Employing Pro Rata vs. All Sums Methods and Recent Nuances in Trigger and Occurrences: Trigger Theories, Allocation Among Triggered Policies and Among Parties or Claims, What Various States Have Done with Trigger and

June 23, 2016 9:05am

Katherine E. Tammaro
Partner
Wilson Esler Moskowitz Edelman & Dickler LLP

John M. Nonna
Partner
Squire Patton Boggs

Benedict M. Lenhart
Partner
Covington & Burling LLP

Jeanine D. Clark
Partner
Margolis Edelstein

Ira J. Belcove
Partner
Butler Rubin Saltarelli & Boyd LLP

Figuring Out What Method to Employ and How to Go About Allocation

  • Pro rata vs all sums: What is it based on
  • “All sums” allocation; Pro rata; Time-on-the-risk times limits
  • “All sums”: When operating under “all sums” theory
  • ‘Equal shares’ method for allocating defense costs vs. ‘pro-rata’ method
  • What level of transparency is required by policy holders and how much do they need to disclose as to their dealings with other insurers?
  • Triple trigger vs. All sums
  • Re-allocation among insurers after an all-sums allocation

Trigger

  • Developments in “Trigger” of Coverage and developments in the law in different jurisdictions on how they apply continuous trigger
  • Use of statistical evidence to show dates of injury or damage and how this affects trigger
  • How do policies get triggered?
  • When coverage is first triggered
  • Who has the burden of proof as to when coverage begins for indemnity (as opposed to duty to defend) and what level of proof of exposure is necessary to trigger an indemnity obligation?
  • Delaying trigger dates and how it’s fought off

Occurrences

  • Number of occurrences and contractual definitions of occurrence
  • What constitutes an occurrence for purposes of any self-insured retention or policy limits