Coverage for Unfair Competition Torts under General Liability Policies: Will the 'Intellectual Property' Tail Wag the Coverage Dog?

Abstract:     
The scope of "advertising injury" coverage in general liability policies has been shrinking in response to the proliferation of liabilities caused by the growth of the cyber-economy. In response to this shrinking coverage under general liability policies, insurers have been quick to develop new endorsements and specialized products to fill the gaps in coverage. The author argues that significant commercial risks relating to unfair competition claims have been eliminated from coverage under general liability policies, but that there also appears to be no corresponding development of specific endorsements or stand-alone products to deal with this gap in coverage. Specifically, claims against former employees who establish a competing enterprise are unlikely to be covered under the newest revisions of language in general liability policies. The author notes that these liabilities can be crippling to a new enterprise, and suggests that these new enterprises may be surprised to find that these commercial liabilites are not covered by their liability insurance package.

Keywords: Liability insurance, advertising injury, unfair competition, intellectual property

Accepted Paper Series