Prevailed in Landmark Trial Against 30 Major Insurersshoke2013
Hoke LLC represented the policyholder in the trial which was reported in Insurance Law 360 (headline below):
A Connecticut judge held Friday that neither pollution nor occupational injury exclusions eliminate indemnity coverage for policyholder’s massive asbestos liabilities, ending the second phase of a two-year trial involving more than 30 insurers.
The court’s rulings can be summarized as follows:
- The policyholder is not responsible for a pro rata share of indemnity for the post-1986 period, because no asbestos indemnity insurance was available.
- The Court rejected the insurers’ argument that, because the policyholder sold products alleged to contain asbestos through 2008, it should equitably be treated as self-insured from 1986-2008.
- For claims with an unknown date of first exposure, the default date of first exposure shall be January 1, 1962 (the average DOFE). This benefits the policyholder because of insurance gaps in earlier periods.
- Certain primary policies of the policyholder’s pre-1986 primary insurers are exhausted, even though the insurers’ historical allocation was not in strict compliance with Connecticut law. The policyholder advocated this position over the excess insurers’ objections.
- The insurers’ standard and absolute pollution exclusions are ambiguous regarding whether they exclude coverage for asbestos product liability claims and, therefore, provide coverage.
- Exclusions barring coverage for “any liability arising out of: Occupational Disease” did not bar coverage even where the plaintiffs’ alleged exposure was at their respective workplaces. This is the first known reported decision in the U.S. on this exclusion in a third-party asbestos coverage case.
- The policyholder did not make any misrepresentations when applying for coverage where the policyholder described the underlying actions as “dust claims.”