Page 21 - CLT120919

NEWS DECEMBER 9, 2019 ¦ 21

mined and sold from 1948 to 2008. Throughout the Consistent with the majority of jurisdictions, the
litigation, Vanderbilt maintained that its industrial RT Vanderbilt court selected the continuous trig-
talc did not contain asbestos. ger theory to govern long-tail asbestos claims in
The court prefaced its opinion by “recogni[zing] Connecticut. The court raised three central reasons
that the unique logistical, jurisprudential, and finan- that support the application of the continuous trig-
cial challenges posed by asbestos litigation require ger theory to “extended latency, progressive disease
that courts adopt rules that, while principled and claims”: (1) the theory is most compatible with the
fair, also are pragmatic and easily administered.” prevailing understanding of asbestos related disease;
With that guidepost, the court methodically ad- (2) it likewise accounts for what is unknown about
dressed the issues before it, including: (1) the proper asbestos related disease; and (3) it provides the “fair-
trigger of coverage for asbestos claims; (2) the proper est and most efficient way to distribute indemnity
allocation methodology for periods when asbestos and defense costs among the various policies in ef-
coverage was unavailable in the marketplace; and fect over the course of ... [the] claim.”
(3) the proper application of the policies’ “pollution
exclusions” with respect to asbestos claims. Specifically, the continuous trigger theory opti-
mizes the total resources available for recovery and
“minimizes the likelihood that
Trigger of Coverage Vanderbilt filed a any one insurer will be forced
An initial step in determining declaratory judgment action to shoulder the full expense
how asbestos liability should be al- for injuries that may have pre-
located to insurance policies is to against several defendant dominantly occurred either long
identify the events that “trigger” insurance companies to before or long after its policy was
an insurance company’s defense settle insurance coverage in effect.” The continuous trigger
and indemnification obligations. disputes alleging injuries theory thus addresses not only
In an “occurrence-based” policy the medical realities of asbestos-
(as opposed to a “claims-made” from exposure to industrial related disease, but also the issues
policy), a policy is “triggered” if talc containing asbestos. that arise from the resulting
it is in effect when the bodily in- multi-claimant litigation.
jury or property damage occurred.
Though often straightforward, the
trigger of coverage inquiry ranks The Unavailability Rule
among the more hotly contested— Having settled the trigger of
and fiercely litigated—coverage issues when it arises coverage dispute, the court waded into another issue
in the context of long-tail, progressive disease claims. of first impression in Connecticut: how should risk
be allocated for periods in the coverage block when
In analyzing this issue, courts have employed sev- coverage was unavailable on the market?
eral different trigger theories. These theories include:
exposure theory, under which all policies in effect In Security Insurance Co. of Hartford v. Lumber-
during exposure to injurious or harmful conditions mens Mutual Casualty, the Connecticut Supreme
are triggered; manifestation theory, under which Court adopted a pro rata allocation method for adju-
policies in effect when the injury or damage is discov- dicating long latency loss claims involving multiple
ered or manifests itself are triggered; injury-in-fact insurance policies. Under the pro rata approach,
theory, under which policies in effect during the time defense and indemnity costs are allocated among
the injury or damage is shown to have actually taken insurance companies on the basis of their time on
place are triggered; and the more expansive continu- the risk. Under this approach, such costs would pro-
ous trigger theory, under which every policy in effect rate to the policyholder during any period when the
from the date of exposure to the date of manifestation policyholder chose to go uninsured.
qualifies as a triggered policy.
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