Archives: Occurrences

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New York Court of Appeals Looks to Policy Language Again to Allocate Risk Proportionately to Insurers

On March 27, 2018, New York’s highest court finally brought closure to an appeal of a 2014 decision denying an insurer’s motion for partial summary judgment in its coverage litigation with its policyholder.  The Court of Appeals’ decision in Keyspan Gas East Corp. v. Munich Reinsurance America, Inc. is available here.  In affirming the Appellate … Continue Reading

Delaware Supreme Court Clarifies New York’s Injury-in-Fact Trigger of Coverage for Asbestos Losses

Whether coverage for asbestos personal injuries is triggered under an injury-in-fact theory or under an exposure theory makes a world of difference to which insurance policies must respond to the asbestos losses. Asbestos, as we know, causes asbestos-related diseases that often manifest 20 or 30-years after the initial significant exposure to asbestos fibers. Most experts … Continue Reading

New York Appeals Court Holds No Allocation of Environmental Losses to Insurers for Uninsured Years

In a case of first impression, a New York intermediate appellate court has held that the policyholder, rather than existing insurers, must be allocated  environmental cleanup costs for periods of time when environmental cleanup insurance was not available in the marketplace. The decision reverses the denial of the insurer’s partial motion for summary judgment.… Continue Reading

New York Court of Appeals Reaffirms Contract Language Controls Allocation and Exhaustion Methodologies

Long-tail claims from asbestos and other toxic exposures have plagued policyholders and their insurers for decades. Myriad issues arise when trying to determine when injuries are incurred, how policies are triggered, how liability should be allocated among multiple policies and when excess policies are required to cover the losses. None of this is easy and … Continue Reading

Timing Is Everything for Late Notice In New York

Nearly every liability policy has a provision that requires the policyholder to notify the insurer promptly of any accident or incident that might become a claim and of any lawsuit or other claim filed against the policyholder by a claimant. And many of these notice provisions are couched in language that the courts have construed … Continue Reading

Claims-Made Policies, Sophisticated Insureds and Late Notice of Claim

Everyone has chimed in on the recent New Jersey Supreme Court decision upholding a finding that an insurer need not demonstrate prejudice to disclaim coverage for late notice of a claim under a claims-made directors and officers liability policy issued to a sophisticated insured. Templo Fuente De Vida Corp., v. Nat’l Union Fire Ins. Co. of … Continue Reading

The Dichotomy Between Intent to Injure and Intentional Conduct

Most liability policies require that the claim arise from an accident or occurrence typically defined in a way that the accident or occurrence is a fortuitous event and not an intentional act. The typical automobile accident or slip and fall are accidents; nothing premeditated or planned, no intent to cause harm, no intent to drive … Continue Reading

The Unfortunate Event Test – Aggregating Incidents

Much has been written about the judicial inquiry into whether separate incidents may be aggregated as a single accident or occurrence under various formulations of accident or occurrence language in insurance policies. This issue has been litigated heavily in the asbestos context and in other latent and continuous injury settings. But sometimes looking at the issue … Continue Reading
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