The Effect of Settlements upon Settlements

Insurance coverage disputes regarding long-tail claims, such as toxic tort or environmental damage claims, often lead to protracted and expensive litigation. Dollars spent on that litigation often would be better spent in compensating the underlying case plaintiffs, such as victims of toxic torts, or in cleaning the environment. Further, such litigation is a substantial drain on already overburdened judicial resources. In resolving insurance coverage disputes, therefore, an important consideration should be whether a particular approach will encourage or discourage settlement of future disputes, while being fair to the litigants. An emerging issue that can have a significant impact on whether future coverage disputes will be settled or litigated to judgment is whether a non-settling insurer will receive a credit based upon settlements an insured has reached with other insurers in regard to the same occurrence and, if so, how that credit will be calculated. At least three approaches have begun to emerge. The approach chosen will have a substantial impact on whether litigants are treated fairly and whether settlement of future disputes will be encouraged or discouraged.