Umbrella Policy’s Self-Insured Retention Does Not Apply to Excess Policies

CALIFORNIA — A coverage dispute arose from numerous claims filed, in various jurisdictions, against Deere & Company for personal injuries arising from alleged exposure to asbestos-containing brakes, clutch assemblies, and gaskets used in Deere machines. In this decision, the court addressed two issues: 1) whether Deere’s higher-layer excess policies were triggered once the first-layer excess policy limits, which were subject to a self-insured retention (SIR) paid by Deere, had been exhausted; and (2) whether the higher-layer excess insurers’ indemnity obligation extended to Deere’s defense costs …

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Default Judgments Set Aside After Insurer Discovers Policies

CALIFORNIA — Beginning in 2009, several asbestos plaintiffs filed claims against the Associated Insulation of California (the Associated). The Associated ceased operating in 1974 and did not respond to the plaintiffs’ complaints. Two of the plaintiffs notified the Associated’s alleged insurer, Fireman’s Fund, of the lawsuits. However, Fireman’s Fund could not locate any policies issued to the Associated and therefore declined to defend or indemnify Associated. The plaintiffs then sought and obtained default judgments in various amounts.The plaintiffs served notice of entry of default judgments …

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Insured’s Asbestos Claims Considered Multiple Occurrences But With Aggregate Limits

PENNSYLVANIA – The plaintiff Ohio Valley Insulating Company (OVI) filed a motion for partial summary judgment and the defendants Continental Insurance Company, Zurich American Insurance Company, and Granite State Insurance Company (collectively, Insurers) cross-moved for summary judgment. The court granted and denied in part both motions.

With regard to the first legal issue addressed by the Western District of Pennsylvania, OVI sought a declaration that various asbestos-related suits filed against it were based on multiple occurrences related to OVI’s “operations” (installation and removal of asbestos-containing …

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Policy Covered Injuries Arising From Operations During Policy Period

In a brief opinion, a New York appellate court held that an insurance policy covered injuries arising out of operations performed during the policy period, and therefore was not limited to injuries that actually occurred during the policy period. This meant that coverage was triggered under the policy by claims arising from use of spray-on asbestos fireproofing during the policy period, even though the injury did not manifest until later. The court further held that the claims did not arise from a single occurrence and …

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Excess Policies with Coverage Periods Between 12 and 24 months Provide Only One Aggregate Limit

CONNECTICUT — This case involved a dispute over the number of aggregate limits in two excess insurance policies. Ferguson was the successor in interest to Familian Corporation, a pipe and supply distributor for the plumbing and contractor industries.  Familian supplied certain products containing asbestos from the 1950’s until the 1970’s and as a result has been defending a vast number of asbestos lawsuits since 1997. Ferguson’s primary insurance policies were exhausted by 2002, and the dispute at bar was among the umbrella and excess carriers.…

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Unavailability Exception in Asbestos Coverage Dispute Affirmed by New Jersey Supreme Court

NEW JERSEY — The decision involved questions about the insurance coverage available to defendant Honeywell International, Inc. (Honeywell), a New Jersey based corporation, for thousands of bodily-injury claims premised on exposure to brake and clutch pads (friction products) containing asbestos.  The court first considered whether the law of New Jersey or Michigan (the headquarters location of Honeywell’s predecessor when the disputed excess insurance policies were issued) should control in the allocation of insurance liability among insurers for nationwide products-liability claims. Second, the court addressed whether …

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Asbestos Claims Related to Operations Ceasing Prior to Coverage Dates of Insurance Policy Deplete Aggregate Limits

The Walter E. Campbell Company (WECCO) was a company that handled, sold, installed, and removed insulation materials containing asbestos. Since the mid-80s, WECCO was subjected to numerous lawsuits from individuals alleging damages due to asbestos exposure. WECCO is now defunct.

Although many claims against WECCO remained pending, its insurers contended that they were no longer contractually obligated to defend or indemnify WECCO because their aggregate limits had been exhausted. WECCO responded by arguing that the insurers improperly allocated operations claims as completed operations claims. Unlike …

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Asbestos Cleanup Costs Covered Under Premise Pollution Liability Policy

MISSOURI — A federal district court in Missouri held that Illinois Union Insurance Company was obligated to defend and indemnify its insured, Sunflower Redevelopment, LLC, with regard to requests from a state environmental agency to investigate the possibility of contamination by asbestos and other pollutants at a site that Sunflower was remediating.

Sunflower and the U.S. Army were subject to a consent order from the Kansas Department of Health and Environment (KDHE) requiring them to remediate contamination at a former army ammunition plant. In compliance …

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All-Sums Allocation Applied to Additional Insured Coverage for Wrongful-Death Claim Based on Asbestos Exposure

CALIFORNIA — Plaintiff Polar-Mohr Maschinenvertriebsgesellschaft (Polar-Mohr) was sued by claimants seeking damages for the alleged wrongful death of their father, a former service technician for Polar-Mohr machines who died from mesothelioma due to exposure to asbestos and/or asbestos-containing products.  Polar-Mohr sought coverage from Zurich American Insurance Company as an additional insured on a policy issued by Zurich to Heidelberg Eastern, which was Polar-Mohr’s only customer during the policy period.  The issues before the court were whether Zurich’s liability to Polar-Mohr would be based on pro-rata …

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Wisconsin Federal Court Denies Insurers’ Attempt to Consolidate Coverage Actions

WISCONSIN — A federal judge in Wisconsin denied several insurers’ request that it abstain from hearing claims against them for coverage in asbestos-related related suits against Eaton Corporation. Some of the underlying claims brought against Eaton were based on personal injuries from using products produced by a company Eaton acquired by merger, Cutler-Hammer, Inc. Each of the defendant insurers had, at some time, issued an excess liability insurance policy to Cutler-Hammer.

Eaton has coverage actions pending against insurers in both Ohio and Wisconsin. The Ohio …

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