Volume 87

INSURANCE LAW UPDATE

Our firm celebrates its twentieth anniversary this month. We owe our success to the loyalty of our clients and the trust you have placed in our ability to provide high quality legal services for you and your insureds. We hope we have earned your support and have contributed to your success as well.

As we look to the future, the following is a summary of recent Court decisions that may be of interest.

CASES OF SIGNIFICANCE TO THE INSURANCE INDUSTRY

1. Tamasco v. Rodd, 2018 N.J. Super. Unpub. LEXIS 1981 – Does the listing real estate agent owe a duty of care to the buyer’s realtor for snow and ice conditions on the seller’s property?

2. RSI Bank v. The Providence Mutual Fire Insurance Company, 2018 LEXIS 997 – Is an insured’s commitment to indemnify his insurance carrier in a Pretrial Intervention proceeding on his criminal charges, enforceable in a civil suit brought by the insurance carrier against that insured?

3. In Re Accutane Litigation, 2018 WL 3636867 – What standard should be applied in evaluating the admissibility of expert testimony?

4. G.A.-H. v. K.G.G., 455 N.J. Super. 294 (App. Div. 2018) – Is there a common law duty on a defendant’s co-worker to report defendant’s sexual abuse of a minor?

5. Postiglione v. Barry, et al., 2018 N.J. Super. Unpub. LEXIS 1440 – Can emotional distress be determined as a matter of law by the trial court without reaching a fact finder or jury?

6. McDaid v. Aztec West Condominium Association, et al., 234 N.J. 130 (2018) – Is the doctrine of res ipsa loquitor applicable where elevator doors repeatedly closed causing the plaintiff’s injury?

7. Wear v. Selective Ins. Co., 455 N.J. Super. 440 (App. Div. 2018) – Was an insurer required to reimburse an insured for counsel fees and defense costs, despite a denial of coverage under a policy’s anti-concurrent/anti-sequential exclusion, and without a reservation of rights letter?

8. S.T. v. 1515 Broad St., LLC, 455 N.J. Super. 538 (App. Div. 2018) – Can a plaintiff deemed mentally incapacitated by the trial court challenge a settlement approved by the court and the court-appointed guardian ad litem?

9. Broach-Butts v. Therapeutic Alternatives, Inc., 2018 N.J.Super. LEXIS 118 – Does a private social services agency owe a duty to foster parents to exercise reasonable care in placing a child in the foster parents’ home?

10. In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Liability Litigation, No. 17-2980 – Does a plaintiff have standing to sue for an economic injury relating to the purchase of baby powder products that lacked warnings for the risk of its use?

11. Cowley v. Virtua Health, 2018 N.J. Super. LEXIS 129 – In a medical malpractice case, is an Affidavit of Merit required when nurses fail to take any action relating to the reinstallation of a nasogastric tube ordered by plaintiff’s attending physician?

12. Continental Ins. Co. v. Honeywell International, Inc., 234 N.J. 23 (2018) – Does New Jersey or Michigan law control, as to the allocation of insurance liability of a corporate defendant in an asbestos claim, where insurance coverage was no longer available in the marketplace?

PERSONAL INJURY – REAL ESTATE

Tamasco v. Rodd, et al., 2018 N.J. Super. Unpub. LEXIS 1981

Our office represented the seller’s realtor and its representatives in this personal injury action brought by the buyer’s realtor arising out of a fall on snow and ice on the seller’s premises. The plaintiff, Ms. Tamasco, was the real estate agent that represented the buyer of the property. She slipped and fell on snow/ice on the front steps exiting the property, while accompanying the buyer’s appraiser on an inspection. During the litigation, the sellers of the property settled with the plaintiff, and the case continued against the realtor defendants.

Plaintiff argued that the realtor defendants owed a duty to the buyer’s realtor to remediate the snow and ice condition on the premises, pursuant to the holding in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), arguing that they knew plaintiff would be at the property, and had access to the property. Our firm countered that Hopkins supra. was narrowly tailored to impose a duty on a real estate broker only in open-house scenarios, and unlike the injured person in Hopkins supra., the plaintiff was fully aware of the icy conditions on the steps prior to walking on them.

The trial court agreed with our arguments and entered Summary Judgment to the defendant realtors. The plaintiff appealed.

