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Massachusetts Court Adopts Pro Rata Liability Allocation
In what can only be described as a major victory for insurers, the Massachusetts Supreme Judicial Court (“SJC”) ' the state's highest court ' responded to certified questions from the United States Court of Appeals for the First Circuit by rejecting a joint and several (also known as “all sums”) approach to liability allocation for progressive injuries, and instead adopting a pro rata method of liability allocation. Boston Gas Co. v. Century Indem. Co., SJC-10246, slip op. at 2 (Mass. Jul. 24, 2009). In addition, the SJC adopted the time-on-the-risk method of prorating liability in the “absence of evidence more closely approximating the actual distribution of property damage.” Id. Finally, the SJC concluded that an insured must bear a pro rata share of the losses for all time periods where it was self-insured.
The Case
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