As Benjamin Franklin famously stated, there is nothing certain in this life but death, taxes and that New York is a pro rata allocation state.1 Well, this is true no more. In In re Viking Pump, the New York Court of Appeals applied an all sums allocation to a long-term asbestos bodily injury case, catching New York insurance practitioners by surprise and uprooting the long-held understanding that New York is a pro rata jurisdiction.2
All Sums v. Pro Rata
Nationwide, courts have long wrestled with the appropriate approach to allocating loss in insurance coverage cases concerning continuous bodily injury or property damage that takes place over many years. In trying to resolve this issue, judges face a number of significant obstacles. First, the policy language in the general liability policies that are usually implicated does not squarely address allocation, in part, because most of these occurrence-based policies were issued many years before long-term environmental damage became a widely understood phenomenon. Second, it is rarely possible to ascertain, even with the assistance of experts, what portion of the exposure causing bodily injury or of the property damage—for example, groundwater contamination—took place in a given year within the period of years at issue.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
