ACI is pleased to introduce its Insurance Allocation Summit - the only Allocation Conference that goes the extra mile and brings you the highest level judicial insights and maximum networking opportunities with in-house industry experts.

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ACI’s National Forum on Insurance Allocation
Frank Winston, Jr.
Steptoe & Johnson LLP
1330 Connecticut Ave., N.W.
Washington, DC 20036
fwinston@steptoe.com
(202) 429-6482
Recent Rulings and Trends in Decision Making Impacting Allocation
Laura A. Foggan
Wiley Rein LLP
1776 K St., N.W.
Washington, DC 20006
lfoggan@wileyrein.com
(202) 719-3382
Kenneth H. Frenchman
Kasowitz, Benson, Torres & Friedman LLP
1633 Broadway
New York, NY 10019
kfrenchman@kasowitz.com
(212) 506-3323
October 29 -30, 2014
Tweeting about this conference?
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Disclaimer
The views that the participants express in this session of the program are not those of the participants’ employers, their clients, or any other organization. The views expressed do not constitute legal or risk management advice. The views discussed are for educational purposes only, and are provided for use only during this session.
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Background of the Allocation Battles Traditional Long-Exposure Cases
•Asbestos
•Toxic Waste
•Lead
•Silica
•Other Allegedly Toxic Products or Conditions
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How Do Allocation Rules Apply to “non- traditional” Coverage Disputes?
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• D&O/E&O
•Sexual Abuse
•Intellectual Property
•Data Breach
•Others

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Interplay of Allocation with Applicable Trigger, Number of Occurrences and Other Coverage Issues
•Example: Travelers Cas. And Sur. Co. of America v. Netherlands Ins. Co., No. 312 Conn. 714 (Conn. July 28, 2014)
Travelers defended policyholder in civil action arising from policyholder’s role in construction of “the leak prone library at the University of Connecticut School of Law,” and sued Netherlands for pro rata share of defense costs.
Issue: What was pro rata allocation period?
Netherlands: exposure trigger = 12 months
Travelers: injury-in-fact trigger = 144 months
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Who Pays For Years Where No Insurance Is Available?
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•Lost or Missing Policies
•Insurer Bankruptcies or Insolvencies
•Exclusions
•Claims Made Insurance
•Exhaustion

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Example of a Coverage Chart
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Typical Policyholder Position:
•“All Sums” or Joint and Several Liability -- Policyholder can “pick and choose,” and can assign entire loss to any particular policy period
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Typical Insurer Position:
•“Time on the risk” -- pro rata across time of injury
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The State of Play: Judicial Decisions on Allocation State Supreme Court Decisions are Divided:
Fifteen State Supreme Courts Have Adopted Some Form of Pro Rata Allocation
Eight State Supreme Courts Have Adopted “All Sums”
Twenty-Seven States Have Not Definitively Resolved the Issue
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Is There A Trend?
