Video Game Addiction Lawsuits: Securing Insurance Proceeds for the Next “World-Wide Epidemic”

David M. Cummings is a partner at Reed Smith LLP and a member of the firm’s Insurance Recovery Group.

Stuart Irvin is a partner at Reed Smith LLP and Co-Chair of the firm’s Video Games & Esports practice.

Sara Mohammed is an associate at Reed Smith LLP and a member of the firm’s Entertainment and Media Group.

Introduction

In 2018, the World Health Organization (“WHO”) added “gaming disorder” as a behavioral addiction in its diagnostic system, the International Classification of Diseases. It defined the disorder as “a pattern of gaming behavior . . . characterized by impaired control over gaming, increasing priority given to gaming over other activities to the extent that gaming takes precedence over other interests and daily activities, and continuation or escalation of gaming despite the occurrence of negative consequences.”[1] At the same time, the WHO noted that “[s]tudies suggest that gaming disorder affects only a small proportion of people who engage in digital- or video-gaming activities.”[2]

Four years later, the American Psychiatric Association (“APA”) updated its Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”)—which mental health professionals use to diagnose mental disorders—to add a condition that it called “Internet Gaming Disorder,” or “IGD.” Although the APA deemed it necessary to include IGD in the DSM-5, it also noted that IGD’s status as a clinical disorder was “the subject of much debate,” such that the organization recommended further ongoing research.[3]

The publication of the WHO and APA classifications did not go unnoticed by the plaintiffs’ bar. Addiction claims have recently been initiated against the publishers of some of the world’s most popular video games. These claims, which are grounded in theories of strict liability and negligence, allege harm that includes “brain damage, cognitive impairment, lost job opportunities and unemployment, depression, anxiety, withdrawal symptoms when not using [d]efendants’ products, withdrawal from life activities and social isolation, poor hygiene, changes in eating and sleeping patterns, distress, and anger.”[4]

Although these addiction cases are still in their early stages, and none of them have progressed to the point of a final judgment, the harms alleged are substantial. Moreover, a significant number of defendants in the gaming ecosystem are alleged to have contributed to the damages suffered by the plaintiffs. The theories advanced in these cases are used to bring claims against companies that provide hardware, software, and services for the gaming industry. In other words, an entire industry is at risk for claims that, according to plaintiffs, are attributable to a “world-wide epidemic” of addiction.[5]

The gaming industry is not alone in facing allegations that addictive features of its products can cause personal and financial injury. For example, a lawsuit filed this past February accuses a prominent dating company and its suite of platforms of encouraging compulsive use and creating addiction.[6] Similarly, prominent social media platforms are currently defending claims that their platforms are “defective” because they are designed to maximize screen time, which can encourage addictive behavior in adolescents.[7] If this litigation trend is any indicator, addiction claims are a real—and growing—threat for companies operating across the full range of digital markets.

The question that naturally follows for companies and individuals facing exposure to addiction litigation is: how will the costs and liabilities associated with these cases get paid? Specifically, are these claims potentially covered by insurance? We conclude that addiction claims against video game publishers are covered, at a minimum, by the defendant’s general liability insurance program. But as with any insurance claim, and particularly where, as here, the claims involve novel issues of fact and law and the potential for substantial new exposure for insurers faced with the prospect of rising defense and settlement costs, insurers may look to exclusionary policy language in an effort to curtail or deny coverage for companies in the gaming industry.

In this article, we anticipate some defenses that insurance carriers are likely to raise in a future dispute over coverage. Some of these defenses have been tested in earlier addiction cases, while others are new, at least as applied to video game addiction claims. The hope is that this article will help facilitate the long process of allocating the risk of loss associated with one of the world’s fastest-growing—and most lucrative—pastimes.

Video Game Addiction Lawsuits – Claims, Theories, and Alleged Damages

Between November 2023 and April 2024, seven lawsuits were filed in federal courts in Illinois, Arkansas, Georgia, and Missouri against a number of video game developers and publishers.[8] The plaintiffs principally argue that defendants “manufactured, published, marketed, and sold video games and gaming products . . . which [d]efendants had specifically developed and designed to cause the addiction experienced by [named plaintiff] and other users.”[9]

Specifically, plaintiffs allege that defendants, with the help of behavioral scientists and neuroscientists on staff, designed games with features and functionality that were deliberately implemented to “ensure its users keep playing longer.”[10] Users would thus spend more on microtransactions (or, as plaintiffs describe them, “monetization schemes”) within the game, with a particular focus on minors and young players.[11] Plaintiffs claim that when users play longer, they in turn spend more money, such that defendants “are consistently increasing their revenue” and prioritizing their bottom line.[12] The lawsuits bring various causes of action sounding in both strict liability and negligence theories.

