The crop of pivotal commercial general liability rulings looks bountiful for the second half of 2023, with both state and federal appellate courts likely to hand out important opinions on coverage for opioid suits, Superstorm Sandy damage and a take-home asbestos injury settlement.
Both the Ninth and Eleventh circuits will tackle coverage for opioid-related suits, while the Second Circuit will review if a New York federal judge correctly considered extrinsic evidence before a jury determined a Chubb unit has no duty to cover almost $50 million in damages a chocolatier sustained from Sandy. Meanwhile, the South Carolina Supreme Court is going to examine whether a carrier should be required to contribute to the settlement of a take-home asbestos injury suit.
Chocolatier Wants New Sandy Damages
Insurance recovery attorney Dennis Artese of Anderson Kill PC told Law360 the case is unique because it involves "anti-concurrent causation" in language in both a coverage-granting provision and a flood exclusion. Anti-concurrent causation, or ACC, language typically appears only in exclusionary clauses, and purports to provide that a loss is not covered if it results from both a covered and noncovered cause.
"This case cuts against that well-settled legal principle," he said. "The concern is that the insurance industry may argue in future cases that the existence of an ambiguity is not enough to construe the policy in favor of coverage, a standard that is not in line with decades of jurisprudence."
S.C. Justices Tackle "Take-Home" Asbestos Settlement Coverage
Policyholder attorney Robert M. Horkovich of Anderson Kill PC told Law360 said the appeals court was
"apparently slapping the insurance company's hands" for engaging in gamesmanship.
He said the case is important because talc-asbestos cases such as those filed by Rollins as well as suits over cancer caused by talc represent the next generation of asbestos litigation.
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