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. 1:12-cv- 07968 (U.S. Dist. Ct., N.D. Ill., E. Div., 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.”