5/22/2014

Thorns of 3D Printing

Why this emerging technology isn't smelling so sweet to insurers.

By William F. Knowles , Kathleen M. Grohman

If you can dream it, chances are a 3D printer can build it. Are the days of papier-mâché, buying a product in the store, or even ordering products online soon to be a thing of the past? After all, why go through all of that effort when you can just print what you need?

Models, guns, chocolate, and someday maybe even human organs—3D printers make it possible for the average consumer to create almost any solid object at the touch of a button. It all starts with the specifications or blueprint for the object to be printed. The printer begins with a cross section of the bottom of the object and then adds successive layers to build it up. The materials used, or “ink,” can be metal, plastic, powder, or a variety of other substances.

But this creation comes at a price. Certain additive processes have been found to emit ultrafine particles or aerosol emissions, which have proven to be toxic in animal testing. Without proper ventilation, these emissions may pose serious health risks. The products themselves also may be hazardous if they malfunction. 3D printers pose complex issues for insurance professionals, including potential claims for bodily injury, property damage, and copyright infringement.

Potential Claim: Bodily Injury and Property Damage

There is a growing belief that 3D printers may cause bodily injury or property damage through the emission of harmful particles during the printing process. Those particles may enter a person’s body or may adhere to property in the printing area. Liability policies define “bodily injury” to include “bodily injury, sickness, or disease sustained by any person, including death resulting from any of these at any time.” Those same policies define “property damage” to include “physical injury to tangible property.” The question arises as to whether such bodily injury or property damage would be covered under a liability policy and, if so, by which policy or policies.

Bodily injury and property damage claims for exposure to harmful particles can be brought against many different parties involved in the 3D printing industry from the consumer end of the supply chain all the way up to the printer designers.

For example, if a 3D printer is owned by an individual consumer and used in the consumer’s home, a claimant injured by its operation may bring a claim against that owner, implicating a homeowners’ policy. But the company that supplied the ink—the substance used to print and the particles of which are actually inhaled—also may be implicated. The manufacturer of the printer may be liable for defective design or failure to properly ventilate or warn. If a ventilation system is separately manufactured, that company may be implicated, as well.

Harm, whether to body or property, from emission of harmful particles during operation of a 3D printer may implicate the pollution exclusion. Traditional environmental pollution generally occurs outside, but particle emission from 3D printers generally occurs indoors.

Some courts have held that the pollution exclusion does not apply to indoor contamination. For example, in Nav-Its Inc. v. Selective Ins. Co. of Am., the pollution exclusion did not apply to exclude coverage for bodily injury arising from the inhalation of sealant fumes. But more courts are reaching the opposite conclusion. In Technical Coating Applicators Inc. v. United States Fid. and Guar. Co., the pollution exclusion applied to bar coverage for bodily injury sustained by breathing vapors emitted from roofing products. And, in Midwest Family Mut. Ins. Co. v. Wolters, the pollution exclusion applied to damages arising from indoor exposure to carbon monoxide.

The courts may consider 3D printer emissions claims to be analogous to Chinese drywall claims. Chinese drywall allegedly off-gassed a substance that reacted with copper (electrical wiring, pipes, fixtures, etc.) in homes and otherwise created an unpleasant odor, damaging home furnishings. Courts struggled with whether the gas was a pollutant because, instead of traditional environmental pollution of the general atmosphere or water, the gas was confined to the interior of a house. 3D printer emissions are similar because their potential damage also is confined.

Most courts that have considered the issue have concluded that off-gas from Chinese drywall is a pollutant, but other courts have disagreed. In Travco Ins. Co. v. Ward, the Supreme Court of Virginia held that sulfuric gases from Chinese drywall are pollutants because they fall within the plain meaning of “contaminant” and “irritant.” State regulations consider sulfur gas a pollutant, and the pollution exclusion was not so overly broad as to invalidate coverage for almost any condition in the insured’s home and, thus, was reasonable.

Similarly, in QBE Ins. Corp. v. Estes Heating & Air Conditioning Inc., the court found that the off-gas from Chinese drywall “clearly qualifies as a ‘pollutant,’” and held that the unambiguous language of the policy barred coverage. The court noted that, generally, Alabama courts limit pollution exclusions to traditional environmental pollution because the exclusion is either ambiguous or not reasonably expected by the policyholder—but it found neither of those rationales applicable. Interestingly, the insured had not installed the offending drywall. It had only installed an HVAC system that distributed the pollution throughout the structure, worsening the plaintiff’s exposure to the pollution. The court rejected the insured’s argument that it was not the polluter, finding that Alabama law does not “distinguish between pollution created by the insured and pollution created by a third party.”

