The Final Pieces of the Trigger and Allocation Puzzle in New York

With the flurry of major insurance decisions pertaining to long-tail tort claims in the early 1990s, practitioners appear to take New York law largely for granted when assessing trigger and allocation issues. True enough, the basics are now "well settled": an "injury in fact" trigger (<i>American Home Products Corp. v. Liberty Mut. Ins. Co.</i>, 748 F.2d 760 (2nd Cir. 1984) ("<i>AHP</i>")); an emphatic rejection of the so-called "all sums" approach to allocation (<i>Consolidated Edison Co. v. Allstate Ins. Co.</i>, 746 N.Y.S.2d 622 (N.Y. 2002)); and adoption of a <i>pro rata</i> methodology, (<i>Stonewall Insurance Company v. Asbestos Claims Management Corporation</i> 73 F.3d 1178, 1192 n.5 (2nd Cir. 1995) (citing <i>Owens-Illinois v. United Ins. Co.</i>, 138 N.J. 437 (N.J. 1994)); <i>Con Ed</i>, 746 N.Y.S.2d 622). All that said, we expect to see highly significant elaborations or refinements of the real world meaning of "injury in fact," and these open issues may have consequences for a wide range of major claims.

36 minute read March 01, 2004 at 02:58 PM

By

Robert F. Cusumano And Steve Vaccaro