On appeal, the Appellate Division agreed and affirmed the trial court’s grant of summary judgment and dismissal of plaintiff’s Complaint against the insureds. The Court ruled that absent an express contractual agreement to such a duty, a real estate broker does not have a duty to take affirmative action to keep the property of the client-owner clear from snow and ice. The court found unpersuasive the plaintiff’s argument that insureds owed her a duty because her activities benefited them economically, pointing out that Ms. Tamasco was on the premises for her own financial benefit.

The court concluded that there was no legal or public policy basis to impose common law liability on the defendant realtor, declining to extend the “carefully tailored duty the Court imposed on real estate brokers in Hopkins supra. beyond the open house scenario.”

INSURANCE COVERAGE – ARSON – INDEMNIFICATION – RESTITUTION AS CONDITION OF PTI

RSI Bank v. The Providence Mutual Fire Insurance Company 2018 N.J. Lexis 997

The New Jersey Supreme Court reviewed a trial court’s imposition of a restitution obligation as part of the conditions admitting the defendant, Dr. George Likakis into pretrial intervention. Dr. Likakis was charged with aggravated arson and insurance fraud after a fire destroyed a building he owned. The plaintiff, RSI Bank held the mortgage on the property while Providence Mutual insured the property. Both plaintiff and Dr. Likakis submitted insurance claims to Providence Mutual. Both claims were denied. Both denials resulted in coverage litigation against Providence Mutual.

During the pendency of the civil litigation, Dr. Likakis applied for pretrial intervention on the criminal charges against him and the PTI director recommended his admission into the program. The recommendation noted that Providence Mutual did not object to Dr. Likakis’ enrollment as long as he satisfied three conditions of restitution, restitution to Providence Mutual in the amount of $11,321.89, a commitment by Dr. Likakis to protect/compensate Providence from any claims brought by RSI Bank as a result of the fire, and dismissal with prejudice of Dr. Likakis lawsuit against Providence. The prosecutor consented to these terms as did the trial court.

Dr. Likakis was then admitted into pretrial intervention and the criminal case was postponed for one year. During that time, Dr. Likakis paid Providence $11,329.89 and he dismissed his lawsuit against Providence. Dr. Likakis made no payments pursuant to the second condition of PTI relating to indemnification.

Thereafter, Providence Mutual settled its coverage dispute with RSI Bank for $353,536.90. At the same time, Providence moved for summary judgment against Dr. Likakis based upon the indemnification provision in the PTI order. In a later trial, the trial court entered judgment against Dr. Likakis and in favor of Providence Mutual in the amount of $232,568.71 which represented the amount of the settlement funds attributable to the fire less the previously paid $11,321.89.

Dr. Likakis appealed the judgment contending that the judgment could only be enforceable during the one-year period of pretrial intervention. The Appellate Division rejected this argument but the New Jersey Supreme Court later granted Dr. Likakis’ petition for Certification.

The New Jersey Supreme Court then reversed the Appellate Division and the trial court holding that the trial court cannot order restitution as a condition of PTI unless the Court conducts a hearing into whether or not the PTI applicant has the ability to make such restitution. The court further found that if a trial court orders restitution it must be for a specific amount. The court found that an order of restitution as a condition of PTI may be appropriate if it compensates the victim of an offense, but an open debt in the agreement to indemnify a victim of a criminal act for unspecified future losses is not appropriate. The court further found that since the indemnification provision in the PTI agreement was invalid the restitution condition was not properly admitted as evidence in the civil matter.

NEW JERSEY DRAWS CLOSER TO THE DAUBERT STANDARD ON EXPERT OPINION

In Re Accutane Litigation 2018 WL 3636867

The New Jersey Supreme Court recently moved closer to adopting the stricter federal standard for adopting scientific evidence as set forth in the United States Supreme Court case of Daubert v. Merrell Dow Pharmecuticals 509 U.S. 579 (1993). Under Daubert supra., the reliability of the expert opinion must be scrutinized by examining: if the opinion has been tested, whether it has been subject to peer review or publication, whether there are standards governing its application, and the level of acceptance in the scientific community.

In its ruling on August 1, 2018, in the Accutane Litigation, the New Jersey Supreme Court overturned a decision of the Appellate Division and reinstated the decision of the trial court barring the plaintiff’s expert testimony.

On appeal to the Supreme Court, the defendants argued that the Appellate Division ignored the trial court’s role in evaluating the admissibility of expert evidence. The defendants also argued that the Appellate Division failed to establish that the trial judge abused its discretion in barring the testimony of the plaintiff’s experts.

