Two commercial liability insurance companies have filed a complaint against
Phusion Projects Inc., the company that makes Four Loko®, an alcoholic
beverage containing stimulants such as caffeine, guarana and taurine,
seeking a declaration that “they do not owe a duty to defend or indemnify”
the company in personal injury and wrongful death actions filed against it
in several states. The Netherlands Ins. Co. v. Phusion Projects Inc., No. 12-7968 (N.D. Ill., filed October 4, 2012).

The underlying complaints involve a California resident who was shot to
death by police after consuming the beverage and acting “in an irritated,
agitated, and disoriented manner”; a New York resident who sustained injuries
in an auto accident with a woman who had consumed the product and allegedly drove her car in a reckless manner; a New Jersey resident who died from a stabbing in an attack by a woman who had allegedly “imbibed Four
Loko”; a Pennsylvania resident who was run over after sitting on public transit
trolley tracks in a “highly intoxicated state”; and a Florida resident who sued a
Four Loko® distributor for the death of a son who was struck as an intoxicated
pedestrian by several cars.

Contending that their policies contain a liquor liability exclusion, the insurance
company plaintiffs note that the court previously absolved them of a
duty to defend in similar litigation involving other underlying Four Loko®
lawsuits. They claim that the previous determination “is preclusive of the same
issues in this case” because no claim asserted in the complaints discussed
above is “wholly independent of intoxication.”

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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