If the manufacturer sells its asbestos-containing product without a warning, does this constitute one occurrence? Or is each individual's exposure to asbestos, which results in injury, a single occurrence? These were among the issues before the Wisconsin Supreme Court when faced with certified questions from the Seventh Circuit. See Plastics Engineering Co. v. Liberty Mutual Ins. Co., No. 2008AP333-CQ (Wis. Jan. 29
Comprehensive General Liability
Burden of Proof Crucial in Determing Number of Occurrences
By Tred R. Eyerly on
A case decided by the Illinois Supreme Court demonstrates how crucial the burden of proof is in determining coverage issues. The court determined two closely related deaths constituted two occurrences under the insured landowner's comprehensive liability policy. See Addison Ins. Co. v. Fay, No. 105752 (Ill. Sup. Ct. Jan. 23, 2009). Accordingly, the policy's aggregate limit was applicable.…
California Court Allows Stacking of Multiple Policies, Follows “All Sums” Rule
By Tred R. Eyerly on
The California Court of Appeal recently issued an important case involving coverage for continuous property damage over several policy periods. Among its various rulings, the court held policy limits of multiple policies could be stacked. Further, the "all sums" rule, obligating each insurer to pay the entire claim, was applicable. See State of California v. …
No Duty to Defend or Indemnify Where Initial Manifestation of Injury Predates Policy
By Tred R. Eyerly on
Our last post summarized a Texas case (Byrne, Ltd. v. Trinity Universal Ins. Co., 2008 Tex. App. LEXIS 9041 (Tex. Ct. App. Dec. 4, 2008)), which held the insurer must defend where the underlying complaint is silent as to when the injury occurred. Today we shift gears and review a case favorable to insurers…
Insurer Must Defend Where Underlying Complaint is Silent as to When Injury Occurred
By Tred R. Eyerly on
The seminal Hawai`i case on injury in fact and trigger of coverage is Sentinel Ins. Co., Ltd. v. First Ins. Co. of Hawaii, Ltd. 76 Hawai`i 277, 875 P.2d 894 (1994), where the Hawai`i Supreme Court adopted the injury in fact trigger. Since Sentinel, however, the Hawai`i Supreme Court has not returned to the issue.…
Indiana Court Agrees with Hawaii In Finding No Assignment of Policy
By Tred R. Eyerly on
The Indiana Supreme Court recently aligned itself with the Hawaii Supreme Court in deciding an insurance policy could not be assigned without the insurer's consent. Travelers Cas. and Sur. Co. v. United States Filter Corp., 2008 Ind. LEXIS 953 (Ind. Sup. Ct. Oct. 15, 2008). The holding in Travelers is consistent with the…
Sinkhole Collapse Not Excluded as Earth Movement
By Tred R. Eyerly on
In Federated Rural Elec. Ins. Corp. v. TIG Ins. Co., 2008 U.S. App. LEXIS 20268 (9th Cir. Sept. 19, 2008), the issue was whether an excess, following form policy excluded coverage for "sinkhole collapse" under its earth movement exclusion.
TIG’s excess policy excluded "earth movement," but did not define "earth…
Texas Supreme Court Follows Hawai`i Case Law in Adopting Injury-In-Fact Trigger
By Tred R. Eyerly on
In answering a certified question from the Fifth Circuit, the Texas Supreme Court adopted the injury-in-fact trigger for a comprehensive liability policy in Don’s Building Supply Inc. v. OneBeacon Ins. Co., No. 07-0639 (Tex. Aug. 29, 2008).
The insured sold and distributed insulation which was installed in various homes from…
Hawaii Federal Court Dismisses Action on Duty to Indemnify When Underlying Cases Still Being Litigated
By Tred R. Eyerly on
In a recent case, the U.S. District Court for the District of Hawaii determined the insurer’s duty to indemnify was unripe for decision because the underlying litigation was still ongoing in state court. See Western World Ins. Co. v. The County of Hawaii, 2008 U.S. Dist. LEXIS 40118 (D. Haw. May 15…
New York Concurs with Hawaii on Coverage For Additional Insureds
By Tred R. Eyerly on
Coverage for an additional insured is typically limited to instances where the insured’s negligence causes injury. For example, in First Ins. Co. of Hawaii, Inc. v. State of Hawaii, 66 Haw. 413, 665 P.2d 648 (1983), the state was named as an additional insured in a policy issued to a contractor building…