The focus of the decision revolved around the importance of epidemiological studies and the plaintiff’s experts disregard of eight of nine studies which found no significant association between Accutane and Crohn’s disease. The trial Court held a Rule 104 hearing, and concluded that the methodology of the plaintiff’s experts was flawed and barred their testimony.

The Supreme Court agreed with the trial court noting that in evaluating expert opinion, the trial court must determine whether the scientific community would accept the methodology of the expert and use the underlying facts and data relied upon by the expert. The Court found that the trial court adequately performed that function, noting that the plaintiff did not establish that the court abused its discretion.

The Court found that when an expert “does not demonstrate the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable”.

PERSONAL INJURY – DUTY TO WARN

G.A.-H. v. K.G.G., 455 N.J. Super. 294 (App. Div. 2018)

This matter arose out of an alleged sexual relationship between an EMT and a minor female who was 15 years old.

The minor plaintiff sued numerous defendants, including K.G.G., the EMT, a co-worker of K.G.G., and GEM ambulance, the employer of K.G.G..

The trial court denied plaintiff’s request for additional discovery, denied her motion to reinstate an administratively dismissed claim, and granted summary judgment in favor of certain defendants, including K.G.G.’s co-worker.

The trial court ruled that plaintiff G.A.H. had failed to present sufficient evidence to establish a prima facie claim against the K.G.G’s co-worker to warrant obtaining discovery from the local prosecutor’s office. Plaintiff had sought evidence from the prosecutor that could have shown how the co-worker became aware of K.G.G.’s activities.

The Appellate Division reversed, holding that the prosecutor’s office had consented to plaintiff’s discovery request, subject to a protective order.

More significantly, the court ruled that the co-worker was not entitled to summary judgment as a matter of law. The Court noted that while there may not be a statutory duty upon the co-worker to warn authorities of K.G.G.’s sexual misconduct with a minor, there may be a duty under the common law depending on the extent of the co-worker’s knowledge of K.G.G.’s sexual misconduct with a minor.

The Appellate Division cited J.S. v. R.T.H., 155 N.J. 330, 334 (1998), where the New Jersey Court Supreme Court held that “a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has [a] duty of care to prevent such abuse.”

In this unpublished opinion, plaintiff appealed from the grant of summary judgment to the defendants. Plaintiff was employed by a radiologist whose offices were in a commercial office building owned by defendants. While using the restroom in the subject building, plaintiff noticed that she was being filmed by defendant William Barry, who subsequently became the subject of criminal charges.

Plaintiff Postiglione filed a Complaint against numerous defendants, including Barry and the building owners claiming negligence, negligent infliction of emotional distress, intentional infliction of emotional distress and invasion of privacy. Summary judgment was granted to the defendants on the basis that plaintiff failed to present sufficient evidence of emotional distress injuries to support her negligence claims.

On appeal, plaintiff argued that the trial court erred in determining she had not established sufficiently severe emotional distress injuries to warrant submission of her case to a jury.

The Appellate Division disagreed, holding that such issues present questions of both law and fact, and the trial court can determine whether emotional distress can be found as a matter of law, and the jury can then find whether plaintiff sustained emotional distress. The opinion cited prior case law where a showing of “dramatic impact” on daily activities or ability to function was required, which was lacking in this matter.

While plaintiff’s treating psychologist had diagnosed acute stress disorder, some symptoms of adjustment disorder, residual anxiety and depression, plaintiff testified that she still used public restrooms and had not changed her daily routine or regular activities. Thus, the Appellate Division affirmed the trial court’s ruling, finding that Ms. Postiglione’s distress did not rise to the level to support a claim for negligent infliction of emotional distress, and failed to make a showing that her emotional distress was sufficiently severe.

PERSONAL INJURY – RES IPSA LOQUITOR

McDaid v. Aztec West Condominium Association, et al., 234 N.J. 130 (2018)

Plaintiff filed suit alleging that she was seriously injured upon exiting an elevator when the doors unexpectedly and repeatedly closed on her. Several days later local code officials determined that the elevator’s “electric eye,” the light beam emitter that detects presence of objects in the path of the elevator doors, and prevents the doors from closing, was malfunctioning.

