October 20, 2019

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New York Applies “All Sums” Across Successive Policies in Asbestos Cases

In re Liquidation of Midland Ins. Co

A New York appellate court recently applied an “all sums” method, rather than pro rata, across successive policies for asbestos exposure losses. The court ruled that under New York law, the all sums approach was “generally required” under the 2016 Viking Pump, Inc. decision, 27 N.Y.3d 224, 260-61. In this case, the court also looked at the language of the specific excess policies at issue, which were follow-form policies that incorporated the non-cumulation clauses of the underlying policies issued by American Home Assurance Company. The court reasoned: The non-cumulation clauses plainly contemplate that multiple successive insurance policies can indemnify the insured for the same loss of occurrence… thereby rendering all sums the appropriate allocation method. Vertical exhaustion, the court stated, is consistent with an all sums allocation and required in this situation.

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Timothy Diemand Litigation Attorney Wiggin and Dana
Partner

Tim is a Partner in the Litigation Department, a member of the firm’s Executive Committee, and Co-Chair of the Insurance Practice Group. He has made his mark defending and representing clients around the country in high stakes matters such as complex insurance class actions, copyright claims against major record labels and recording artists, professional malpractice defense, catastrophic injury claims, and contractor disputes stemming from Iraq and Afghanistan war reconstruction projects.

Tim has been recognized by Chambers USA in the Commercial Litigation category,...

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Joseph Grasso Litigation Attorney Wiggin and Dana Philadelphia
Partner

Joe has spent over three decades advising and defending clients in a wide range of litigation and insurance matters, helping underwriters and other clients avoid litigation when possible and prevail when it is unavoidable. He possesses deep knowledge in particular of the marine insurance industry, as well as the London insurance market. Joe's clients describe him as pragmatic, responsive and efficient. He understands the nature of his clients' businesses and tries to add value to that business whenever possible.

Joe co-chairs Wiggin and Dana’s Insurance Practice Group. He is also a Partner in the Litigation Department and in the Art and Museum Law Practice Group.

For the last 20 years, Joe has been the principal outside counsel for the American Institute of Marine Underwriters and the Inland Marine Underwriters Association. In that role, he has been involved in legislative and regulatory monitoring, governance issues, drafting policy forms, and filing Supreme Court amicus briefs. He is adept at handling issues involving marine casualties, and is a thought leader on the future of marine insurance, including issues arising from autonomous ships and cyber risks. Joe’s extensive experience in representing insurers includes a stint in the office of the general counsel of one of the premier syndicates at Lloyd’s of London.

Joe has worked on matters involving various types of insurance and reinsurance coverages, including aviation, marine (hull, liability, cargo, and yacht), fine art and specie, energy, general liability, professional liability, and political risks.

In addition to representing underwriters, Joe represents brokers, multinational manufacturers and others involved in the supply chain. He has represented clients in cases throughout the U.S. and has personally served as an arbitrator and a mediator. 

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Michael Menapace Insurance lawyer Wiggin Dana
Partner

Michael is an insurance lawyer, primarily a litigator defending insurance companies, reinsurers, and insured parties from a wide range of claims that threaten clients’ businesses. He is also a counselor, law school professor, and litigator in areas beyond insurance.

Michael represents insurers in state and federal courts as well as in arbitrations across the country, litigating insurance disputes concerning business practices, bad faith, insurance coverage, reinsurance, premium calculations, and allocation among policies. As a general litigator, he has tried cases concerning utility...

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Robyn Gallagher Litigation lawyer Wiggin Dana
Counsel

Robyn is Counsel in Wiggin and Dana's Litigation Department.  Her litigation experience has involved a wide range of practice areas and clients, including, insurance, franchise, aviation, product liability, and education.  She has experience litigating in state and federal courts and before various government agencies and arbitral bodies.

Robyn has litigated claims under the Connecticut Product Liability Act ("CPLA"), the Connecticut Unfair Trade Practices Act ("CUTPA"), trademark infringement actions, breach of contract claims, and actions to enforce arbitration clauses. She has...

860-297-3704