The impact, plaintiffs claim, is “gaming addiction” or “internet gaming disorder” in users, and specifically young players.[13] According to plaintiffs, symptoms of gaming addiction include “severely reduced control over gaming habits, resulting in negative impacts on daily functioning, including personal, social, educational, and occupational responsibilities.”[14]

Plaintiffs further claim that excessive video game use may lead to cognitive and behavioral issues such as “stress, aggressive behavior, verbal memory deficiency, depression, lowered cognitive abilities, sleeping disorders, anxiety, and behavioral addiction” and other “detrimental health-related outcomes,” even including structural changes to the brain.[15]

All of this, plaintiffs claim, amounts to compensable injury for plaintiffs and their families for, among other things, ongoing medical treatment, mental anguish and pain and suffering, lost earnings, and actual financial losses.[16]

First Line of Defense – Commercial General Liability (CGL) Insurance

CGL insurance is a main pillar of virtually every company’s insurance program.[17] It provides broad liability coverage for third party bodily injury, property damage, and personal and advertising injury resulting from the insured’s business operations. Notably, CGL policies are written on standardized forms, so although there’s always the possibility that coverage varies by virtue of amendment or endorsement, the core terms and conditions are often the same across policies.

CGL insurance not only provides indemnity coverage to the insured for liabilities imposed by a judgment or costs resulting from a settlement, but it also imposes a duty on the insurer to defend the insured against any lawsuit seeking covered damages, even if such suit is “groundless, false or fraudulent.”[18] The duty to defend is a particularly valuable benefit of the CGL policy where, as here, the insured faces potentially enormous costs to defend against novel claims in complex multi-party litigation. Moreover, defense costs are typically a benefit separate from the policy’s limit of liability, such that the defense costs do not erode those limits, and in some cases, might even provide payment in excess of the value of those limits.

Is Addiction "Bodily Injury"?

CGL coverage is triggered when a lawsuit alleges that, as the result of an accident, a third party experienced “bodily injury,” “property damage,” or “personal and advertising injury,” as the policy defines those terms. The allegations in the video game addiction lawsuits likely fit within the meaning of “bodily injury,” which CGL policies typically define as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”[19] The lawsuits seek damages related to gaming addiction, a behavioral addiction and mental disorder recognized by both the WHO and APA (as described above). Although there is limited legal precedent addressing this specific issue, “addiction”—including the type at issue here—likely fits within a typical CGL policy’s definition of “bodily injury.”[20]

Most recently, in the context of insurance coverage litigation involving allegations of opioid addiction, multiple courts have acknowledged that “addiction” constitutes bodily injury within the meaning of CGL insurance. For example, in Acuity v. Masters Pharmaceutical, Inc., the court analyzed the general liability insurer’s duties to defend and indemnify a pharmaceutical company in lawsuits brought by governmental entities related to costs incurred fighting the opioid epidemic.[21] The focus of this matter was whether litigation brought by governmental entities (as opposed to the individuals themselves suffering from addiction) fit within coverage. Nonetheless, the court made a threshold determination that there was no dispute “that physical harm from opioid addiction constitutes bodily injury under the policies.”[22] Similarly, the court in Amerisourcebergen Drug Corporation v. Ace American Insurance Company held that the underlying opioid litigation “seeks damages for ‘bodily injury’ under the CGL policy because the underlying plaintiff “expressly seeks as damages compensation . . . related to diagnosis, treatment and cure of addiction[.]’”[23] As part of this analysis, the court acknowledged that the policy defined “bodily injury” to include “disease” and that “drug abuse, addiction, and/or dependence” are recognized diseases in both Pennsylvania and West Virginia (the operative laws in that matter).[24] These cases, and others like them, offer helpful direction for how courts might view the injuries alleged in video game addiction lawsuits.