Plaintiff’s expert opined that the malfunctioning electric eye caused the accident, whereas the defendant’s expert concluded that the elevator was properly maintained and plaintiff’s failure to clear the doors in a timely manner was the proximate cause of her injuries.

The trial court granted summary judgment to the defendants, and ruled that the doctrine of res ipsa loquitor was inapplicable, since malfunctioning elevator doors did not “ordinarily bespeak negligence,” and further concluded that plaintiff had failed to present competent evidence to exclude other possible causes for the malfunction of the elevator doors. The Appellate Division affirmed the trial court ruling.

The Supreme Court reversed.

In reversing the grant of summary judgment, the Supreme Court found that the inference of negligence was applicable under the doctrine of res ipsa loquitor, because ordinary experience would lead a person to conclude that elevator doors should not close on a person entering or exiting the elevator, absent the negligence by a party that owned, operated and/or maintained the elevator.

The Supreme Court also rejected the trial court’s conclusion that plaintiff was required to present evidence to exclude other possible causes for the incident, since the circumstances surrounding the accident established that it was more probable than not that the defendants’ negligence was the proximate cause of her injuries. Although the defendants would be permitted to present evidence to the jury to rebut the res ipsa loquitor inference, the plaintiff’s case was allowed to move forward based upon that inference.

INSURANCE LAW – ANTI-CONCURRENT/ANTI-SEQUENTIAL CLAUSE

Wear v. Selective Ins. Co., 455 N.J. Super. 440 (App. Div. 2018)

In a published opinion, the Appellate Division reviewed an action involving interpretation of an anti-concurrent and anti-sequential exclusion clause in an insurance policy. Plaintiff, Theresa Wear was a registered nurse, whose employer’s office was in the building owned by Woodbury Medical Center Associates, LLP. Wear was allegedly injured by exposure to certain toxic conditions, including mold through the building’s HVAC system. Selective Insurance Company, insurer of Woodbury Medical, denied coverage on the basis of its fungi or bacteria exclusion. Selective did not issue a reservation of rights letter, taking the position that the anti-concurrent and anti-sequential language in the exclusion precluded coverage even if there were other causes which may have contributed to the injury.

Woodbury Medical instituted a declaratory judgment action against Selective, seeking a declaration that Selective was required to defend and indemnify Woodbury in the underlying case. Woodbury Medical’s Motion for Summary Judgment was granted, and the trial court held that Selective had a duty to defend and ordered Selective to reimburse Woodbury Medical’s costs, including expenses and fees for the defense of Wear’s personal injury matter. Woodbury Medical’s motion to enforce litigant’s rights to pay counsel fees was granted by order dated January 9, 2015. No decision was rendered regarding Selective’s duty to indemnify.

As for the underlying case, the parties submitted the claim through arbitration, and an award of $300,000 was awarded to plaintiff Wear. By consent, a judgment of $300,000 was entered in favor of Wear against Woodbury Medical, and Woodbury Medical assigned its coverage rights to plaintiff Wear. Wear’s motion to intervene as the plaintiff in the declaratory judgment action was granted. However, the trial judge in the declaratory judgment action ruled that the settlement between Wear and Woodbury Medical was not done in good faith, which resulted in Wear appealing that decision and Selective filing a separate appeal on numerous orders.

On appeal, the Appellate Division found that the trial court failed to analyze whether the anti-concurrent and anti-sequential language in the Selective exclusion would bar coverage or at a minimum, raise a substantial question as to the existence of coverage. The Appellate Division further ruled that where an insurer did not undertake the defense of a case at the start of the litigation, the duty to defend may be converted to a duty to reimburse, pending the resolution of the coverage action.

In the absence of a finding that Selective breached its duty to defend, the case was remanded to the trial court on the issue of coverage. Nevertheless, Selective was required to pay Woodbury Medical’s counsel fees and costs but only for the costs incurred by Woodbury as a result of Selective’s non-compliance with the trial court’s January 9, 2015 order enforcing litigant’s rights. All other claims for costs and fees were deferred pending the outcome of the Declaratory Judgment action.

