Number of Occurrences: Continuing Disagreement in Asbestos Cases

Where the policyholder has a high deductible or self-insured retention under its policies, a finding that multiple asbestos claims constitute a single occurrence will maximize coverage because the policyholder will be required to satisfy the deductible or retention only once as to all claims. Conversely, where an insurer is obligated to provide 'first-dollar' coverage, a finding that each discrete exposure to asbestos constitutes its own separate occurrence will maximize coverage by diminishing the likelihood that per-occurrence limits on coverage will apply. Not surprisingly, policyholders ' whose coverage programs typically feature either deductibles and retentions or first dollar coverage, but not both ' tend to adopt whatever position on the 'number of occurrences' issue will maximize coverage in the particular case, sometimes switching positions in the middle of a case. See, e.g., Hartford Accident & Indem. Co. v. Employers Ins. of Wausau, No. CGC-85-847212 (Cal. Super., San Francisco Co., filed Oct. 8, 1985, judgment Oct. 17, 1996), cited in Zuckerman & Raskoff, '10.7 (policyholder's position before trial was that dioxin spraying at 27 locations was 27 occurrences, but, at trial, it switched position and argued that the spraying was only one occurrence ' an argument with which the jury agreed).