New York Appellate Court Won’t Take Insured’s Word in Asbestos Coverage Case New York Supreme Court, Appellate Division, Second Department, August 23, 2017
Duro Dyne National Corporation, Duro Dyne Corporation, and Duro Dyne Machine Corporation have been named as defendants in hundreds of lawsuits throughout the country in which the plaintiffs seek to recover damages for injuries allegedly sustained as result of exposure to asbestos contained in products manufactured and/or distributed by Duro Dyne. One of Duro Dyne’s insurers, North River, filed a lawsuit seeking a declaration that it had no duty to defend or indemnify Duro Dyne in the underlying lawsuits.
Duro Dyne moved for summary judgment, arguing that the North River policy had no exclusion for asbestos-related liability and therefore provided coverage. Duro Dyne relied on an affidavit to that effect from its president. The court rejected Duro Dyne’s argument, hold that the affidavit of Duro Dyne’s president was insufficient because he had no personal knowledge of what happened during the time the asbestos exclusion was purportedly added to the policy—he was not even working for Duro Dyne at that time.
The court also rejected Duro Dyne’s argument that its insurers waived their right to argue that Duro Dyne should pay defense costs for years it was not insured by paying defense costs in underlying lawsuits for 20 years. According to the court, several insurers had asserted that Duro Dyne should contribute toward defense and indemnity costs in those lawsuits as early as 1990. Moreover, the insurers made repeated requests for Duro Dyne to pay such costs, and they issued letters reserving their rights. Thus, the insurers’ arguments were preserved because they were diligent in making their position known to both their policyholder and the relevant courts.