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A Viking on Choppy Waters
When the New York Court of Appeals issued its decision in Consolidated Edison Company v. Allstate Insurance Co. 98 N.Y.2d 208 (2002), the issue of allocating liability for continuing losses among multiple insurers consecutively liable for the loss appeared to be all but settled. Con Ed held that under policies providing coverage for “all sums” attributable to damage occurring “during the policy period,” where there was no ability to pinpoint exactly when the loss occurred, the most equitable means of apportioning the liability for the losses is in direct proportion to each insurer's time on the risk, absent policy language to the contrary. Although the Con Ed court cautioned that it had not delivered “the last word on pro-ration,” in practice New York courts have presumed that pro rata allocation will apply in continuing injury cases involving standard CGL policy language absent unusual circumstances. See, e.g., Serio v. Public Service Mut. Ins. Co., 759 N.Y.S.2d 110 (App. Div. 2nd Dep't 2003).
This approach to allocation has been called into question, however, by the recent decision of the Delaware Court of Chancery in Viking Pump, Inc. v. Century Indem. Co., 2009 WL 3297559 (Oct. 14, 2009). Purportedly applying New York law, the Viking Pump court concluded that non-cumulation and prior insurance clauses in the policies at issue effectively trumped an express limitation of coverage to injuries taking place “during the policy period.” The court reached this conclusion by applying presumptions, unprecedented in New York law, that exposure to asbestos rather than injury triggers general liability coverage and that each claimant's exposure to asbestos invariably constitutes a separate occurrence. In charting this novel route to its all-sums result, Viking Pump not only distorts New York's allocation rules in favor of contrary Delaware law, but also muddies other deep waters of New York coverage jurisprudence including the law governing trigger and number-of-occurrences.
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.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.
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.
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.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.