Non-Cumulation and Prior Insurance Clauses: Allocating Liability Among Multiple Policies Triggered by Multi-Year Loss

Application of Non-Cumulation Clauses in Pro Rata vs. All Sums Jurisdictions

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, January 12, 2017
Recorded event now available


This CLE webinar will update insurance counsel on the latest developments in the application of non-cumulation provisions in CGL policies to deny coverage in long-tail claims. The panel will outline best practices for counsel to insureds or insurers to argue for maximizing coverage or minimizing liability.

Description

One of the most complex issues in insurance coverage disputes involves long-tail claims—such as asbestos bodily injury and environmental claims. Such claims raise complex questions of how liabilities should be allocated among numerous policy years triggered by such losses.

Insurers seek to minimize or eliminate the obligation to pay long-tail claims by arguing that the “Prior Insurance and Non-Cumulation of Liability Clause” shifts responsibility for paying for losses that trigger multiple policy years to triggered policies issued prior to their own policy year.

Policyholders argue that non-cumulation clauses are ambiguous as there are a host of unresolved coverage questions that arise in the context of attempting to apply such clauses to long-tail claims.

Listen as our authoritative panel of insurance practitioners guides you through an analysis of non-cumulation clauses in CGL policies and the various ways courts have interpreted these clauses.

Outline

  1. Background in which non-cumulation clauses are interpreted and applied
    1. Typical policy language
    2. London version of clause
    3. Triggers of coverage
    4. Allocation
  2. Court interpretations and applications of non-cumulation clauses
    1. Pro rata jurisdictions
    2. All sums jurisdictions
    3. Reduction, but not elimination of insurer’s payment obligation
  3. Applicable insurance policy interpretation principles
    1. Contra proferentem
    2. Reasonable expectations doctrine
    3. Construction of policy as a whole

Benefits

The panel will review these and other key issues:

  • How are triggers of coverage and allocation methods impacted by non-cumulation clauses?
  • How have courts in pro rata versus all sums jurisdictions differed in their interpretations and applications of non-cumulation clauses?
  • What insurance policy construction principles are applicable in interpreting non-cumulation clauses?

Faculty

Mary E. Borja, Partner
Wiley Rein, Washington, D.C.

Ms. Borja represents insurers in complex litigation and arbitration involving professional liability, general liability, crime, and property insurance coverage. She provides advice and counsel on a wide range of insurance issues, including legal malpractice and other errors and omissions claims, director and officer liability, bankruptcy, crime, construction defect, environmental liability, technology, emerging issues, and bad faith.

Sherilyn Pastor, Partner
McCarter & English, Newark, N.J.

Ms. Pastor is the Practice Leader of the firm’s Insurance Coverage Group. She has secured hundreds of millions of dollars in insurance assets for a broad range of policyholder clients. She also provides advice to clients assessing their potential risks, analyzing new insurance products and considering the adequacy of their existing insurance programs.

Christopher C. French, Visiting Assistant Professor of Law
Penn State Law School, University Park, Pa.

Professor French teaches contracts, torts, civil procedure and insurance law. He has written and published extensively in the area of insurance law. He is a former Partner with K&L Gates LLP, where he practiced in the area of commercial litigation, with a focus on insurance coverage disputes.


Recordings

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Program Materials

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First rate program. I have been practicing for over 25 years and this was the most instructive seminar I've attended in several years.

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Univ. of Pennsylvania (not Penn State)

The presentation and handouts were very informative. And it allowed me to attend a CLE without leaving the office.

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Horton Maddox & Anderson

The webinar provided a very thorough analysis of an area of the law I am currently navigating.

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Drinker Biddle & Reath

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Insurance Law Advisory Board

John Broghammer

Partner

Greve Clifford Wengel & Paras

Tred Eyerly

Director

Damon Key Leong Kupchak Hastert

John D. Green

Partner

Farella Braun + Martel

Alan P. Jacobus

Lafayette & Kumagai

William E. Kelley, Jr.

Partner

Drewry Simmons Vornehm

William O. Krekstein

Partner

Timoney Knox

Jay M. Levin

Principal and Chair of the Insurance Recovery Practice

Offit Kurman

Peter J. Mintzer

Partner

Selman Breitman

Barry S. Neuman

Partner

Whiteford Taylor Preston

Andrew G. Wanger

Partner

Clyde & Co.

Britton D. Weimer

Partner

Weimer & Weeding

Sandra I. Weishart

Partner

Hinshaw & Culbertson

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