Moreover, as pled in the lawsuits currently pending, the gamers’ injuries include “structural changes in the brain, particularly a reduction in and [sic] white-matter density . . . and gray-matter volume.”[25] These allegations suggest physical, tangible injuries to the body, further bolstering the argument that the gaming addiction lawsuits qualify as claims for “bodily injury.”[26]

The lawsuits also allege that the parents and family members of the gamers were injured by the defendants’ conduct. These allegations largely sound in theories of emotional distress and mental anguish. In most jurisdictions, allegations of pure emotional or mental distress do not amount to “bodily injury” without accompanying physical manifestation.[27] That said, many of these jurisdictions treat this “physical manifestation” requirement liberally, finding that symptoms such as high blood pressure,[28] sleep loss,[29] headaches,[30] and “stomach knots”[31] are sufficient. To maximize the potential for coverage for such allegations by family members, it will be important for insured companies to explore and develop any physical manifestations throughout the course of discovery.

Even in the event a court disagrees that one or more subset(s) of injuries amount to “bodily injuries” (a conclusion that we do not accept), this should not materially impact defense coverage. It is well established that where a lawsuit contains allegations that trigger coverage and other allegations that do not (or implicate a coverage exclusion), the insurer must nonetheless defend the entirety of the suit.[32] Moreover, the duty to defend is subject to an extremely liberal standard: if, when comparing only the operative complaint and the policy itself, there are allegations that even potentially trigger coverage, the insurer must defend.[33]

No Coverage for “Intentional” Acts

In general, CGL insurance responds to covered bodily injury and property damage caused by “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”[34] These policies also include an exclusion for “expected or intended injury,” which provides that insurance does not apply to bodily injury or property damage “expected or intended from the standpoint of the insured.”[35] As the current video game lawsuits continue to develop and similar suits are filed, the insurance disputes that follow are likely to focus, at least in large part, on a single pivotal issue: are the plaintiffs’ injuries “expected or intended” from the standpoint of the defendants, such that CGL coverage is limited, or even worse, precluded entirely?[36]

The “gaming addiction” plaintiffs bring a host of allegations sounding in negligent—or “accidental”—conduct, including causes of action such as ordinary negligence, negligent design, negligent failure to warn, and negligent misrepresentation, to name just a few.[37] The problem, though, is that plaintiffs allege that calculated and deliberate actions by defendants led to the injuries in question. Plaintiffs go so far as to accuse defendants of “specifically develop[ing] and design[ing their games] to cause the addiction experienced by [plaintiffs] and other users.”[38] They claim that defendants “design their games to keep consumers playing—and spending” and “to be as addictive as possible,” “rely[ing] on minors and young adults becoming addicted to their video games so they play for more hours and spend more money on microtransactions.”[39]

In the face of a growing number of “gaming addiction” lawsuits and exposures, insurers will likely point to these and similar allegations to argue that the complained-of injuries are the result of “expected or intended conduct,” and therefore claim that coverage is unavailable. Although this is an argument policyholders will have to contend with, it is ultimately a losing one in our opinion.

As an initial matter, even if insurers can point to allegations in the complaints that might implicate the “expected or intended injury” exclusion, insurers nonetheless must defend the lawsuits as long as the complaint includes allegations of covered conduct.[40] Moreover, where non-excluded conduct remains possible in the complaint, insurers cannot avoid their indemnity obligations unless and until the record develops such that insurers can show the insured acted with requisite conduct to trigger the exclusion. As reasoned in Hout v. Coffman, such a determination “is premature and does not lie where the complaint in the underlying action alleges several grounds of liability, some of which invoke the coverage of the policy, and where the issues of indemnification and coverage hinge on facts which will necessarily be decided in that underlying action.”[41] The Hout court further held that “[a] determination can be made in that action as to whether [the] defendant’s act was negligent or intentional, thus deciding the question of indemnification.”[42] This principle of law makes sense: without it, any plaintiff could allege either expected or intended conduct, and policyholders could lose coverage even where there is ultimately insufficient evidence to prove the allegations.

The real task for policyholders facing these lawsuits will be understanding the salient facts in the case and managing the development of the evidentiary record with an eye towards this insurance coverage issue. If policyholders can limit or avoid judicial determinations that play into the insurers’ “expected or intended” position, they are in turn better equipped to maximize insurance recovery.

