N.Y. Asbestos / “Injury in Fact”

All policies from first exposure to lawsuit triggered – no medical trial necessary

A New York supreme court, applying New York law, ruled on multiple motions for summary judgment in a coverage dispute and declared, inter alia, as a matter of law that “injury in fact” in an asbestos action occurs from the first date of exposure through death or the filing of suit.  The court also held that it was not required to conduct a medical trial to determine when personal injury occurs under the policy language.

Carrier Corporation and Elliott Company (the “policyholders”) brought an action against their primary, umbrella, and excess liability insurers from the 1950s through 1985 seeking coverage for defense costs and past and future indemnity liabilities in connection with over 30,000 underlying personal injury claims.  The policyholders filed a motion for summary judgment seeking a ruling that as a matter of law “injury in fact” in an asbestos action occurs from the fist date of alleged exposure through death or the filing of a lawsuit, and therefore, each policy in effect from the date of first exposure was triggered.  Fireman’s Fund Insurance Company (“FFIC”) opposed the policyholders’ motion and argued that when “injury in fact” occurs is a fact question that cannot be resolved as a matter of law.

In support of their motion, the policyholders provided an Affidavit of John Foley, Esq., defense counsel in the underlying asbestos actions.  In his affidavit, Mr. Foley stated that prior to settling the underlying actions, the policyholders and their insurers determined that there was credible evidence establishing the claims and the date first exposure for each claimant.  Also, according to Mr. Foley, the typical asbestos claims were supported by expert evidence that supported the finding that the claimant’s inhalation of asbestos caused immediate or almost immediate sub-clinical injury and started an injurious process that continued for years or decades until diagnosis.

Under New York law, “personal injury” for occurrence-based insurance purposes requires that an “injury in fact” occurred during the policy period.  This requirement is satisfied by any bodily injury that occurs during the policy period, including subclinical damage that is unknown, undiagnosed and undiagnosable until years after it occurs.  An insured is required to demonstrate actual damage or injury during the policy period.

FFIC argued that medical evidence establishing a continuing injury needed to be presented at trial.  However, the court disagreed:  “In light of the number of cases which have found that the injury continues from first exposure through assertion of claim or death, and the lack of any cases finding to the contrary, and the medical and scientific evidence submitted by the [policyholders] in support of the instant motion, the Court accepts as a matter of law that ‘injury in fact’ in an asbestos action occurs from the first date of alleged exposure through death or the filing of suit, thus triggering each policy in effect from the date of first claimed exposure.”  The court noted that as a result of its decision, the parties would avoid an expensive and lengthy presentation of medical and scientific evidence on the issue of when “personal injury” occurs under the policy language and avoid a series of mini-trials which would otherwise be necessary to determine when each underlying claimant’s personal injury occurred.  Carrier Corp. v. The Travelers Indem. Co., Case Index No. 2005-EF-7032; RJI No. 33-06-4408 (Sup. Ct. N. Y. Onondaga, County Nov. 21, 2018).