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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.
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.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
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.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
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.