Nonetheless, even if there is a determination that the insured acted with expected or intended conduct, the inquiry does not necessarily end there. In many jurisdictions, it is not enough that an insured acted with such conduct. Rather, in order for the “expected or intended injury” exclusion to apply, the insurer must prove that the insured expected or intended the precise type of harm asserted by plaintiffs. In most jurisdictions, this is a question of subjective (not objective) intent.[43] Stated differently, even if the action is expected or intended, if the resultant harm is nonetheless accidental, the coverage exclusion does not apply.

The court in Johnstown v. Bankers Standard Insurance Company[44] provided illustrative guidance. In Johnstown, the insured landfill operator sought coverage from its CGL insurers for lawsuits alleging harm from about 15 years of polluted materials leaking from the landfill into the surrounding groundwater.[45] The insurers argued that the “expected or intended injury” exclusion applied because the insured had received warnings over the years regarding this contamination. The alleged injuries were “expected or intended,” thus triggering this exclusion.[46] The court reversed the lower court on this issue, holding that this exclusion did not apply.[47]

In doing so, the court emphasized that this exclusion should be read “fairly narrowly,” explaining that “to do otherwise, and to exclude all losses or damages which might in some way have been expected by the insured, could expand the field of exclusion until virtually no recovery could be had on insurance.”[48] The court explained that “though an intentional act may ultimately cause certain damages, those damages may . . . be considered ‘accidental’ if the ‘total situation could be found to constitute an accident.’”[49] It further reasoned:

In general, what make injuries or damages expected or intended rather than accidental are the knowledge and intent of the insured. It is not enough that an insured was warned that damages might ensue from its actions, or that, once warned, an insured decided to take a calculated risk and proceed as before. Recovery will be barred only if the insured intended the damages, or if it can be said that the damages were, in a broader sense, “intended” by the insured because the insured knew that the damages would flow directly and immediately from its intentional act.[50]

In jurisdictions that follow this approach, it will be important for insureds facing video game addiction lawsuits to develop the record with these nuanced questions in mind. If an insured is able to point to evidence that demonstrates it did not develop games with an intent to cause or with an expectation of the particular injuries at issue, it will be better suited to maximize coverage.[51]

Notably, other courts that have considered this issue in the context of addiction claims have refused to apply the coverage exception. For example, in Liberty Mutual Fire Insurance Company v. J M Smith Corporation, the court determined accusations that the insured pharmaceutical distributor was “on notice of the growing epidemic of drug abuse from the drugs which [it] supplied” but nevertheless “inserted [itself] as an integral part of a pill mill process” were insufficient to preclude coverage.[52] The Fourth Circuit affirmed, finding that “the distinction between intentional acts and intended consequences is instructive.”[53] Specifically, the court held that, although the insured allegedly “knew certain drugs were ones that were abused, and then continued to distribute them without effective controls,” this “does not preclude finding accidental injury.”[54] These cases might offer helpful parallels for policyholders facing gaming addiction lawsuits.

Although many jurisdictions adopt a similar approach to Johnstown, it is important to note that not all jurisdictions are as narrow in their application of this exclusion. For example, courts in the Eighth Circuit have applied an “objective” test to this exclusion, reasoning that “the word ‘expected’ denotes that the actor knew or should have known that there was a substantial probability that certain consequences will result from his actions,”[55] such that the insured is measured by a “reasonably prudent person in the position of the [insured]” standard.[56] Although it is certainly still possible to overcome the “expected or intended injury” exclusion in these jurisdictions, the broader standard must nonetheless inform the insured’s approach to coverage.

Conclusion

The process of allocating the risk of loss for injuries suffered by a few in a pastime that many enjoy is not new. The consumption of alcohol and tobacco, the thrill of driving a fast car or a motorcycle, and even the desire to travel from one city to another all involve risk to users of personal injury and property damage. The commercial insurance industry is the way that businesses—such as video game publishers—allocate risk. However, insurance carriers, when faced with novel claims and the prospect of significant unpriced losses, have an incentive to deny coverage for claims. In a common law system, the process of asserting claims, raising defenses, and adjudicating disputes over policy coverage can be a long and difficult one. We hope that this article, which merely addresses a few threshold coverage issues in the context of CGL policies, can help to accelerate that process.[57]

Notes

[1] World Health Organization, Addictive behaviours: Gaming disorder (Q&A), Oct. 22, 2020. A study referenced by the WHO advised that “[d]ue to the variability in diagnostic approaches, knowledge users should interpret the wide IGD [internet gaming disorder] prevalence ranges with caution.” Nazia Darvesh, et al., Exploring the Prevalence of Gaming Disorder and Internet Gaming Disorder: A Rapid Scoping Review, Systematic Reviews (2020).

