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Documentation Requirements: No Right for Excess Carriers to Second-Guess Primary Carriers' Settlement Payments
Since 2001, numerous insurance companies have sought to impose on asbestos liability claims so-called “Documentation Requirements” (“DRs”), seeking to limit coverage provided by its policies to those claims that meet certain criteria. Those insurance companies assert that the DRs are necessary to counter the growing number of unsubstantiated asbestos-related bodily injury claims brought against policyholders. Generally, the DRs require a policyholder to provide medical documentation and data to show each asbestos injury for each claimant, as well as provide product identification and exposure history. See Scott Moser, Mealey's Seminar, 16 Mealey's Litig. Rep. 12 (Dec. 11, 2001) (an attorney for Equitas speaking about the documentation requirements). The policyholders, on the other hand, see the DRs as unreasonable conditions to coverage that are not found anywhere in the policy language. They argue that in many cases it may be reasonable for them or for their primary carriers to settle or to have settled claims for which there is not yet fully developed information, to avoid, inter alia, increased defense costs and the possibility of a much higher judgment if the information developed is unfavorable.
Application of the DRs to claims that fall within the layer of the insurance company that is putting them forth is questionable, particularly where the insurance company is denying coverage on other grounds. Numerous courts have held that a policyholder in such a situation who settles in the face of a reasonable anticipation that the underlying claimant may be successful is not required to prove the underlying liability case against itself in order to receive coverage. See e.g., Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368, 1378-79 (E.D.N.Y. 1988); U.S. Gypsum Co. v. Admiral Ins. Co., 643 N.E.2d 1226, 1244 (Ill. App. 1995); Luria Bros. v. Alliance Assurance Co., 780 F.2d 1082, 1091 (2d Cir. 1986).
An even less justified effort by excess insurance companies, however, is the subject of this article: the claim of certain excess carriers that they can deny coverage by asserting improper exhaustion of underlying coverage if the primary carrier settled claims without meeting the excess carriers' DRs. In some cases, such arguments have been advanced even when the settlements took place years before the insurance companies put forth the DRs. The imposition of DRs in that circumstance would require a policyholder to obtain claim files and underlying defense records for thousands or tens of thousands of claims, many of which may be decades old. After requiring the massive production and analysis of these records, the excess carrier then may determine that the primary carrier “improperly” paid a claim some 30 years ago without the foresight to obtain or retain claim data to satisfy DRs that did not yet exist. And based on its own conclusion, the excess insurance company would not participate in defense or indemnity because it believed its policy layer had not yet been reached.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.