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Image source: www.nashvilleonthemove.com

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State Supreme Court Allocation Decisions: 1987 - 2002
Pro Rata Allocation
•Sentinel Ins. Co. v. First Ins. Co. of Haw., Ltd., 875 P.2d 894 (Haw. 1994)
•Owens-Illinois, Inc. v. United Ins. Co., 50 A.2d 974 (N.J. 1994)
•Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724 (Minn. 1997)
•Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127 (Utah 1997)
•Public Serv. Co. of Colo. V. Wallis & Cas., 986 P.2d 924 (Colo. 1999)
•Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208 (N.Y. 2002)
All Sums Allocation
•Zurich Ins. Co. v. Raymark Indus., Inc., 514 N.E.2d 150 (Ill. 1987)
•J.H. France Refractories Co. v. Allstate Ins. Co., 626 A.2d 502 (Pa. 1993)
•Aerojet-General Corp. v. Transport Indem. Co., 948 P.2d 909 (Cal. 1997)
•Am. Nat’l Fire Ins. Co. v. B & L Trucking & Constr. Co., Inc., 951 P.2d 250 (Wash. 1998)
•Hercules Inc. v. AIU Ins. Co., 784 A.2d 481 (Del. 2001)
•Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001)
•Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 769 N.E.2d 835 (Ohio 2002)
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State Supreme Court Allocation Decisions: 2003 - Present
Pro Rata Allocation
Security Ins. Co. v. Lumbermens Mut. Cas. Co., 826 A.2d 107 (Conn. 2003)
Atchison, Topeka & Santa Fe Ry. v. Stonewall Ins. Co., 71 P.3d 1097 (Kan. 2003)
Aetna Cas. & Sur. Co. v. Commonwealth, 179 S.W.3d 830 (Ky. 2005)
EnergyNorth Natural Gas. Ins. v. Certain Underwriters at Lloyd’s, 934 A.2d 517 (N.H. 2007)
Southern Silica of La., Inc. v. Louisiana Ins. Guar. Ass’n., 979 So.2d 460 (La. 2008)
Towns v. Northern Sec. Ins. Co., 964 A.2d 1150 (Vt. 2008)
Boston Gas Co. v. Century Indem. Co., 910 N.E.2d 290 (Mass. 2009)
Dutton-Lainson Co. v. Continental Ins. Co., 779 N.W.2d 433 (Neb. 2010)
Crossman Cmtys. of N.C. v. Harleysville Mut. Ins. Co., 717 S.E.2d 589 (S.C. 2011)
All Sums Allocation
Plastics Eng’g Co. v. Liberty Mut. Ins. Co., 759 N.W.2d 613 (Wis. 2009)
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But See:
Lennar Corp. v. Markel Am. Ins. Co., 413 S.W.3d 750 (Tex. 2013)
State of California v. Continental Ins. Co., 281 P.3d 1000 (Cal. 2012)
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Allocation Across the Nation
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red = all sums (pro policyholder) blue = pro rata (pro insurer) white = unresolved
Image source: www.docs.google.com/drawings

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Sidebar: Does a state’s allocation rule indicate political leanings?
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Conclusion: No.

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Key Issues in Recent Allocation Decisions
•What Constitutes Exhaustion?
•Horizontal vs. Vertical Exhaustion
•Allocation Involving Excess Levels of Coverage
•Can Defense Costs (as opposed to Indemnity) Be Allocated, and if so, How?
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Viking Pump, Inc. v. Century Indemnity Co., 2014 WL 1305003 (Del. Super. Ct. Feb. 28, 2014)
•Delaware court applying New York law
•Held that all primary and umbrella policies have to be exhausted before any first-layer excess policies could be triggered.
•But after that, policyholders do not have to exhaust all first-layer excess policies across all years before they can tap into other second-layer excess coverage.
•Implications.
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Porter Hayden v. Nat’l Union Fire Ins. Co., 2014 WL 43506 (D. D. Md. Jan. 2, 2014)
•Found exception to Maryland’s Horizontal Exhaustion rule.
•Held that if primary insurance for a particular year has been exhausted, then excess policy for that year may be triggered and required to pay pro rata share.
•Implications.
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John Crane, Inc. v. Admiral Ins. Co., 991 N.E.2d 474 (Ill. Ct. App. 1st Dist. 2013)
•Policyholder had to demonstrate actual exhaustion of primary limits before excess coverage could be triggered.
•Implications.
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Narragansett Electric Co. v. American Home Assurance Co., 999 F. Supp. 2d 511 (S.D.N.Y. Feb. 18, 2014)
•New York court applying Massachusetts law.
•Held that each insurer on the risk for long-tail claim will be jointly and severally liable for defense costs.
•“Breaks a tie” between 2 Massachusetts District Court decisions.
•Implications.
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IMO Industries, Inc. v. Transamerica Corp., et al., No. A-6240-10T1 (N.J. Ct. App. Sept. 30, 2014)
•“The need to segregate and classify defense costs according to each individual claim would greatly complicate the already complex allocation process.”