[2] Id.

[3]See American Psychiatric Association, Internet Gaming (reviewed by James Sherer, M.D., Jan. 2023) (“The research and the debate are ongoing. Some argue, for example, that gaming could be a symptom of an underlying problem, such as depression or anxiety, and not a disorder or addiction itself.”).

[4] Complaint, Glasscock v. Activision Blizzard, Inc. et al., No. 2:24-cv-4036 (W.D. Mo.), filed Mar. 13, 2024, https://www.law360.com/cases/65f22876a04db901b897f147.

[5] Id. at ¶ 5.

[6] Oksayan et al. v. Matchgroup, Inc., No. 3:24-cv-00888 (N.D. Cal. Feb. 14, 2024).

[7] In re Soc. Media Adolescent Addiction/Personal Inj. Prods. Liab. Litig., 2024 U.S. Dist. LEXIS 44187 (2024) (MDL No. 3047).

[8] Broussard v. Microsoft Corporation et al., No. 1:24-cv-01697 (N.D. Ga.), filed Apr. 19, 2024; Donerson v. Epic Games, Inc. et al., No. 3:24-cv-41 (E.D. Ark.), filed Mar. 18, 2024; Glasscock v. Activision Blizzard, Inc. et al., No. 2:24-cv-4036 (W.D. Mo.), filed Mar. 13, 2024; Angelilli v. Activision Blizzard, Inc. et al., No. 1:23-cv-16566 (N.D. Ill.), filed Dec. 6, 2023; Jimenez v. Microsoft Corp. et al., No. 3:23-cv-03678 (S.D. Ill.), filed Nov. 14, 2023; Johnson et al. v. Activision Blizzard, Inc. et al., No. 4:23-cv-04107 (W.D. Ark.), filed Nov. 8, 2023; Dunn v. Activision Blizzard, Inc. et al., No. 3:23-cv-00224 (E.D. Ark.), filed Nov. 3, 2023. Five of these matters are presently pending consolidation into one multi-district litigation. See In re Video Game Addiction Prods. Liab. Litig. (2024) (MDL No. 3109).

[9] E.g., Angelilli, ¶ 7 (emphasis omitted).

[10] Id. at ¶ 8.

[11] Id. at ¶¶ 9–11, 104.

[12] Id. at ¶ 14.

[13] Id. at ¶ 222–23.

[14] Id. at ¶¶ 221–22.

[15] Id. at ¶¶ 245, 248, 254.

[16] Id. at Part VII.

[17] Although this article focuses on commercial general liability insurance, it is possible other forms of insurance also provide coverage. For example, if a company carries standalone product liability insurance, depending on the precise terms and conditions of that coverage, it might also be a source of insurance proceeds for this type of claim.

[18] See Richmond, Douglas R., Using Extrinsic Evidence to Excuse a Liability Insurer’s Duty to Defend, 74 SMU L. Rev. 119, 136 (Apr. 18, 2021).

[19] Westfield Nat’l Ins. Co. v. Quest Pharms., Inc., 57 F.4th 558, 561 (6th Cir. 2023) (quoting Westfield Commercial General Liability Coverage Form and Motorists Commercial General Liability Coverage Form).

[20] It is worth noting that an insured is not required to admit an allegation in a complaint in order to secure insurance coverage for the defense of that claim. The U.S. video game industry, through its trade association, continues to argue that the WHO’s “gaming disorder” classification is the result of a “process [that] lacks transparency, is deeply flawed, and lacks objective scientific support.” Entertainment Software Association, Preeminent Researchers and Scientists Oppose WHO’s Proposed Video Game Action, accessed April 19, 2024.

[21] 2020-Ohio-3440, at ¶ 1 (Ohio Ct. App. 2020).

[22] Id. at ¶ 15.

[23] No. 17-C-36, 2020 W.V. Cir. LEXIS 3, at *15 (W.Va. Cir. 2020).

[24] Id. at *21–22.

[25] E.g., Angelilli, at ¶ 254.

