## Facts

- Joe McGinniss authored *Fatal Vision*, a nonfiction book about Jeffrey MacDonald’s family murders and MacDonald’s conviction, including MacDonald’s account and trial-related materials.
- Before publication, MacDonald executed releases broadly discharging McGinniss from claims related to the book, including libel/defamation and privacy claims, and granting rights to use the story (including fictionalized versions).
- After publication, MacDonald sued McGinniss in federal court in California, asserting claims framed as fraud, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress, seeking damages based on McGinniss’s portrayal and conduct.
- McGinniss sought coverage under a liability policy issued to his publisher that expressly extended coverage to authors for injury “arising out of” libel/slander/defamatory or disparaging material and invasion or infringement of privacy.
- The insurer denied coverage, arguing the underlying complaint did not plead causes of action labeled libel, defamation, slander, or invasion of privacy.
- McGinniss filed a declaratory judgment action in the Southern District of New York seeking defense-cost coverage and indemnification up to policy limits; both sides moved for summary judgment.

## Issues

1. Whether the insurer had a duty to defend McGinniss in the underlying action where the complaint alleged fraud and related torts rather than labeled defamation or privacy claims.
2. Whether coverage for injury “arising out of” defamatory/disparaging material or privacy invasion turns on the complaint’s legal labels or the factual allegations and gravamen of the claims.
3. What relief could be granted on summary judgment concerning defense costs and the scope of any indemnity obligation.

## Decision

- The court held the insurer owed McGinniss a duty to defend the underlying action.
- The court rejected a label-based coverage analysis and looked to whether the alleged injuries arose out of the type of publication-related harm described in the policy.
- McGinniss’s summary judgment motion was granted in part and denied in part, and the insurer’s motion seeking a no-coverage ruling was denied.

## Legal Principles

- An insurance duty to defend is broader than the duty to indemnify and is triggered if the complaint’s allegations potentially fall within policy coverage.
- Policy language covering injury “arising out of” specified offenses is construed to reach claims causally connected to those offenses, not only claims pleaded under matching tort names.
- In publication/media liability coverage disputes, courts assess the substance of the underlying allegations rather than strategic pleading choices to determine whether the asserted injuries fall within the insured risk.

## Conclusion

The court required the insurer to defend the author because the underlying suit’s alleged harm, though pleaded as fraud and emotional-distress theories, was tied to injuries arising from allegedly defamatory, disparaging, or privacy-infringing aspects of the publication, and coverage could not be defeated by the absence of defamation or privacy labels.


McGinniss v. Emp'rs Reinsurance Corp., 648 F. Supp. 1263 (S.D.N.Y. 1986)