PERSONAL INJURY – GUARDIAN AD LITEM

S.T. v. 1515 Broad St., LLC, 2018 WL 3715815

Plaintiff, with new counsel, appealed from an Order Approving Settlement in the litigation which directed distribution of settlement proceeds. The claim originates from traumatic brain injuries that plaintiff suffered at the defendant’s premises. Plaintiff was a business invitee and was struck on the head by a falling object while exiting the property. Prior to the trial date, plaintiff’s counsel moved for the appointment of a guardian ad litem for the plaintiff, asserting that she lacked the mental capacity to understand and make decisions in the litigation. The motion was granted, allowing the guardian ad litem to make “any and all decisions regarding the ultimate disposition of this case.” Plaintiff’s counsel and guardian ad litem thereafter reached settlement with the defendants, with the trial court approving the settlement and distribution of the proceeds.

On appeal, plaintiff challenged the trial court’s appointment of the guardian ad litem, and approval of the settlement reached by the guardian ad litem, arguing that plaintiff had sufficient mental capacity to make her own decisions in the litigation. The Appellate Division rejected the plaintiff’s arguments and affirmed the trial court’s orders.

The Court first ruled that plaintiff’s counsel could make a motion to appoint a guardian ad litem, because counsel had a professional obligation where there is a concern for plaintiff’s diminished capacity to make decisions. The appointment of the guardian ad litem was affirmed by the Court, finding that such appointment was justified where the trial court had a reasonable basis for the determination of whether the plaintiff was mentally incapacitated.

The Court further ruled that if the trial court was satisfied by clear and convincing evidence that the plaintiff lacked such capacity, it could order the guardian ad litem to make those decisions on the plaintiff’s behalf and in her best interests.

Finally, the Appellate Division affirmed the trial court’s approval of the settlement, rejecting plaintiff’s argument that it could not be enforced against her because she did not agree to it. The guardian ad litem effectively stepped into the shoes of the plaintiff, and was still protected by the trial court’s power to approve the settlement.

BREACH OF DUTY – EXERCISE OF REASONABLE CARE

Broach-Butts v. Therapeutic Alternatives, Inc., 2018 WL 3826041

In an opinion awaiting publication, the Appellate Division considered a plaintiffs’ claim of breach of duty against defendant, Therapeutic Alternatives, Inc. Wanda and Ted Butts operated a therapeutic foster home, and Therapeutic Alternatives, a private social service agency, placed a troubled and dangerous child, D.M., into their home, without fully disclosing the child’s background, which included: his psychological assessments incidents of abuse and neglect by his own parents the murder of his mother multiple ill-fated placements an incident of arson involving a previous foster parent’s property assaults of other foster parents threats of self-harm and several instances of terroristic threats.

Eventually, D.M was removed from Butt’s home, but later returned to the home three times to burglarize them in the fifteen months after his removal. On the third occasion, he was confronted by Ted Butts, who died after D.M. stabbed him twenty-five (25) times.

Therapeutic Alternatives filed for summary judgment arguing that it had no duty to warn plaintiffs about D.M.’s dangerous behavior and acts of delinquency in the months following his removal from their home. The trial court granted the motion.

On appeal, the Appellate Division found that the trial court misperceived the nature of the plaintiffs’ claim, which alleged that the defendant had a duty, before D.M.’s initial placement, to exercise reasonable care by informing the plaintiffs about his history, and whether Therapeutic Alternatives breached that duty.

In reversing the trial court, the Appellate Division had no difficulty holding that a social service agency such as the defendant, owes foster parents a duty to exercise reasonable care in placing a child, and to reasonably disclose a child’s background to enable foster parents to make an informed decision whether to accept a child.

The matter was remanded to the trial court for a jury to consider whether the defendant breached its duty of care to the plaintiffs, and whether that breach of duty proximately caused the death of Mr. Butts.

Judge Sabatino filed a concurring opinion, suggesting that the State might utilize more stringent regulations, contractual provisions requiring notification, or other measures and policies to avoid future repetition of the fatal tragedy that occurred in this case.

In a decision rendered by the United States Third Circuit Court of Appeals, the Court considered an appeal of a dismissal of a plaintiff’s class action claim, where she alleged that a woman’s frequent use of Johnson & Johnson’s baby powder could lead to increased risk of developing ovarian cancer. The plaintiff did not allege that she had ovarian cancer or was otherwise injured from the use of Johnson & Johnson’s products, or that the products did not perform their intended functions. Rather, plaintiff argued that, had she been properly warned of the alleged risks of using the talcum powder, she would never have purchased the product in the first place, thus asserting an economic injury.