[26] See, e.g., Allstate Ins. Co. v. Diamant, 401 Mass. 654, 658 (1988) (“Bodily injury imports harm arising from corporeal contact. In this connection ‘bodily’ refers to an organism of flesh and blood.”) (quoting Williams v. Nelson, 228 Mass. 191, 196 (1917)); Farm Bureau Mut. Ins. Co. v. Hoag, 136 Mich. App. 326, 328 (Mich. Ct. App. 1984) (the term bodily injury fundamentally means “hurt or harm to the human body”).

[27] See, e.g., Taylor v. Mucci, 288 Conn. 379, 385 (2008) (collecting cases).

[28] W. Cas. & Sur. Co. v. Waisanen, 653 F. Supp. 825, 832 (D.S.D. 1987).

[29] Lien Trinh v. Allstate Ins. Co., 109 Wash. App. 927, 936 (Wash. Ct. App. 2002); but see Econ. Preferred Ins. Co. v. Jia, 135 N.M. 706, 710 (N.M. Ct. App. 2004) (“crying, shaking, and sleep difficulties are not enough”).

[30] Gurley v. Sheahan, No. 06-C-3454, 2009 U.S. Dist. Lexis 62995, at *21 (N.D. Ill. July 21, 2009).

[31] State Farm Fire & Cas. Co. v. Westchester Inv. Co., 721 F. Supp. 1165, 1167 (C.D. Cal. 1989).

[32] See, e.g., Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1081, 1084 (1993); Aetna Ins. Co. v. Waco Scaffold & Shoring Co., 370 So.2d 1149, 1152 (Fla. Dist. Ct. App. 1978); Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 194 (1976).

[33] See, e.g., Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 19 (1995); Home First, Inc. v. Mid-Continent Cas. Co., 2022 OK CIV APP 12, ¶ 21 (Okla. Civ. App. Aug. 13, 2020); CMK Dev. Corp. v. W. Bend Mut. Ins. Co., 395 Ill. App. 3d 830, 839 (Ill. App. Ct. 2009); United Nat’l Ins. Co. v. Frontier Ins. Co., 120 Nev. 678, 687 (2004).

[34] Discover Prop. & Cas. Ins. Co. v. Blue Bell Creameries USA, Inc., 73 F.4th 322, 329 (5th Cir. 2023) (quoting language that the parties stipulate is identical across the multiple commercial general liability policies at issue).

[35] Id. at 331.

[36] Although we focus on substantive considerations for this issue, it is important to note that the burden to demonstrate that a policy provision applies to curtail or exclude coverage rests solely with the insurer. See, e.g., Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010); Platek v. Town of Hamburg, 24 N.Y.3d 688, 694 (2015). This is a particularly high bar for insurers, because insurance policies are construed broadly while policy exclusions are construed narrowly, and policies are construed based upon the reasonable expectations of the insured. See, e.g., Liberty Mut. Fire Ins. Co. v. Martinez, 157 So. 3d 486, 488 (Fla. Dist. Ct. App. 2015); Medina v. GEICO Indem. Co., 8 Cal. App. 5th 251, 259 (Cal. Ct. App. 2017); C.P. ex rel. M.L. v. Allstate Ins. Co., 996 P.2d 1216, 1223 (Alaska 2000). In an actual disputed claim on this issue, the insured would benefit from these fundamental principles of law.

[37] E.g., Angelilli, Counts IV–IX, XI, XVII.

[38] Id. at ¶ 7.

[39] Id. at ¶¶ 10, 106.

[40] See Expedia, Inc. v. Steadfast Ins. Co., 180 Wash. 2d 793, 803 (2014) (“An insurer must . . . defend its insured until it is clear that a claim is not covered under the policy.”); Indalex Inc. v. Nat’l Union Fire Ins. Co., 83 A.3d 418, 421 (Pa. Super. Ct. 2013) (“an insurer must defend against all claims until it is clear that the underlying plaintiff cannot recover on any claim”).

[41] 511 N.Y.S.2d 990, 991 (N.Y. App. Div. 4th Dept. 1987); see also Pac. Emplrs. Ins. Co. v. Saint Francis Care, Inc., 729 F. App’x 129, 130 (2d Cir. 2018) (“because a duty to indemnify is based on the ‘facts established at trial and the theory under which judgment is actually entered in a case,’ it is often premature to issue a declaratory judgment as to the duty to indemnify before the basis for liability is established”) (internal citations omitted); Am. Reliable Ins. Co. v. Vlieland, No. CV 17-100-M, 2018 U.S. Dist. LEXIS 54774, at *7 (D. Mont. Mar. 30, 2018) (“though the alleged intentional acts trigger a duty to defend the insureds, the duty to indemnify the [insureds] cannot be determined until the allegations in the Underlying Complaint are proven or established”).