•“Challenges among the parties as to whether particular claims were covered or uncovered would increase litigation and require additional judicial attention.”
•“Allowing excess insurers to contest coverage is not feasible for long-tail, multi-claim coverage cases and would compromise the allocation methodology mandated by the Supreme Court.”
•Implications.
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Farmers Mut. Fire Ins. Co. v. NSPLICA, 2013 WL 5311272 (N.J. Sept. 24, 2013)
•Policy limits of solvent insurers must be exhausted before state Guaranty Association would be responsible for periods of insolvent insurers.
•Policyholder bears no burden for portion of loss allocated to insolvent insurers.
•Implications.
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Auto-Owners Ins. Co. v. Travelers Cas. and Sur. Co., No. 4:12-cv-3423-RBH (D. S.C. July 22, 2014)
•No right of contribution in South Carolina.
•First insurer to acknowledge a duty to defend risks having to pay 100% of defense costs.
•Implications.
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Allocation and Accounting For Policyholder Settlements with Other Insurers
When does this issue arise?
Whenever a policyholder and one of its insurers settle in connection with a loss where other insurers may also have some responsibility – typically a loss involving either multiple responsive years of coverage, or multiple layers of coverage, or both.
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Allocation: Accounting for Policyholder Settlements With Other Insurers
•Non-Settling Insurer Incentives to Account for Settlements:
oAvoid risk of policyholder double recovery.
oAvoid exposure – particularly where it has been subject to a “spike” of its obligations -- to a greater share of a loss than warranted by contribution principles – both as a matter of law and equity, as well as policy language.
oAvoid liability before proper exhaustion of underlying insurance.
•Settling Insurer Incentives:
oMaintain finality and confidentiality of settlements.
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•Policyholder Incentives to Avoid Accounting for Settlements:
oMaximize recovery, or even obtain a recovery in excess of loss.
oAvoid the impact of exclusions, limitations or defenses applicable to some, but not all, of its coverage.
oMitigate or eliminate the impact of insurer insolvencies.
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Accounting for Settlements
Where responsibility for loss is assigned to each carrier on an individual basis, some courts hold that there is no need to account for other settlements or disclose such settlements, as no risk is presented that any carrier will be liable for more than its individual share of the loss.
•See UMC/Stamford, Inc. v. Allianz Underwriters Ins. Co., 647 A.2d 182, 190-91 (N.J. Super. 1994).
“[A]n excess carrier is entitled to a credit, not from the primary carrier’s settlement, but from the amount allocable to the primary under its policies. In other words, the excess carrier is entitled to a credit for the full amount of the primary carrier’s coverage before it is require to pay any cleanup expense. This credit has nothing to do with the details of the settlement between [the Policyholder] and the other insurers.”
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But, if settlements made were on a basis inconsistent with the ultimately governing trigger and allocation principles, then:
•A policyholder may be presenting a loss that already has been satisfied, at least in part. At a minimum, complicated reallocation issues may be presented.
oEagle-Picher Industries, Inc. v. Liberty Mut. Ins. Co. 829 F.2d 227 (1st Cir. 1987).
Because settlements between policyholder and certain insurers were accomplished on bases inconsistent with trigger rules ultimately adopted, case was remanded for further consideration by trial court. As the appeals court noted, the policyholder “should not be able to evade its responsibility to present [non- settling insurer] with individual claims simply because it chose to reach settlements with other insurers in ways inconsistent with [non-settling insurer’s] policy requirements.”
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And, if excess policy language requires loss to have been paid by underlying carriers as distinguished from being satisfied by the insured, accounting for prior settlements is critical:
•U.S. Fire Ins. Co. v. Lay, 577 F.2d 421 (7th Circuit 1978) (below limits settlement between policyholder and primary insurer discharged any obligation owed by excess insurer).
•Citigroup, Inc. v. Federal Ins. Co., 649 F.3d 367 (5th Cir. 2011) (excess policy exhaustion language unambiguously required that the primary insurer actually pay its full limit of liability before excess coverage could be triggered).
