Insurance Companies Ask Court to Declare They Are Not Obligated to Defend Four Loko Manufacturer in Products Liability Lawsuits: Netherlands Ins. Co. v. Phusion Projects, Inc.

800px-Guarana.jpgTwo insurance companies have brought a declaratory judgment action, Netherlands Ins. Co. v. Phusion Projects, Inc., asking the court to declare that they are not bound to defend or indemnify Phusion in several products liability and wrongful death lawsuits relating to the company’s product, Four Loko. The plaintiffs state that they have obtained similar declaratory judgments in the past, and that the present lawsuits present the same underlying issues. The declaratory judgment case could significantly impact the pending personal injury cases, along with any potential future claimants, by making recovery of damages more difficult.

Four Loko is a beverage marketed as an “energy drink,” containing alcohol and a variety of stimulants like caffeine and guarana. It has been the subject of numerous lawsuits related to injuries and deaths from intoxication allegedly caused by the drink. The declaration sought by the plaintiffs in the present case would affect five pending lawsuits:

Fiorini v. Phusion Projects, LLC, Superior Court of Fresno County, California. The plaintiff is suing for the wrongful death of his son, who drank two 23.5-ounce cans of Four Loko and allegedly became disoriented and paranoid. He began firing a shotgun, and was subsequently shot and killed by police.

- Blume v. Phusion Projects, Inc., Supreme Court of Onodaga County, New York. The plaintiff suffered injury in an auto accident with the co-defendant, who was allegedly intoxicated after consuming Four Loko.

- Estate of Hus v. Phusion Projects, LLC, Superior Court of Camden County, New Jersey. The complaint claims that an individual, allegedly intoxicated after drinking Four Loko and other alcoholic drinks, stabbed the decedent to death in her home.

- D’Alterio v. Phusion Products, Court of Common Pleas of Philadelphia County, Pennsylvania. The wrongful death suit alleges that the plaintiff’s son consumed Four Loko and, unable to appreciate his actions, sat on public transit trolley tracks, where he was struck and killed by a trolley car.

- Bailey v. Schenk Co., Circuit Court of the Ninth Judicial Circuit, Orange County, Florida. The complaint does not name Phusion as a defendant, but alleges that Schenk was a distributor of Four Loko. The plaintiffs allege that their son, who died after being hit by multiple cars as a pedestrian, was impaired after drinking two cans of Four Loko.

According to the insurance companies’ complaint, all of the state court lawsuits allege that Four Loko, because of its stimulant content, masks the effects of its alcohol content, causing users to remain both conscious and active, and to engage in dangerous activities, when mere alcohol consumption might have already slowed them down. The insurance companies cite “liquor liability” exceptions in the commercial liability policies issued to Phusion, arguing that the personal injury lawsuits all involve injuries resulting from intoxication. A prior decision cited by the insurance companies involved a declaration of no duty to defend or indemnify Phusion because of that exception.

The personal injury lawyers at Lebowitz & Mzhen are skilled at pursuing justice for people in Maryland who have been injured due to the negligent or illegal acts of others. Contact us today online or at (800) 654-1949 for a free and confidential consultation.

Web Resources:

Complaint for Declaratory Judgment (28 USC 2201, et seq.) (PDF file), Case No. 1:12-cv-07968, Netherlands Ins. Co., et al v. Phusion Projects, Inc., et al, U.S. District Court for the Northern District of Illinois, Eastern Division, October 4, 2012

More Blog Posts:

Court Denies Motion to Dismiss Brought by Manufacturer of Four Loko in Putative Class Action Lawsuit: Yourth v. Phusion Projects, LLC, Maryland Accident Law Blog, October 24, 2012
Energy Drinks Allegedly Cause Maryland Teen’s Death from Caffeine Toxicity, Maryland Accident Law Blog, March 21, 2012
Maryland Teen Dies After Falling from Moving Vehicle, Mother Blames Alcoholic Beverage Manufacturer, Maryland Accident Law Blog, March 5, 2012
Photo credit: ‘Guarana’ by User:Wesley2048 [Public domain], via Wikimedia Commons.

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