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In defending silicosis claim lawsuits, defendants must try to demonstrate the knowledge and sophistication of the plaintiff. This can be challenging, however, when the plaintiff disclaims knowledge or claims reliance on specific information from his or her employer or suppliers. The "sophisticated user" defense generally focuses on the knowledge and sophistication of the employer as a corporate entity regarding the industry as a whole and the product or product's inherent hazards specifically.

As anticipated, Judge Janis Graham Jack's written Order 29 in the <i>In re Silica Products Liability Litigation</i> multidistrict litigation ("MDL") was far from complimentary to the plaintiff bar. The order, dated June 30, addresses subject matter jurisdiction, admissibility of evidence and sanctions for some lawyers Judge Jack basically deemed charlatans. The order followed the defendants' presentation of evidence during a 3-day hearing in February in the U.S. District Court for the Southern District of Texas, Corpus Christi Division, which showed that many of the claims under investigation were brought on the basis of faulty or nearly nonexistent medical diagnoses.

After seeing the effects of asbestos litigation on the courts and the economy &mdash; such as bankruptcy filings and the economic fallout that ensues &mdash; few want to see a repeat with silica litigation. On the federal level, a comprehensive bill has been introduced to address the current and future handling of asbestos, silica and mixed dust claims. The original proposal sought to create a $140 billion national trust fund for asbestos claims. A subsequent draft, which came out of committee May 26, added silica and mixed dust claims to the agenda.

Highlights of the latest silica news from around the country.

Brent Coon sees the future of lung litigation, and it's far beyond his Beaumont, TX, headquarters. Right now, he's hoping it's in San Francisco. "California's just another expansion in our drive to become a one-stop shop," the plaintiff lawyer said recently as he prepared for his June 1 takeover of another Texas firm's San Francisco office and caseload. Coon's presence ' and the recent filing of about 35 suits by the East Bay, CA, plaintiff firm Gwilliam, Ivary, Chiosso, Cavalli &amp; Brewer in conjunction with a Texas firm ' are the latest signals that California is the Texans' testing ground for silicosis lawsuits.

Claims involving a failure to warn are often centered around what a reasonable manufacturer or supplier should have foreseen was necessary to avoid creating an unreasonable risk of harm. If a supplier is deemed to have a duty to warn, the duty can be fulfilled by calling the hazards of the product directly to the attention of the eventual user; for example, through product labeling. <i>Greene v. A.P. Products, Ltd.</i>, 691 N.W.2d 38 (Mich.App., 2004). However, when, as is often the case, a product passes through the hands of multiple intermediaries between the supplier and the eventual user, the situation becomes murkier, and it becomes unclear who should shoulder the burden of the duty to warn. This is where the sophisticated user defense comes in.

Liability insurance policies typically require the insured to notify the insurance company "as soon as practicable" or "as soon as possible" of a suit or a potentially covered claim. Compliance with these "notice conditions" is often held to be a condition precedent to coverage under the policy, such that if the insured unreasonably delays notifying its carrier of a suit or claim, the insurer may be relieved of its duties under the policy. The purpose of these provisions is to protect the insurer by giving it adequate time to investigate the claim, control the litigation, posture the case for settlement, set reserves, and prevent fraud. <i>Sybron Transition Corp. v. Sec. Ins. Co. of Hartford</i>, 107 F.3d 1250, 1257 (7th Cir. 1997). But there is a cautionary note for insurers because the duty to provide prompt notice is not limited to the insured. Under limited circumstances, an insurer may be estopped from relying upon a coverage defense, such as late notice or an applicable exclusion from coverage, if it unreasonably delays denying coverage under the policy because, just like the insurer, the insured can potentially suffer prejudice from untimely communications. <i>Incorporated Village of Pleasantville v. Calvert Ins. Co.</i>, 612 N.Y.S.2d 441 (N.Y. App. Div. 1994); <i>Central Mut. Ins. Co. v. Kammerling</i>, 571 N.E.2d 806 (Ill. App. Ct. 1991). This article discusses the elements of estoppel barring coverage defenses, application of the defense in special circumstances involving settlement of the underlying claim, and what an insurer should do if it is uncertain as to whether coverage actually exists under the policy.

Highlights of the latest insurance cases from around the country.

The Texas Supreme Court unanimously has held that an insurer may recover from its own insured monies advanced by the insurer to settle an uncovered liability claim ' though the justices sharply divided on the rationale. The case, <i>Excess Underwriters at Lloyd's, London v. Frank's Casing Crew &amp; Rental Tools, Inc.</i>, No. 02-0730 (Tex. May 27, 2005), picks up the cudgels on this issue from the California Supreme Court's opinion in <i>Blue Ridge Ins. Co. v. Jacobsen</i>, 22 P.3d 313 (Cal. 2001) and seemingly abandons the prior decision in <i>Texas Ass'n of Counties County Gov't Risk Mgmt. Pool v. Matagorda County</i>, 52 S.W.3d 128 (Tex. 2000), which had cast substantial doubt on the viability of an insurer-recoupment claim, at the time seeming to bring Texas in line with Massachusetts on this issue. <i>See Med. Malpractice Joint Underwriting Ass'n of Massa-chusetts v. Goldberg</i>, 680 N.E.2d 1121 (Mass. 1997). <i>Frank's Casing</i> also parts company with the recent holding of the Illinois Supreme Court in <i>General Agents Insurance Company Of America, Inc. v. Midwest Sporting Goods Company</i>, 828 N.E.2d 1092 (Ill. March 24, 2005), which had rejected a carrier's claim for recoupment of defense costs, though on a basis that would bar recoupment of settlement or indemnity payments, too.

Allocation often is a key issue in insurance coverage cases where courts have found that long-term bodily injury or environmental contamination has taken place over many years. Occurrence-based policies typically provide coverage only for damages from injury taking place during the policy period. In many cases, courts have found it impossible to determine as a matter of fact precisely when injury took place or how much injury took place in any given period. They have thus presumed that injury took place over the entire period &mdash; often a very lengthy period &mdash; during which it may have taken place (<i>eg</i>, from first "exposure" until diagnosis of the injury or discovery of the contamination).