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Occurrence Limits Under Multi-Year Policies: NJ Courts Are Changing Their Approach
In complex coverage cases involving 'long-tail' claims (such as asbestos bodily injury claims or property damage claims related to environmental pollution), decades of insurance policies can be put at issue. In many states, the policyholder's losses will be spread across the years in which the injury or property damage occurred on a proportionate basis, typically referred to as 'time on the risk' or pro rata allocation. E.g., Security Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co., 826 A.2d 107, 116 (Conn. 2003); Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 141 (Utah 1997); Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir. 1980).
In New Jersey, a continuous trigger and a modified pro rata allocation apply to cases involving progressive injury or damage over multiple years. E.g., Carter-Wallace, Inc. v. Admiral Ins. Co., 712 A.2d 1116, 1123-24 (N.J. 1998); Owens-Illinois, Inc. v. United Insurance Co., 650 A.2d 974, 995 (N.J. 1994). In Carter-Wallace, the New Jersey Supreme Court explained that the policyholder's total loss would be apportioned across years based on the 'degree of the risks transferred or retained' during each year in which injury or damage took place. Id. at 1121-22 (quoting Owens-Illinois). Thus, if a policyholder purchased more coverage in a particular year, a greater proportion of the loss may be allocated to that year than to years in which the policyholder purchased less coverage. While this approach seems straightforward, complications can arise if the policyholder did not only purchase policies with 'one-year' terms, but also purchased multi-year policies (ie, single policies providing coverage for more than 1 year and often over multiple annual periods). If the policyholder purchased multi-year policies, is the policyholder entitled to a single occurrence limit for the entire policy period, or can it claim a separate occurrence limit for each annual period that the policy was in effect?
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.