Won Trial Appellate Court Which Involved 67 Asbestos Cases

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Overview

SmithAmundsen’s appellate and coverage attorneys represented one of the excess insurers in this case which went to the appellate court after a bench trial was held and the trial court found that the insured had not proven that 67 asbestos settlements and/or judgments had exhausted the annual primary policies’ limits between 1944 and 2001.  The appellate court held that horizontal exhaustion required the policyholder to prove that all of the primary policies limits, as written prior to a 2004 buy-back agreement between the policyholder and the primary insurer, were exhausted before the umbrella or excess carriers were required to contribute to any settlements or judgments.  Although umbrella or excess policies did not all contain “all sums” language, the court followed the Illinois Supreme Court decision in Zurich Ins. Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 514 N.E.2d 150 (1987), and held that where coverage for asbestos-related injury claims is triggered by bodily injury or sickness or disease, all triggered policies are jointly and severally liable.  Further, the court held that for purposes of exhaustion of primary coverage, Raymark did not require that the insured prove all three triggers; instead, coverage was triggered upon proof of exposure, sickness, or disease, thereby entitling the insured to a new trial on exhaustion of the primary policy limits.  Finally, regardless of the medical evidence since Raymark, the appellate court followed Raymark’s holding that bodily injury takes place upon exposure to asbestos, and an insurer that is on the risk when the claimant is exposed must provide coverage. 

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