INSURANCE LAW: Connecticut Appellate Court addresses allocation of defense and indemnity costs and pollution exclusion in the context of asbestos litigation

An insured producer of industrial talc brings an action against its comprehensive general liability insurers, seeking a declaration that the insurers had a duty to defend and indemnify with regard to thousands of claims arising from asbestos-related injuries allegedly caused by exposure to its talc.

Following a trial, the Appellate Court holds that, as a matter of first impression, the so-called continuous trigger theory governs the pro rata allocation of defense and indemnity costs.  The court adopts the continuous trigger theory under which every policy in effect, beginning at the time of the initial asbestos exposure and extending through the latency period and up to the manifestation of asbestos-related disease, is on the risk for defense and liability costs.  The court adopts this theory following a majority of sister jurisdictions, as the rule governing long-tail asbestos claims, as it best accounts for the progressive nature of asbestos-related diseases.

The court further holds that as a matter of first impression, defense and indemnity costs would not be pro-rated to the insured for periods where insurance was unavailable.  The court additionally holds that the standard pollution exclusion does not bar coverage for the asbestos claims set forth in the underlying litigation.  The court states that consistent with the rulings from other jurisdictions, it was at best ambiguous as to whether the terminology was intended and could reasonably have been understood to extend to the inhalation or ingestion of asbestos dust, at least in small quantities in an indoor environment during everyday activities, such as manufacturing, laundering or remodeling.

R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61 (2017)