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Number of Occurrences: Continuing Disagreement in Asbestos Cases
Recent cases have highlighted the continuing disagreement among courts on one of the highest-stakes issues in asbestos coverage litigation: determining the number of occurrences that arise from asbestos exposure. As we discussed in a previous article, Treesdale and Its Impact on Number-of-Occurrences Analysis, ICLB (Dec. 2006), the question of number of occurrences is often a results-driven coverage issue that, in many cases, controls whether an insurer will be required to pay the limits of coverage specified in the policy declarations, or multiples of that limit.
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).
Some courts invite this approach by explicitly considering the amount of the policyholder's recovery as a factor in a number-of-occurrences decision. See Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1527 (D.D.C. 1984) ('If [the policyholder] were obligated to pay a deductible on each claimant's lawsuit, [it] would be deprived of the security for which it paid. Such an interpretation would effectively emasculate the coverage [it] purchased … since no individual claim exceeds the amount of the deductible. On the other hand, the single occurrence interpretation maintains [the policyholder's] reasonable expectations.') (emphasis added); see also Uniroyal Inc. v. The Home Ins. Co., 707 F. Supp. 1368, 1386 (E.D.N.Y. 1988) ('[The insurer]'s proposal that each spraying [of Agent Orange] constituted an occurrence ' yielding … an average per occurrence net loss of around five hundred dollars ' would make the per occurrence deductibles of over $100,000 monstrously unfair to the insured. Such a construction strains the policy beyond what the parties might reasonably have intended.') (emphasis added).
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.