to allege a bodily injury, he wrote.

"Like those courts and the court below, we conclude that the biological injuries alleged by the plaintiffs potentially state a claim for bodily injuries under the policies, much like the subclinical injuries alleged by plaintiffs who have been exposed to asbestos," he wrote.

Because the classes would include future purchasers, Nokia's insurers tried to argue that future purchasers couldn't have suffered damages due to injury.

"This misconstrues the nature of the duty, however," Jefferson wrote.

"The duty to defend is not negated by the inclusion of claims that are not covered; rather, it is triggered by the inclusion of claims that might be covered," he wrote.

"Over-inclusive allegations do not negate the duty to defend; the duty applies if there is a possibility that any of the claims might be covered," he wrote.

The majority added a twist at the end. They ruled that in Naquin v. Nokia, a suit from Louisiana, the insurer's duty ended when the plaintiff specifically disclaimed injuries.

The original complaint alleged "extreme adverse long term health care consequences" including anticipated anxiety, fear of brain damage and cancer.

After transfer to Maryland federal court, Naquin amended the complaint to delete claims for pain and suffering.

Still, Naquin retained a product liability claim and alleged nerve damage, cellular damage, cellular dysfunction and other injuries.

A second amended complaint dropped product liability, relied on consumer laws, and clarified that its remaining allegations summarized facts but did not set forth claims.

Jefferson wrote that Nokia's policies excluded coverage for consumer claims because the only damages sought were economic ones relating to defective products.

"Thus, the duty to defend Naquin ended when the plaintiffs filed the second amended complaint," he wrote.

Hecht protested that the only difference between Naquin and the others was that Naquin's counsel affirmatively disclaimed injury claims that would wreck his case.

"None of the cases has any value unless a class is certified aggregating millions of claims for headsets," Hecht wrote.

"Questions common to class members cannot predominate if class members claim individualized bodily injuries," he wrote.

"If the cases are to have any value, the pleadings must never breathe the words 'bodily injury,'" he wrote. "They never do."

He wrote, "We should not consider that class counsel's pleadings potentially state a claim that would destroy the case altogether."

He wrote that courts have gone both ways. "We cannot help but be in step with some and out of step with others," he wrote.

Justice Scott Brister joined the dissent.

Justices Harriet O'Neill, Dale Wainwright, David Medina, Paul Green, Phil Johnson and Don Willett agreed with Jefferson.

Twenty-two lawyers represented the insurers and 13 represented the phone makers.

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