Obscenity Allegations and the CGL Form

Q

Is it possible that a claim arising from obscenity could be covered by a commercial general liability policy? Assume the following scenario. A book containing considerable obscenity is distributed to book stores, including our insured book store. Although there are ample, large, and obvious warnings on the cover of the book that it is unsuitable for and should not be sold to minors, an underage youth manages to purchase a copy of the book from our insured's store. The youth subsequently commits a brutal act, injuring several people. The youth maintains as his defense that he purchased the book from the insured's book store, read it, and was driven as a direct result of the material contained in the book to commit the attack. The victims of the attack sue our insured (among others) and our insured looks to his CGL form for coverage. Will the CGL form respond to the claims?

Also, if the youth or his parents sue the insured for disseminating obscene material, will the CGL cover that?

California Subscriber

A

The CGL form covers all sums that the insured becomes legally obligated to pay as damages because of bodily injury to which the insurance applies. The agreement to defend the insured is for a suit against the insured seeking those damages. There is no exclusion under the CGL form that would prevent coverage or defense for the insured against the claims of those injured in the attack. Whether the insured could be found legally liable for the injuries of the claimants just for selling a book that a reader claimed made him act in a brutal manner is questionable. However, the CGL form would owe the insured at the very least a defense based on claims for bodily injury. As for paying damages for the claims, that would depend on a jury's view of the case; if the insured is found somehow liable, the CGL form would pay.

As for the claims of disseminating obscenity, that in itself is not covered by the CGL form. The form applies to bodily injury or property damage and a charge of disseminating obscenity does not fit the definition of bodily injury or property damage. The CGL form also applies to personal and advertising injury liability, but here again, those injuries are defined on the CGL form and the definitions do not encompass disseminating obscenity. Unless the youth and his parents can somehow claim bodily injury or property damage or personal injury (as defined on the CGL form), the CGL form will not respond.

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