•But see: Zeig v. Massachusetts Bonding & Ins. Co. 23 F.2d 665 (2d Cir. 1928) (permitting the insured to “fill the gap” between coverage settlement and primary policy limit to trigger excess coverage even though excess policy required underlying insurance be “exhausted in the payment of claims to the full amount of the expressed limits”).
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•Under “joint and several” or “all sums” trigger theories, multiple carriers may be rendered liable for the same, entire loss, so long as each of their policies is triggered for any portion of it, and the policyholder may be entitled to select the carrier from which it seeks indemnification.
•The original and leading case on the subject, Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981), addressed the risk of double recovery presented by “all sums” by observing that, once a particular carrier was targeted, the selected carrier was entitled to seek contribution for the loss in question through the policies’ respective “other insurance” clauses.
•Keene did not address, however, how to account for situations where the policyholder has settled with one or more of its Insurers, and continued to pursue non- settling carriers.
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The Third Circuit tackled the issue of how to account for settlements in an “all sums” allocation in Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440 (3d Cir. 1996).
•In the case, the remaining non-settling defendant was an excess insurer; the policyholder had already settled with its primary and other excess carriers.
•Recognizing that preventing a “double recovery” was a fundamental indemnity principle, the Court observed that this could be accomplished by either reducing the recovery against the non-settling insurer to account for the settlements or permitting the non-settling insurer to seek contribution from the settling insurers – which it recognized would in turn lead the settling insurers to seek reimbursement from the policyholder under the terms of their settlement agreements.
•The Third Circuit, making a prediction as a matter of Pennsylvania law, opted for the reduction of recovery approach, which it termed the “apportioned share set-off rule.” Applied to a long-tail environmental claim, the recovery against the non-settling insurer had to be reduced by the allocable responsibility of the settled insurers – although the non-settling insurer would remain responsible for the balance of any judgment, up to policy limits, consistent with the “all sums” rule.
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•Applied to the “last standing carrier,” the Koppers rule effectively imposes a pro rata result on the balance of that carrier’s obligations – although still potentially subjecting the non-settling carrier to responsibility for uninsured periods for which it might not be responsible under a pure pro rata approach.
•Other courts in “all sums” jurisdictions, however, have allowed only a credit to the non-settling insurer for amounts actually received in settlement by the Policyholder from settling other insurers -- a pro tanto credit approach.
oWeyerhaeuser Co. v. Commercial Union Ins. Co., 15 P.3d 115 (Wash. 2001) (refusing any credit in connection with judgment entered against non-settling insurer where policyholder’s past costs greatly exceeded the amounts of prior policy settlements and holding that “the insured must first be fully compensated for its loss before any setoff is allowed”).
oEli Lilly Co. v. Aetna Cas. & Sur. Co., No. 49D12 0102 CP 000243 (Ind. Super. Ct. July 15, 2002) (refusing a pro rata settlement credit based in part on its finding that this would discourage early or piecemeal settlements).
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•The pro tanto credit approach – while at least avoiding a double recovery – also insulates the insured from the effect of poor settlements.
•It thus goes beyond “all sums” subject to contribution rights, and imposes costs on non-settling insurers that are in fact unrelated to the risks that they assumed (i.e., risk of policyholder’s sweetheart settlement with another insurer).
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Conversely, where a policyholder obtains more favorable settlements with certain carriers, a settlement credit based on pro rata allocation principles theoretically could leave the policyholder in a better position than would be the case if a direct credit for amounts received were applied.
•See E.R. Squibb & Sons, Inc. v. Accident and Cas. Ins. Co., 1997 WL 251548 (S.D.N.Y 1997) (settlement credit based upon coverage rules as determined in litigation notwithstanding fact that settled carriers apparently paid on a more favorable basis to the policyholder), aff’d, 241 F.3d 154, 172-73 (2d Cir. 2001) (“Under the [trial] court’s approach, the settling parties are the ones who took the risk of the settlement, and the non-settling parties are left precisely as they would have been had no settlement occurred. That hardly seems unfair.”)
