General Liability Insurance After the EL Trigger Litigation - What is the Current State of Policy Attachment in Injury Cases?
Insurance Law Flash
On 28 March 2012, the UK Supreme Court handed down its eagerly anticipated judgment in Durham v BAI, otherwise known as the “EL Trigger Litigation”.
Much has already been written about the decision itself. In this bulletin we stand back and look at the decision in its wider context of injury cases generally, and attempt to look into the future.
The facts are by now familiar: personal representatives of employees who contracted mesothelioma after being exposed to asbestos, sought compensation from their former employers. The dispute pitted the existing Employers’ Liability (EL) insurance market against the run off market, which deviated from the historic assumption that EL policies would be triggered by reference to the dates of exposure. The Supreme Court restored the traditional position and held that “sustained” and “contracted” is synonymous with “caused”, i.e. liability would attach under the EL policies at the date when the illness was caused, upon exposure to asbestos fibres, not the subsequent date on which the disease had manifested itself.
However, the Supreme Court did not interfere with the Public Liability (PL) trigger test, whereby attachment is determined by reference to the date of tangible injury (i.e. development of the tumour), and insurers are now left with two parallel tests for attachment of mesothelioma claims under EL and PL policies.
Please click on the Download Bulletin in PDF Format link above to view the bulletin.