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Grouping Language in NY After GE Footnote Number Three
The determination of the number of occurrences in coverage litigation involving mass torts has significant ramifications. The definition of “occurrence” in general liability policies can be critical when determining the amounts of available coverage or which insurers ' primary or excess ' must provide that coverage. If policies include high per-occurrence deductibles or self-insured retentions, a determination that multiple claims must be treated as separate occurrences may effectively limit the amount of coverage available by requiring the policyholder to satisfy the deductible for each claim individually before ever accessing coverage. If policies provide for “first dollar coverage,” a determination that multiple claims are separate occurrences may maximize coverage at the primary level by reducing the likelihood that per-occurrence limits on coverage will apply. By contrast, a determination that multiple claims constitute a single occurrence may reduce the primary insurer's exposure while increasing the likelihood that excess insurers' policies will be attached.
In a widely anticipated 2007 decision, the New York Court of Appeals addressed whether asbestos personal injury claims constitute a single occurrence versus multiple occurrences. In Appalachian Insurance Co. v. General Electric Co., 8 N.Y.3d 162 (2007) (“GE“), the Court of Appeals reaffirmed that the number of occurrences is ordinarily determined by the “unfortunate event” test first adopted in Arthur A. Johnson Corp. v. Indemnity Insurance Co. of North America, 164 N.E.2d 704 (N.Y. 1959). The “unfortunate event” test is a fact-specific inquiry that focuses on the temporal and spatial proximity between the incidents causing the injury or loss, and whether the incidents were part of the same causal continuum, unbroken by intervening causes or factors. GE at 171-72. The GE court stated that the “unfortunate event” test does not uniformly yield a single or multiple occurrence result, but rather “[e]ach mass tort scenario must be examined separately under the [test].” Id. at 174. Nevertheless, under this test, it is unlikely that a New York court would find that multiple underlying incidents can be aggregated as a single occurrence if the incidents share few commonalities.
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.
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.
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.