Document Type
Article
Publication Date
2026
Abstract
AI-driven platforms have the potential to inflict traditional injuries in new ways. Proprietary algorithms trained on large volumes of personal data can cause mental, emotional, and sometimes physical injuries via conversational exchanges, harmful content recommendations, and the promotion of extremist content. This "algorithmic liability" fundamentally challenges existing legal doctrines and statutory protections, thereby exposing deficiencies in current insurance coverage frameworks.
Historically, courts dismissed algorithmic liability claims early in litigation, invoking Section 230 immunity and First Amendment protections, and resisted classifying algorithmic tools as "products" for the purposes of products liability law. Recent jurisprudence, however, signals a critical turning point. On various grounds, courts are beginning to permit these algorithmic injury cases to proceed past the early procedural challenge phase of litigation.
This judicial evolution introduces considerable uncertainty for any business that operates on the internet and utilizes potentially harmful algorithms. This Article analyzes emerging forms of liability and argues that they are likely to generate insurance demand in industries that are highly visible but exhibit largely overlooked coverage needs. Litigation exposure heightens the urgent need for affirmative insurance solutions. Traditional insurance policies, including commercial general liability, businessowners', errors and omissions, and cyber, present insurance gaps because they do not typically provide coverage for mental and emotional harm, narrowly define what constitutes a triggering "occurrence," exclude intentional and sexual misconduct, and cover damages unlikely to arise with algorithmic injury claims.
This Article contributes to the scholarly discourse by advocating for the development of specialized algorithmic injury liability insurance to fill existing insurance gaps and protect a broad range of internet businesses increasingly vulnerable to algorithmic liability claims. This Article argues that tort liability and insurance maintain a largely underappreciated, interdependent relationship—one now reemerging in the context of algorithmic liability—and that the accelerating AI litigation landscape renders inevitable the demand for insurance products responsive to this evolving exposure, even if their precise contours, scope, and pricing remain uncertain.
Recommended Citation
Renee Henson,
Artificial Intelligence, Judicial Evolution, and Insurance, 106 Boston University Law Review 241
(2026).
Available at: https://scholarship.law.missouri.edu/facpubs/1381