But in In re Chinese Mfg. Drywall Prods. Liab. Litig., off-gas from Chinese drywall was not a pollutant because the insured homeowners were not polluters and pollution exclusions were intended to apply only to environmental pollution, which contamination inside the insured’s home was not.

When a person breathes in harmful particles emitted from a 3D printer as it prints, he may not suffer ill effects from the inhalation until much later. This type of situation presents a trigger issue. The time that the damage occurred could be the time the person first inhaled the harmful particles, the continuous time that the particles caused lung damage, or the time that the person first realized the harm by experiencing symptoms. Some courts that have considered lung diseases like asbestosis and silicosis have limited bodily injury to periods of actual injury in fact. So whether the claimant will succeed in a claim may turn on the jurisdiction’s test for bodily injury.

Potential Claim: Bodily Injury from Use

Perhaps the most notorious example of the implications of 3D printers involves using them to produce functional plastic handguns. People posted blueprints for such products online and downloaded them thousands of times before the government ordered that they be removed from public access. Test firing of plastic guns suggest a relatively short useful life, ending when the guns catastrophically fail in the user’s hand. Wounded users will undoubtedly seek recovery for their injuries. And this is not the only scenario potentially giving rise to user claims and coverage questions.

There are many ways for bodily injury to occur from the use of a 3D-printed gun. The owner of the 3D printer could print it out and then it could explode in his hand when he attempts to fire it. He could potentially bring a claim against the manufacturer of the printer, alleging that the printer did not properly print the gun. He also could bring a claim against the party who provided him with the blueprint, alleging defective design. If the party who provided the blueprint is different from the party who created the blueprint, he might have a claim against both parties.

The chain of potentially liable parties gets even longer if it wasn’t the owner of the 3D printer who was injured by the gun. The owner’s friend may be the one firing, or it could be customers who bought 3D-printed guns from the printer’s owner. It may not even be the shooter who is injured; it could be an intended target or a bystander.

Who are the target defendants, and what are the coverage issues? The target defendants include the supplier of the blueprints (product/design claim) and the operator of the printer (product claim). As to the blueprint supplier, coverage under a typical general liability policy will hinge in part on the application of the professional services/engineering/design exclusions that typically preclude coverage for those types of risks usually covered under a professional liability policy. Because the supplier provided a design that gives rise to the products claim, coverage may be precluded. As to the operator of the printer, coverage for claims may be barred by typical homeowners’ policies that exclude coverage for business pursuits, to the extent the printer operator sold the gun to either the injured person or a third party.

Potential Claim: Copyright and Trademark Infringement

It all starts with the specifications, but it’s possible that 3D printer owners will unwittingly obtain design specifications without permission—giving rise to an intellectual property violation claim under Coverage B of the typical liability policy.

Coverage B provides coverage for “personal and advertising injury,” including the offense of copyright infringement. Many blueprints are available on the Internet, so an insured might not know whether the specifications were posted with the owner’s permission. Some 3D printers have the capability to obtain object specifications by scanning a physical object. Those specifications based on the scan of a physical object can then be posted online, or the 3D printer’s owner might buy an object and scan it to get its specifications and print out copies to sell. Regardless, the true owner of the intellectual property will undoubtedly consider pursuing a claim against those violating intellectual property rights. Any claim under Coverage B will need to include consideration of multiple exclusions, including the knowing violation of the rights of another, infringement of copyright, and electronic chat rooms or bulletin boards, among others.

3D printing capabilities are still expanding, so it seems that eventually almost anything could be printed. These printers are already making toys, clothes, shoes, medical devices, cakes and candies, and the first viable human organ is expected out soon. With such broad potential, it is likely that claims arising from the use of 3D printing and related coverage issues are on the horizon.



William F. Knowles is a partner in the global insurance department of CLM Member Firm Cozen O’Connor. He can be reached at wknowles@cozen.com, www.cozen.com.

Kathleen M. Grohman is an associate in the global insurance department of CLM Member Firm Cozen O’Connor. She can be reached at kgrohman@cozen.com.

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