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Click here for the full text of this decision FACTS:In this insurance coverage dispute, the trial court decided cross-motions for summary judgment in favor of Federal Insurance Co. and against Samsung Electronics America Inc., Samsung Telecommunications America LP f/k/a Samsung Telecommunications America Inc., and Samsung Electronics Co. Ltd. (Samsung) on Federal’s duty to defend and indemnify Samsung in five underlying class actions. Four of the five complaints, Farina v. Nokia Inc., No. 002527 (Ct. of Common Pleas, Phila. County, Apr. 19, 2001); Gilliam v. Nokia Inc., No. 15692-2001 (NY Sup. Ct., Bronx County, Apr. 23, 2001); Pinney v. Nokia Inc., No. 01-MD-1421 (Cir. Ct., Balt., Apr. 19, 2001); and Gimpelson v. Nokia Inc., No. 2001CV38932 (Ga. Super. Ct., Fulton County, Jun. 8, 2001), which are substantially similar in all material respects, assert a combination of state law claims for strict products liability (failure to warn, design or manufacturing defect), violations of state consumer laws, breach of implied warranties, negligent misrepresentation, fraud by concealment, civil battery, and civil conspiracy. The court refers to these complaints as the Pinney complaints. The fifth complaint, Dahlgren v. Audiovox Commc’ns Corp., No. 02-0007884 (D.C. Super. Ct., Sep. 6, 2002), asserts violations of state consumer laws and unjust enrichment. Samsung is a manufacturer of wireless handheld telephones (cell phones). It was named as one of many defendants in the Pinney and Dahlgren complaints seeking damages allegedly arising from the use of its cell phones. Although the complaints were filed in different forums and contained variations in the wording of their allegations, all alleged that defendants’ cell phones emit harmful radio frequency radiation that potentially causes injury to human cells when the cell phones are used without a headset. Samsung tendered the defense of the complaints to Federal, from whom it had purchased commercial general liability (CGL) and excess umbrella liability insurance policies, because it believed the class actions alleged “bodily injury” and sought “damages because of bodily injury” under Federal’s policies. Federal defended Samsung in the Pinney class actions under a reservation of rights but declined to defend Samsung in the Dahlgren class action because the plaintiffs in that action expressly disclaimed damages for personal injury resulting from the use of the cell phones. Federal also sought a declaratory judgment that its policies did not obligate it to defend or indemnify Samsung in any of the class actions. Federal and Samsung filed cross motions for summary judgment on Federal’s duty to defend and indemnify Samsung. Additionally, Federal sought reimbursement of the defense costs it had already paid in defending Samsung under the reservation of rights. Without stating the grounds, the trial court granted Federal’s motion for summary judgment in part, holding Federal had no duty to defend or indemnify Samsung in the class actions. The trial court also granted Samsung’s motion in part, holding Federal was not entitled to reimbursement of past defense costs. Samsung appeals the judgment. HOLDING:The court reverses the judgment of the trial court and render judgment that Federal owes Samsung a duty to defend in the Farina, Pinney, Gilliam and Gimpelson class actions. The trial court’s ruling on Federal’s duty to indemnify in the Pinney complaints was premature. The court reverses that part of the trial court’s judgment awarding summary judgment in favor of Federal regarding the Farina, Pinney, Gilliam and Gimpelson class actions on the duty to indemnify and remands for further proceedings. In this case of first impression, the court asks: Does the term “bodily injury” in a CGL policy to include or exclude alleged injury to human cells? Federal’s policies define “bodily injury” as “bodily injury, sickness, disease” that occurs during the policy period. Although the policies do not further define “bodily” or “injury,” the court in Trinity Universal Insurance Co. v. Cowan, 945 S.W.2d 819 (Tex. 1997), concluded that the term “bodily” implied a physical rather than mental injury and required “an injury to the physical structure of the human body.” Cells are part of the physical structure of the body. Additionally, “injury” means “hurt, damage, or loss sustained.” Webster’s Third New International Dictionary 1164 (1981). Jurisdictions that have interpreted these same or similar policy provisions have concluded “bodily injury” includes injury at the cellular level. Other jurisdictions have found injury to human cells sufficient to allege “bodily injury” in other contexts as well. to adopt Federal’s narrow construction that the injury must be diagnosable, identifiable or a discernible physical injury to the body would require reading language into the policy that is not there. Because injury to human cells is not clearly within or excluded by the policy provisions, the court concludes the allegations potentially state a covered claim. Federal argues the costs of cell phone headsets are economic losses and not a result of “bodily injury.” The court looks first to the definitions in Federal’s policies, which provide: “Damages because of bodily injury include damages claimed by any person or organization for care, loss of services or death resulting at any time from the bodily injury.” The Pinney complaints alleged that exposure to radio frequency radiation from the use of cell phones without a headset caused an “adverse cellular reaction” or “cellular dysfunction” that caused “biological injury” and could result in serious health conditions in the future. The damages sought by the complaints-a cell phone headset for each class member who had purchased or leased a cell phone without one-are sought “on account of” or “by reason of” the plaintiffs’ exposure to radiation from the cell phones. And the cost of a headset is not clearly within or excluded by the definition of “damages” in Federal’s policies. The court concludes the damages sought potentially state a claim for “damages because of bodily injury” triggering Federal’s duty to defend the Pinney complaints. The Dahlgren complaint claimed that as a result of Samsung’s conduct, the Dahlgren plaintiffs were injured by paying for cell phones that did not comport with the description provided by Samsung. The Dahlgren complaint expressly disclaimed damages for personal injury. conclude the Dahlgren complaint did not assert facts which, if true, would provide coverage under this portion of Federal’s policies. OPINION:Elizabeth Lang-Miers, J.; FitzGerald, Lang-Miers and Mazzant, J.J.

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