Hoke LLC Prevails in Landmark Case That Establishes Connecticut Law for Long-Tail Asbestos Claims

As a matter of first impression,” CT Appellate Court applies “continuous trigger” and the “availability rule,” while declining to apply pollution exclusions.

Last week a Connecticut appeals court, in a 250 page opinion following a six hour appellate hearing, established state precedent on multiple long-tail coverage issues that were  “matters of first impression” in Connecticut.  Hoke LLC represented the policyholder, Vanderbilt Minerals LLC, in both the trial and the appeal with Connecticut local counsel, Murtha Cullina LLP.

The court applied the “continuous trigger of coverage” for asbestos bodily injury claims. It further found that Vanderbilt does not have to share in costs tied to asbestos bodily injury claims for years it was unable to buy insurance (a.k.a the “Availability Rule”).  The court also agreed with Vanderbilt that standard pollution exclusions did not bar coverage for the underlying asbestos bodily injury claims.  The court’s major rulings can be summarized as follows:

  • In an issue of first impression in Connecticut, agreed with Vanderbilt that “continuous trigger” applies to asbestos bodily injury claims;
  • Agreed with Vanderbilt that the trial court correctly rejected the insurers’ attempt to introduce expert medical testimony establishing that bodily injury does not occur until within 5-10 years of manifestation of disease;
  • In an issue of first impression in Connecticut, agreed with Vanderbilt that the “availability rule” should be applied, limiting the policyholder’s pro rata responsibility to those periods in which it intentionally self-insured;
  • Agreed with Vanderbilt that there should not be an “equitable exception” to the “availability rule” based on Vanderbilt’s continued sale of allegedly asbestos-containing talc until 2008. In agreeing with Vanderbilt, the appellate court noted the trial court’s factual conclusion that Vanderbilt had a good faith basis to continue to sell talc until 2008, because Vanderbilt fervently submits that its talc does not contain asbestos and the federal government agrees;
  • Agreed with Vanderbilt that Vanderbilt cannot be deemed self-insured for defense or indemnity for any policy period after 1986;
  • In an issue of first impression in Connecticut, agreed with Vanderbilt that the standard pollution exclusion unambiguously does not bar coverage for underlying asbestos bodily injury actions; and
  • In an issue of first impression, agreed with certain insurers that a broadly worded “occupational disease exclusion” contained in some of the pre-1986 policies bars coverage for underlying actions that solely allege exposure to a Vanderbilt product in the workplace.

A link to the full opinion can be obtained at http://jud.ct.gov/external/supapp/Cases/AROap/AP171/171AP467.pdf.  The case is R.T. Vanderbilt Company, Inc. v. The Hartford Accident & Indemnity Company, (Ct. Appellate Court, March 7, 2017).