It is becoming almost impossible to stay on top of all the significant developments affecting mass torts, class actions and environmental injury cases. Every week the combination of multiple court decisions, settlements, verdicts and government action affect the complexion of this constantly changing practice. The following summary, synthesized from multiple sources that include published court decisions, newspapers, government publications, journals and reports from lawyers across the country, highlights some of the most important events affecting mass torts during the last 6 months.

One year ago, newspaper headlines in publications such as <i>The Wall Street Journal</i> and <i>The New York Times</i> sounded the alarm that litigation involving injury or disease attributed to silica could be the "Next Asbestos." (Jonathan D. Glater, <i>Suits on Silica Being Compared to Asbestos Cases,</i> N.Y. Times, Sept. 6, 2003 at C1; Susan Warren, <i>Silicosis Suits Rise Like Dust,</i> Wall St. J., Sept. 4, 2003.) Since then, many legal and insurance industry commentators have tracked the growing number of silica claims. At the same time, the business and investment communities have taken a closer look to determine whether silica liabilities will present financial risk profiles similar to that experienced in the asbestos mass tort arena.

Forecasting mass tort claims is often based on sophisticated models applied to large, complicated databases. These models can account for such causal factors as the size of the exposed population, the dose-response rates between defendant's product and disease, and actuarial mortality rates of the exposed population. Too often, though, there is one variable that is simply extrapolated into the future at historical levels with no attempt to understand its causal influences &mdash; the filing rate (also called the propensity to sue).

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Highlights of the latest insurance cases from around the country.

Features

Frequently, insureds fail to provide timely notice and tender of defense to their general liability insurers. This can occur for a variety of reasons. First, an insured may not know that a policy covers the claims in the suit against it or, in the case of a company covered by multiple policies over numerous years, that a policy even exists. Second, an insured may knowingly choose to forego notice on the belief that the claim is frivolous, can be easily defended, or that notice will result in higher renewal premiums. Third, an insured that is named as an additional insured under an employer's or subcontractor's policy or is covered by policies issued by multiple insurers may deliberately choose to have only certain insurers represent its interests. When an insured later learns of the existence of a policy, finds the claims cannot be easily defeated, or discovers that it may be held liable, it often turns to its insurers after incurring substantial pre-tender defense costs. Regardless of the reasons for delayed notice, the repercussions for both the insured and the insurer can be significant. The issue is compounded because courts are split as to how pre-tender costs are treated, providing a spectrum of results.

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Many insureds face claims of antitrust violations, anticompetitive conduct, unfair competition, and theft of trade secrets. Too often these businesses fail to consider that they may have a very valuable asset to protect them against the expense, and any settlements or judgments, incurred in such lawsuits ' their comprehensive or commercial general liability ("CGL") insurance policies.

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