On appeal from a decision in error by the Indiana Court of Appeal, UP argued in its brief that the presumptive rule in determining the scope of coverage under a Commercial General Liability Policy (“CGL”) should be “all-sums” or joint and several liability. For “long-tail” environmental claims, the burden should be on the insurer, not the insured, to determine which of multiple policies applies once one policy has been triggered. UP reminded the Court that this approach is supported by many state courts and insurance industry CGL drafting history confirms the same. In addition, UP argued that the position advanced by the carrier (that the term “those sums” present in the CGL policy at issue was distinct from “all sums”) was a distinction without a difference. Insurers may not rewrite an insurance contract after it is entered into or read terms into the contract which are not there.
- Contract Interpretation
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.