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Substitution of 'The Sums' or 'Those Sums' for 'All Sums' Does Not Alter the Scope of Coverage
One of the major issues for the past quarter century in the litigation of coverage disputes relating to liability for alleged long-term or latent injury or damage (such as those arising from asbestos bodily injury, environmental property damage, or other mass torts) has been “allocation.” In particular, insurance companies and policyholders have disputed the scope of coverage provided by an “occurrence”-based general liability policy triggered by injury or damage during its policy period, when the same occurrence also caused harm in other policy periods.
Insurance companies typically seek to have the loss prorated over time (under one of a variety of formulae put forth in various cases by the insurance companies), and to impose on the policyholder that portion of the loss that is thereby assigned to periods where the policyholder had no applicable insurance, or where there are other problems with coverage (eg, the carriers for that period are insolvent). See, e.g., N. States Power Co. v. Fid. & Cas. Co., 523 N.W.2d 657, 662-63 (Minn. 1994) (prorating by time on the risk); Owens-Illinois, Inc. v. United Ins. Co., 650 A.2d 974, 994-95 (N.J. 1994) (prorating by time on the risk and policy limits); Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368, 1393-94 (E.D.N.Y. 1988) (prorating by measure of exposure during policy period); Conductron Corp. v. Am. Employers Ins. Co., Nos. 93-E-149, 93-C-599, slip op. at 19-22 (N.H. Super. Ct. Mar. 4, 1997) (prorating based on a detailed formula); Consol. Edison Co. of N.Y., Inc. v. Allstate Ins. Co., 774 N.E.2d 687, 695 (N.Y. 2002) (discussing different proration formulae invented by courts adopting this approach).
Policyholders, by contrast, have pointed out that the various coverage-limiting proration formulae advocated by the insurance companies in these cases are not actually found in, or supported by, the language of the insurance policies. Policyholders instead take the position that each policy is fully and independently responsible, subject to its limits, for all of the damages arising out of an occurrence that triggers the policy's coverage by causing injury or damage during its policy period, even if the same occurrence also caused harm in other periods. See, e.g., Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034, 1047-49 (D.C. Cir. 1981) (“Keene”); Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 769 N.E.2d 835, 840-42 (Ohio 2002) (“Goodyear“); Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 489-94 (Del. 2001) (“Hercules“); Am. Nat'l Fire Ins. Co. v. B & L Trucking & Constr. Co., 951 P.2d 250, 253-57 (Wash. 1998) (en banc) (“B & L Trucking“). State appellate and supreme courts are split about evenly between those holding for full and independent coverage, and those imposing one of the various proration schemes. See, e.g., Ashland, Inc. v. Aetna Cas. & Sur. Co., No. 98-340-JMH, slip op. at 2-5 (E.D. Ky. June 21, 2004) (discussing split among states and holding that proration is inconsistent with the policy language).
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.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?