[42] Hout, 511 N.Y.S.2d at 991.

[43] See U.S. Fire Ins. Co. v. Rothenberg, No. 98-2275, 1998 U.S. Dist. LEXIS 15009, at *23 (E.D. Pa. Sept. 22, 1998); Washington Hous. Auth. v. North Carolina Hous. Auths. Risk Retention Pool, 130 N.C. App. 279, 285 (N.C. Ct. App. 1998).

[44] 877 F.2d 1146 (2d Cir. 1989).

[45] Id. at 1147.

[46] Id.

[47] Id. at 1154.

[48] Id. at 1150.

[49] Id. (emphasis in original, internal citations omitted).

[50] Id. at 1150–51 (internal citations omitted). Many other jurisdictions follow a similar approach. See, e.g., Tenn. Farmers Mut. Ins. Co. v. Evans, 814 S.W.2d 49, 55 (Tenn. 1991) (“in order to find that an intended or expected acts exclusion applies, it must be established that the insured intended the act and also intended or expected that injury would result”) (emphasis in original); Rothenberg, 1998 U.S. Dist. LEXIS 15009, at *23 (“[I]t is not sufficient that the insured intended his actions; rather, for the resulting injury to be excluded from coverage, the insured must have specifically intended to cause harm.”); N.C. Farm Bureau Mut. Ins. Co. v. Stox, 412 S.E.2d 318, 325 (N.C. 1992) (“the insurer must prove that the injury itself was expected or intended by the insured. Merely showing the act was intentional will not suffice”); Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App. 4th 715, 748 (Cal. Ct. App. 1993) (“The appropriate test for ‘expected’ damage is whether the insured knew or believed its conduct was substantially certain or highly likely to result in that kind of damage.”); Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co., C.A. No. 89C-SE-35, 1994 Del. Super. LEXIS 571, at *11 (Del. Super. Ct. Apr. 22, 1994) (adopting the “narrow” standard following New York).

[51] The job of the policyholder (the video game publisher) is not made easier by the fact that the gaming community has its own rich lexicon, and in that lexicon an “addictive” game is considered a good thing. Among gamers, an “addictive” game is one that is particularly fun and engaging. Those who are dependent on opioids or tobacco do not typically celebrate that fact. But gamers frequently celebrate “addictive games [that] have erected sturdy communities and have friends indulging in hours of gaming regularly.” Aly Azmy, 7 Most Addictive Games, Game Rant (Sept. 11, 2023); Rolling Stone, Game Never Over: Top 10 Most Addictive Video Games (Mar. 11, 2014). Some game publishers reflect the jargon of the community in their own marketing. For instance, a company called Addicting Games claims to be “the largest online games site in the US. Reaching over 10 million unique users every month.” About Addicting Games (accessed April 5, 2024). Addicting Games goes as far as to organize its titles under the heading “Most Addicting.” Id. Mobile games typically use the phrase “addictive” in their marketing efforts more freely than their console, cloud, or PC counterparts, as evidenced by a sponsored advertisement for Last War: Survival calling the game “easy, fun, and super addictive.” First Fun Hong Kong Ltd., Last War: Survival [Online Advertisement] (Feb. 12, 2024). That said, some of these issues may arise as a consequence of translating advertising materials from Chinese or other languages into English.

[52] No. 7:12-2824-TMC, 2013 U.S. Dist. LEXIS 136448, at *4 (D.S.C. Sep. 24, 2013).

[53] Liberty Mut. Fire Ins. Co. v. J M Smith Corp., 602 F. App’x 115, 120 (4th Cir. 2015).

[54] Id. at 120, 122.

[55] Diocese of Winona v. Interstate Fire & Cas. Co., 89 F.3d 1386, 1391 (8th Cir. 1996) (quoting Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 720 (8th Cir. 1981)).

[56] TIG Ins. Co. v. Missionary Oblates of Mary Immaculate, No. 20-cv-2261, 2023 U.S. Dist. LEXIS 190388, at *13 (D. Minn. Oct. 24, 2023).

[57] This article is not intended to provide legal advice to be used in any specific fact situation; the contents are intended solely to advance the discussion of issues of interest to the legal and business communities.