The second hardcover volume of Superman: Grounded came out in December, and the very first issue, Superman # 707, contains a doozy of a legal conundrum.
Here’s the setup. Superman is in Des Moines, Iowa, saving people and basically doing his thing. He’s on his cell phone (Yes, he’s using a cell phone. No, it doesn’t make any sense for him to be doing so.) with Lois, when the chemical plant she’s at has a fire. He hears it and flies over. He puts out the fire with water from a nearby creek, but notices that the fire has caused structural damage to the plant, which is likely to collapse and possibly even reignite. So, seeing a passing truck full of steel bars, he ganks a bunch of them and uses them to shore up the building. The driver of the truck says, and I quote, “Hey, Superjerk, you can’t just take those!” Which is probably true. Superman’s response is “I assure you, sir, it’s for a good cause.” Which is as may be, but doesn’t change the fact that Superman has likely stolen at least several thousand dollars worth of goods.
I. Theft and Necessity
The first question is whether what Superman is doing is theft. The answer seems clearly to be “Yes.” He’s intentionally exerting unauthorized control over property that does not belong to him with the intention of depriving the owner of its use. That’s theft all right.
The second question is where he has any available defenses. The obvious one would be necessity, a defense to pretty much every crime except murder and rape. The following factors were identified by the Iowa Supreme Court in State v. Walton, 311 N.W.2d 113 (Iowa 1981):
(1) the harm avoided,
(2) the harm done,
(3) the defendant’s intention to avoid the greater harm,
(4) the relative value of the harm avoided and the harm done, and
(5) optional courses of action and the imminence of disaster.
The Iowa Court of Appeals looked at the necessity defense in the context of a theft-related charge in the unpublished case of State v. Pinegar, and while it declined to give an instruction on the necessity defense—it didn’t help that the defendant was high on pot and meth at the time—it implicitly recognized that the defense was available.
So while what Superman does is clearly theft, he’s probably got a good defense: necessity. The harm avoided is massive, potentially the destruction of the entire plant. The harm done is not nominal, but maybe a few grand at best. Superman was definitely acting to avoid greater harm, and the harm avoided is far greater than the harm caused. The disaster was imminent, and while there may have been some other options, he was probably going to have to steal someone’s goods to get the job done. No time to pay for it, and it needed to happen. So Superman is probably not liable for theft here.
II. Insurance and Mitigation of Damages
At the plant, Superman thinks to himself “I’ll make sure the factory’s insurance covers the cost of these steel bars.” Which is a nice thought, to be sure, but whether or not Superman wants insurance coverage for this is irrelevant. The insuring agreement either provides coverage or it doesn’t.
So here’s the question: will the factory’s insurance provide coverage for steel bars stolen by Superman and used to shore up the plant?
Clearly, this depends on the contract language, and we don’t have that in front of us. But most insurance policies are based on forms provided by ISO, which is the company that drafts what are now the industry standard forms. Insurance companies pay to have access to these forms and use them in their policies. Sometimes they modify the forms, sometimes not, but either way, the use of these forms provides valuable standardization and predictability to insurance coverage nationally and internationally. So we’re going to be assuming that the factory has a policy which is pretty close to the ISO standard insurance policy, if the reader will pardon the expression.
This is important, because in property coverage, ISO insurance policies have a provision which provides coverage for efforts taken by insureds to mitigate their damages. Say a tree falls on your house during a rain storm. If you wind up using a few pieces of plywood to cover the hole, the company will pay for the materials used. This works to the company’s advantage, because it creates an incentive for insureds to take affirmative steps to minimize the total amount of damage, and a few pieces of plywood are likely to be a lot cheaper than a few days of additional water damage.
So here’s the thing: if the factory had gone out and purchased a bunch of steel bars, there would clearly be coverage. The question is whether there is coverage for the theft of the bars. Three things come to mind. First, it wasn’t the insured that did the mitigating. It was Superman, and the insured didn’t ask him to intervene. There’s no coverage for him, generally speaking. He has no contractual relationship with the company. Second, there is generally an exclusion for “intentional bad acts,” e.g., theft. Having liability insurance will not help you if you knock over a liquor store. But third, it was Superman, not the factory, that stole the bars, so it’s Superman, not the factory, which is liable for the theft.
Now, granted, the factory could be held liable under some equitable theory. They’re certainly receiving a benefit from the bars, and the steel company is certainly out some money. So to the extent that the factory owes the steel company anything, there’s probably coverage under the mitigation of damages theory.
Superman, however, is probably on his own. Nobody asked him to intervene, and nobody at the factory authorized his actions, so it’s going to be hard to say that he was acting on the insured’s behalf and thus covered by the policy. So for the actual cost of the bars, there’s likely coverage—provided the steel company makes a claim against the factory—but any fines or other damages assessed against Superman beyond that are probably not covered. As discussed above, Superman probably has a good defense to both criminal charges and tort claims, but that doesn’t mean insurance will cover the loss.
Which is not to say that the insurance company won’t pay. Insurance companies pay claims they don’t technically owe all the time, because it’s not worth fighting over, or to keep a valued client, or for PR reasons. They generally try to negotiate on the loss, i.e., “Look, we don’t think there’s coverage here, but rather than fighting you about it, which will cost us money, how’s ten or twenty cents on the dollar?” Denying Superman coverage for being a Good Samaritan seems a bad PR move, and the loss is pretty minor compared to the damage caused by the actual fire, so they’ll probably just pony up, grateful that the whole thing didn’t go up in flames.
But what if the factory’s insurance company doesn’t pay? Luckily that doesn’t meant the steel company is out the money. It (or the trucking company) almost certainly has insurance of its own, which likely covers theft. Note that one can be insured against the risk of theft by others, but one can’t insure against claims arising from one’s own thievery. That’s one reason the steel company’s insurance would likely cover the loss but the factory’s wouldn’t.
Superman basically stayed within the law here, even though he left a bit of a mess in his wake. But that’s not even all in this issue! We’ll be talking a look at the bribery of federal regulatory officials, another topic raised in this issue, in a later post.