W.Va. Continuous Trigger Ruling Will Spur Allocation Fights
The West Virginia Supreme Court's recent answer to a certified question that the continuous trigger theory applies to long-tail injury claims will open the door to battles between insurers over allocation, experts say.
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Policyholder attorney Jim Murray, a partner at Blank Rome LLP in Washington, D.C., also hailed the ruling, telling Law360 the decision is interesting because it is "a repeat of an issue that has been around for decades and much of the jurisprudence in this area on the definition of occurrence and the continuous trigger theory versus manifestation was litigated in the 1980s and 1990s."
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Experts say the West Virginia high court majority's decision will inevitably lead to fights between insurers on which carrier will provide coverage and how much. That dispute won't arise in the STW case since the company was only insured by Westfield.
Blank Rome's Murray said the trigger issue needs to be determined before the question of allocation comes into play. Determining the amount of allocation, he said, varies depending on policy language and whether the jurisdiction applies an all sums or pro rata approach to the costs an insurer must pay.
Under an all-sums approach, the insurers pay the full amount of their policy proceeds. The pro rata approach requires spreading the loss over every triggered policy period, he said.
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"W.Va. Continuous Trigger Ruling Will Spur Allocation Fights," by Shane Dilworth was published in Law360 Insurance Authority on November 17, 2023.