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The Connecticut Supreme Court, in an opinion to be officially released Feb. 6, has held that the occurrence in an asbestos coverage action is each claimant’s initial exposure. The high court affirmed a trial court’s finding of multiple occurrences ( Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., Nos. 16205, 16206, 16207, Conn. Sup. Ct.). The court held that each claimant’s exposure to asbestos constitutes an “occurrence,” not Metropolitan Life Insurance Co.’s alleged failure to adequately publicize the health risks of asbestos exposure. Therefore, there are multiple occurrences. Also, the continuous exposure clause of the defendant insurers’ policies may be applied to combine into one occurrence certain claims arising from the same exposure at the same time, but does not permit lumping together thousands of exposures happening at different places and times, the court added. MetLife insured the employee health care plans of several asbestos manufacturers and had primary and umbrella policies. It has been named in thousands of lawsuits seeking recovery for asbestos-related bodily injuries resulting from Met Life’s alleged failure to warn. Met Life sued its excess carriers for a declaration that the insurers are liable to pay defense costs and all sums Met Life has paid, or may become legally obligated to pay, as damages to the underlying claims. SEPARATE OCCURRENCE A Superior Court judge granted summary judgment in favor of the carriers, holding that each claim should be treated as a separate occurrence and injuries or damages will be allocated on a pro rata basis. MetLife argued to the high court that the term “occurrence” is ambiguous, its alleged continuing failure to warn is an “occurrence,” pro rata allocation is not appropriate and the defendants are required to pay “all sums” arising from MetLife’s liabilities. Several insurers asserted that the underlying MetLife policies will not be exhausted to trigger the excess policies because the exposures of the 200,000 claimants do not constitute a single occurrence; “occurrence” is not a single failure to warn, but the exposure of each claimant to asbestos; and the continuous exposure clause does not combine 200,000 exposures at different times and places into a single occurrence. Finding the policy language unambiguous, the state Supreme Court held: “A plain reading of the policies indicates that the occurrence in this case was the exposure of the claimants to asbestos, not Metropolitan’s alleged failure to warn. Moreover, the proper interpretation of the continuous exposure clause is that it combines exposures to asbestos that occurred at the same place, at approximately the same time, resulting still, in multiple occurrences under the policy. The clause cannot be read plausibly, as Metropolitan contends, to combine hundreds of thousands of exposures that occurred under different circumstances throughout the country over a period of sixty years, into one occurrence. As we have explained, such an interpretation is inconsistent with the plain language of the policy and the purpose of a continuous exposure clause.” Metropolitan Life is represented by Jerold Oshinsky and Randy K. Paar of Dickstein Shapiro Morin & Oshinsky in Washington, D.C., Eugene R. Anderson and Mark Garbowski of Anderson Kill & Olick in New York and Francis J. Brady and Everett E. Newton of Murtha, Cullina, Richter and Pinney in Hartford, Conn. The appellees are represented by John B. Farley of Halloran & Sage in Hartford, Conn., and Steven A. Fennell, Charles G. Cole and Brian J. Leske of Steptoe & Johnson in Washington, D.C. The Insurance Environmental Litigation Association is represented by Laura A. Foggan, Daniel E. Troy and Keith U. Kuder of Wiley, Rein & Fielding in Washington, D.C., and Louis B. Blumenfeld of Cooney, Scully & Dowling in Hartford, Conn. � Copyright 2001 Mealey Publications, Inc.

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