{"id":898302,"date":"2020-12-08T16:32:36","date_gmt":"2020-12-08T23:32:36","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=898302"},"modified":"2020-12-08T16:32:40","modified_gmt":"2020-12-08T23:32:40","slug":"asbestos-personal-injury-claims","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/asbestos-personal-injury-claims\/","title":{"rendered":"New York Appellate Court Addresses “Trigger of Coverage” for Asbestos Claims and Other Coverage Issues"},"content":{"rendered":"\n

Paul A. Briganti | Complex Insurance Coverage Reporter<\/a><\/p>\n\n\n\n

On October 9, 2020, the New York Supreme Court, Appellate Division, Fourth Department, decided an appeal from\u00a0a trial court\u2019s 2018 summary judgment ruling\u00a0on a number of coverage issues arising out of asbestos<\/a>-related bodily injury claims against plaintiffs Carrier Corporation (Carrier) and Elliott Company (Elliott).\u00a0See Carrier Corp. v. Allstate Ins. Co.<\/em>, No. 396 CA 18-02292, Mem. & Order (N.Y. Sup. Ct. App. Div. 4th Dep\u2019t Oct. 9, 2020).<\/p>\n\n\n\n

The Fourth Department reversed the trial court\u2019s ruling that, under New York\u2019s \u201cinjury in fact trigger of coverage,\u201d injury occurs from the first date of exposure to asbestos through death or the filing of suit as a matter of law. The parties agreed that, because the policy language at issue required personal injury to take place \u201cduring the policy period,\u201d \u201cthe applicable test in determining what event constitutes personal injury sufficient to trigger coverage is injury-in-fact, \u2018which rests on when the injury, sickness, disease or disability actually began.\u2019\u201d Id. <\/em>at 3 (quoting Cont\u2019l Cas. Co. v. Rapid-American Corp.<\/em>, 609 N.E.2d 506, 511 (N.Y. 1993)). The Fourth Department concluded that, in resolving the issue, the trial court erred by relying on inapposite decisions in other cases where: (1) the parties had stipulated or otherwise not disputed that first exposure triggered coverage[1]<\/a>; or (2) the issue had not been resolved on summary judgment, but rather at trial based on expert medical evidence[2]<\/a>. The Fourth Department further explained that, even if plaintiffs here had met their initial burden on summary judgment by submitting admissible evidence that asbestos-related injury actually begins upon first exposure, the defendant-insurer\u2019s opposition \u2013 which included affidavits of medical experts contradicting that evidence and averring instead that \u201charm occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body\u2019s defense mechanisms\u201d \u2013 raised a triable issue of fact. Id. <\/em>at 4. The Fourth Department also rejected plaintiffs\u2019 argument that the defendant-insurer was collaterally estopped on the \u201ctrigger\u201d issue by a California appellate court\u2019s decision in Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co.<\/em>, 52 Cal. Rptr. 2d 690 (Cal. Ct. App. 1996). The Fourth Department reasoned that the issues litigated in the two cases were not identical because, among other things, California and New York \u201capply different substantive law in determining when asbestos-related injury occurs.\u201d Carrier<\/em>, Mem. & Order at 4.<\/p>\n\n\n\n

As to the other issues on appeal, the Fourth Department affirmed the trial court\u2019s ruling:<\/p>\n\n\n\n