The district court dismissed the plaintiff’s claim based upon a lack of Article III standing, finding that plaintiff failed to plead economic injury under the theories of alternative product, premium price, or benefit of the bargain. The Third Circuit affirmed the dismissal, finding in part that the difference in value between “safe” and “unsafe” baby powder did not confer standing upon the plaintiff because she had not demonstrated that the product was unsafe to her. The court also ruled that plaintiff could not show that Johnson & Johnson sold more products than it would have had it disclosed the alleged risks of its product.

MEDICAL MALPRACTICE – NECESSITY OF AFFFIDAVIT OF MERIT

Cowley v. Virtua Health, 2018 N.J. Super. Lexis 129

Plaintiff brought a medical malpractice complaint against a hospital alleging malpractice as a result of the hospital’s failure to reinsert a nasogastric tube during her hospitalization, which led to the development of an infection. The plaintiff did not obtain an Affidavit of Merit as to the allegations of negligence against the hospital.

The hospital moved to dismiss the plaintiff’s claim due to the failure to provide the requisite Affidavit of Merit. Plaintiff opposed the defendant’s motion contending that her claim fell within the “common knowledge” exception to the Affidavit of Merit rule.

Plaintiff argued that jurors did not need expert opinion to decide whether a hospital’s failure to reinsert a dislodged nasogastric tube ordered by her physician constituted negligence. The trial court rejected the plaintiff’s contention and dismissed the case based upon the failure to provide an Affidavit of Merit.

The Appellate Division reversed the trial court’s dismissal finding that lay jurors could conclude that a hospital’s failure to take any action in response to the plaintiff’s dislodging of a nasogastric tube ordered by her physician, including failing to contact the physician that issued said order constituted negligence, thereby negating the necessity for an Affiidavit of Merit.

The court further noted that the common knowledge exception involves obvious or extreme errors. The court cautioned that the common knowledge exception should be construed narrowly in order to avoid noncompliance with the legislative objectives set forth in the affidavit of merit statute.

Although the Appellate Division reversed the trial court’s conclusion, the court, further cautioned that although a plaintiff aware of the affidavit of merit statutes requirements is free to conclude that an affidavit of merit is not necessary, if that conclusion is incorrect, and the requisite time for filing the affidavit has passed, the complaint must be dismissed.

DECLARATORY JUDGMENT – COVERAGE/ALLOCATION

Continental Ins. Co. v. Honeywell International Inc., 234 N.J. 23 (2018)

The Supreme Court considered this declaratory judgment action matter that involved questions regarding insurance coverage available to defendant Honeywell International Inc. (“Honeywell”) for asbestos claims. Third-party defendants St. Paul Fire and Marine Insurance Company (“St. Paul”) and Travelers Casualty and Surety Company (“Travelers”) appealed the Appellate Division’s affirmance of the trial court’s partial summary judgment rulings, which applied New Jersey’s allocation law, finding that Honeywell had no allocation responsibility for injuries manifested during the post-1987 time period.

The choice-of-law question involved Honeywell’s corporate predecessor, Bendix, which was incorporated in Delaware, but situated its headquarters in Michigan until 1983, when it was acquired by Honeywell, whose place of business was always in Morristown, New Jersey. None of the excess insurance policies contained a choice-of-law provision governing the allocation issue. The Supreme Court therefore affirmed the lower courts’ rulings and found New Jersey law prevailed, because this state was Honeywell’s longstanding domicile and there was a significant relationship between the case and this state.

Since it was found that New Jersey law applied, the continuous-trigger theory of liability, pursuant to Owens-Illinois v. United Ins. Co., 138 N.J. 437 (1994), and the related “unavailability exception” theory for allocation of insurance liability were both applicable. The “unavailability exception” theory requires an insured to share in an allocation of liability under the continuous-trigger doctrine, only when it foregoes purchasing available insurance. Conversely, a defendant cannot be made to share in an allocation of liability where no insurance is available in the market place. Here, for defendant Honeywell, commercial insurance coverage for asbestos became unavailable in 1987, as such coverage was eliminated from the marketplace.

Thus, the Supreme Court found that defendant Honeywell could not be responsible for any contribution toward an allocation of liability for injuries that manifested in the post-1987 time period, since there was no insurance available for Honeywell to purchase in that period. ___________________________________________________________________________________ THIS CONCLUDES OUR NEWSLETTER.

AS ALWAYS, WE EXTEND OUR THANKS FOR YOUR CONSIDERATION AND SUPPORT.