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Of course, under either the pro rata or pro tanto approach, a demonstration that a policyholder has been fully compensated for its loss will preclude further recovery, consistent with basic indemnity principles.
•RSR Corp. v. International Ins. Co., 2009 WL 927527 (N.D. Tex. Mar. 23, 2009) (denying recovery against non-settling EIL carrier where prior settlement proceeds from CGL carriers exceeded policyholder’s aggregate past and future liabilities).
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Some courts have observed that, because the Koppers approach was based both on contract principles and equitable principles, a settlement credit may be unavailable where the record otherwise reveals some sort of bad faith on the part of the non-settling insurer.
•OneBeacon American Ins. Co. v. American Motorists Ins. Co., 679 F.3d 456 (6th Cir. 2012) (in suit subsequently brought by non-settling carrier against settling carrier, court noted that non-settling carrier failed to obtain settlement credit in action against Policyholder because of finding that it had acted in bad faith).
•Insurance Co. of N. Am. v. Kayser-Roth Corp., 770 A.2d 403 (R.I. 2001) (upholding limitation on settlement credits in light of sanctions imposed upon insurer precluding it from introducing evidence of other insurance).
Note that refusing to apply settlement credits as a sanction potentially does permit the “double recovery” by the policyholder that Koppers sought to prevent.
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•Koppers did not permit a non-settling insurer to seek contribution from a settled insurer – contrary to what appeared to be assumed by the Keene court.
•The case law on claims against settled insurers is mixed. Compare:
oMaryland Casualty Co. v. W.R. Grace & Co., 218 F.3d 204, 210 (2d Cir. 2000) (although ultimately dismissing contribution litigation as between insurers based upon its conclusion that no party was unjustly enriched, court observes that “[t]he notion that any settlement by which an insurer obtains a release from its insured, regardless of its terms, insulates that insurer from all contribution claims, is untenable.”); and
oOneBeacon American Ins. Co. v. American Motorists Ins. Co., 679 F.3d 456 (6th Cir. 2012) (“To grant [the non-settling insurer’s] request for equitable contribution would require the settling insurer to pay more than its fair share, because it will be liable to both [the Policyholder] (per the settlement agreement) and [the non-settling insurer].”).
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Accounting for Settlements: Duty to Defend Issues
•Courts’ approaches to a non-settling insurer’s duty to defend, usually interpreted pursuant to a broader standard, may be different from how courts account for settlements in indemnity obligations.
•However, some courts have held that a non-settling insurer should not be assessed a disproportionate share of defense obligations simply on account of a settlement between the policyholder and another insurer.
oPotomac Ins. Co. of Ill. v. Pennsylvania Mfgrs. Ass’n Ins. Co., 73 A.3d 465 (N.J. 2013) (permitting non-settling insurer to pursue contribution claim for defense costs against settled insurer, finding such action to be consistent with New Jersey pro rata coverage principles and otherwise justified by fairness considerations).
oFireman’s Fund Ins. Co. v. Maryland Cas. Co., 77 Cal. Rptr. 2ds 296 (Cal. App. 1998) (recognizing direct right of action by one insurer of common insured against settled insurer for defense costs, notwithstanding settlement between policyholder and settled insurer).
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Specific State Law Issues May Also Impact The Settlement Credit Dynamic
•By statute, Oregon law now addresses (ORS 465.475 et seq.), inter alia, the ability of a targeted carrier to seek contribution from other carriers.
•An insurer cannot fail to pay based upon the fact that other insurers have not paid.
•Furthermore, there is a rebuttable presumption that binding settlements between an insurer and insured are good-faith settlements, and once a settlement has been approved as a “good-faith settlement” by the court, upon notice to other insurers, contribution rights by other insurers are cut off.
•In addition, the statue identifies factors that are to be considered in any situation where allocation of costs between insurers is determined to be appropriate.
