Last week, my partner, Syed Ahmad, commented on some of the biggest insurance rulings of the year in a Law360 feature article that can be found here. Among those decisions is USAA Texas Lloyd’s Co. v. Menchaca, where the Texas Supreme Court ruled that that policyholders may recover for bad faith in the absence of coverage under their policy. Ahmad also discussed the Connecticut appeals court decision in R.T. Vanderbilt Co., Inc. v. Hartford Acc. And Indem. Co., and its ruling that insurers may not force policyholders to act as an insurer during policy periods in which insurance was not available. Finally, Ahmad discussed the Third Circuit’s ruling in General Refractories Co. v. First State Insurance Co., where the court gave a broad meaning to the phrase “arising out of” such that an exclusion for claims arising out of asbestos was to be read more broadly than referring only to claims from exposure to asbestos in its raw mineral form. Significantly, however, the broad interpretation pertained only to the phrase “arising out of” and not the operative term “asbestos.”
Hunton & Williams’ insurance practice head, Walter Andrews, was quoted in a Law360 article yesterday regarding the confusion that is likely to result from a federal bankruptcy judge’s decision in Rapid-American Corp. v. Travelers Casualty and Surety Co., where the court concluded that a majority of excess insurers owe no coverage to Rapid-American Corp. for underlying asbestos claims until the company exhausts the limits of its underlying primary and excess coverage through actual payment, not just accrued liability. According the Andrews, “the public policy clearly cries out against this ruling because you want to encourage settlement and have certainty in terms of a policyholder knowing what it can do with the coverage it has.” However, “[t]his case throws that into confusion and uncertainty,” Andrews added.
Two of three of Rapid-American Corp.’s excess liability insurers do not have to respond to underlying asbestos claims unless and until all underlying coverage is exhausted by the payment of claims, says Judge Bernstein of the United States Bankruptcy Court for the Southern District of New York in a June 7, 2016 decision. Rapid-American has been involved in asbestos litigation since 1974 and settled disputes with many of its underlying insurers, but an amount sufficient to reach its excess coverage policies has not yet been paid. Rapid-American argued that it was not necessary for the primary policies’ underlying limits to be exhausted by actual payment before insurers’ excess liability coverage attaches.