In the case of indivisible long-tail injury claims that have a latent manifest, the “all sums” approach protects the policyholder from litigating with every insurer that may have liability. In contrast, the “pro rata” approach is a pro-insurer approach that causes more litigation and potentially allows responsible insurers to escape coverage. The “availability rule” serves fundamental principles of fairness because it allocates indivisible liability proportionally among insurers based on their time on the risk, treating the policyholder as a de-facto insurer in any year when it chose to self-insure but not when the policyholder made no such choice because insurance was not available. Under New York precedent, “all-sums” allocation applies when the policy language contemplates that multiple successive insurance policies can indemnify the insured for the same loss. (See Viking Pump).
- Unavailability of Insurance
- New York
United Policyholder’s amicus brief discusses important issues of equitable contribution and allocation between primary and excess insurers, including explaining how one proposed equitable contribution scheme would impact policyholder rights and the future availability of funds in the context of asbestos-related liabilities.
Insurance companies should not be allowed to profit from inconsistent coverage positions. / Allocation
Coverage for continuous injury when multiple policies cover the loss. The Court should adopt the position that joint and several liability should be imposed against insurance companies for damages arising from an ongoing injury. The only way the policyholder can enjoy the security it purchased…
- Joint and Several Liability
The Court should affirm its decision to allow joint and several liability where the loss may be covered by several insurance policies and not allow the insurer’s pro-rata allocation scheme which puts the burden on insureds.