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•Under Illinois’ “targeted tender” doctrine – a doctrine limited to concurrent policies in Illinois and rejected in almost all other jurisdictions -- once the policyholder has identified a particular insurer to respond to a claim, the targeted insurer may be obligated to respond without assistance from other insurers, and without rights to seek contribution from other insurers on equitable grounds or otherwise.
oKajima Construction Services, Inc. v. St. Paul Fire & Marine Ins. Co., 879 N.E.2d 305 (Ill. 2007).
•Note however that, as recently recognized again by the Illinois appellate courts, the targeted tender doctrine may not be invoked in cases involving consecutive (as distinguished from concurrent) policies, thus removing it as an issue in long-tail coverage situations.
oAMCO Insurance Co. v. Cincinnati Ins. Co., 10 N.E.3d 374 (Ill. App. 2014).
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To What Extent Do A Policyholder’s Settlements Bind It In Litigation With Non- Settling Insurers?
•Can a policyholder’s settlements under certain policies bind it when it seeks to pursue coverage from other policies on a different basis? This is an area in some flux, and this question is now before the Ohio Supreme Court. Compare:
oGenCorp, Inc. v. AIU Ins. Co., 297 F. Supp. 2d 995, aff’d, 138 Fed. Appx. 732 (6th Cir. 2005). The policyholder settled with a multi-year series of primary insurers in a number of environmental clean-up sites, and then sought to trigger a single excess coverage period, based upon the claim that it could allocate all of its losses into a single period. Finding that the losses, when allocated to the primary settled coverage, did not exhaust the limits of that coverage, the court held that the policyholder could not seek indemnity from the excess insurers.
oGoodrich Corp. v. Commercial Union Ins. Co., 2008 WL 25815979 (Ohio App. 2008). An Ohio appeals court permitted an insured to trigger a single year of excess coverage, notwithstanding having settled with more than 20 years of primary coverage, and only obligated the policyholder to exhaust the coverage directly underlying the selected excess policy tower, and not policies in other years.
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•Whether the allocation of losses as provided for in primary settlements is then binding at the excess layers has now been certified as an issue to the Ohio Supreme Court in Lincoln Electric Co. v. Travelers Casualty & Surety Co., No. 2013-1088 (Ohio).
•The case is fully briefed and argued and is awaiting decision.
•The case highlights again the fact that a policyholder may have a strong incentive to settle on a wholly inconsistent basis at the primary level versus the excess level, or with one insurer versus other carriers.
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Larger Settlement Rule
•Allocation of covered and non-covered claims or parties in a settlement.
•Allocation only appropriate to the extent the non-covered claims or parties made the settlement larger. Caterpillar, Inc. v. Great Am. Ins. Co., 62 F.3d 955 (7th Cir. 1995); Safeway Stores, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 64 F.3d 1282 (9th Cir. 1995).
•Rule clearly applicable where claims against uncovered corporation cannot be independent of claim against covered directors and officers.
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•The larger settlement rule has been considered outside D&O and insurance cases.
oBank One, N.A. v. Echo Acceptance Corp., 522 F. Supp. 2d 959 (S.D. Ohio 2007) aff’d, 380 F. App’x 513 (6th Cir. 2010) (discusses larger settlement rule regarding application of indemnity agreement between bank and satellite services provider.
oClackamas County v. Midwest Emplrs. Cas. Co., 2009 U.S. Dist. LEXIS 118195, (D. Or. Oct. 8, 2009) (regarding covered and uncovered claims for a County’s workers compensation and EPL coverage).
oAcradyne Inc. v. Travelers Cas. & Sur. Co. of Am., 263 F. App’x 594 (9th Cir. Or. 2008) (a corporation was seeking indemnity for amounts paid to settle a lawsuit for an employment practices insurance policy).
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Thank you, and any questions?
Frank Winston, Jr.
fwinston@steptoe.com
(202) 429-6482
Kenneth H. Frenchman
kfrenchman@kasowitz.com
(212) 506-3323
Laura A. Foggan
lfoggan@wileyrein.com
(202) 719-3382
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