“Consent-to-Settle” Provision Applies to Settlement Made Before Primary Exhausted The Sixth Circuit, applying Michigan law, reversed the district court and held that excess insurer TIG Insurance Company (“TIG”) had no coverage obligation to Stryker Corporation (“Stryker”) for certain settlements because Stryker had not received TIG’s written consent for the settlements as unambiguously required under the TIG policy.  The appellate court... Read More

Approves 100% Allocation to Non-Settling Insurer and Denies Equitable Contribution against Settling Insurers The Bankruptcy Court for the Northern District of California, applying Illinois law, denied an insurer’s motion for summary judgment finding the insurer’s interpretation of the bankruptcy plan incorrect.  The court held that an “allocated percentage” of 100% is a valid allocation and that there was no basis... Read More

Finds expert testimony insufficient and “shallow”. On September 2, 2016, a New Jersey Judge granted Johnson & Johnson and Imerys Talc America, Inc.’s motions to bar expert testimony in two lawsuits in which the plaintiffs each alleged that their ovarian cancer was caused by using Johnson & Johnson Baby Powder. The Judge found many deficiencies in the testimony of the... Read More

After a three week trial, on October 27, 2016, a St. Louis, Missouri jury found Johnson & Johnson and Imerys Talc America, Inc. liable for a plaintiff’s ovarian cancer allegedly caused by talc and awarded the plaintiff $70,075,000.  The allegations were that talc itself, and not asbestos-contaminated talc, caused the alleged injuries.  The jury awarded $575,000 in economic damages... Read More

Defendant apportioned 30% liability. On October 19, 2016, after a six week trial, a California Superior Court of Los Angeles County jury found Whittaker Clark & Daniels 30% liable for the plaintiffs’ injuries related to Philip Depoian’s mesothelioma. Depoian’s mesothelioma was allegedly caused by exposure to cosmetic talc that was allegedly contaminated with asbestos.  The jury’s economic damages award of... Read More

“Commencing During The Policy Period” Ambiguous.  Property Damage May be Triggered by Each Instance of New Damage. An Illinois federal district court, applying Illinois law, held that a policy provision covering “loss or damage commencing [d]uring the policy period” was ambiguous and may be triggered “by each identifiable instance of new damage”; the provision does not require that initial... Read More

Channeling Injunction Does Not Bar Claims Of Former W.R. Grace Employees Against Insurer. A Delaware bankruptcy court held that the asbestos personal injury channeling injunction entered in W.R. Grace & Company’s (“W.R. Grace”) Chapter 11 proceedings does not bar two former employees from asserting claims in state court against Maryland Casualty Company (“MCC”), W.R. Grace’s workers’ compensation insurer from 1962... Read More

No Coverage Because Fraudulent Email Inducing the Transfer of Funds Was Only Part of a Larger Scheme to Deceive Policyholder. The Fifth Circuit, applying Texas law, held that a “Computer Fraud” provision did not cover the loss associated with Apache Corporation’s unwitting transfer of millions of dollars to an imposter vendor, even though the crime was based in part on... Read More

Effort To Reform Policy To Add Oil Refinery Owner to Transfer Endorsement Rejected As Insufficient and Untimely. The Fifth Circuit, applying Texas law, rejected an oil refinery’s effort to be added as an additional insured under a pollution policy, finding the oil refinery failed to state a claim for reformation and, even if it stated such a claim, the claim... Read More

CT federal court rejects effort to convert “other insurance” clause into a non-cumulation clause. In yet another recent case addressing an insurer’s attempts to limit its liability in long-tail cases by seeking the application of so-called “non-cum” clauses, a Connecticut federal district court judge applying California law refused to treat an “other insurance” clause in a National Union / AIG... Read More