Stonewall Ins. Co. v. Asbestos Claims Management Corp.
| Decision Date | 20 May 1996 |
| Docket Number | D,No. 1300,1300 |
| Citation | 85 F.3d 49 |
| Parties | STONEWALL INSURANCE COMPANY, Plaintiff-Appellant-Cross-Appellee, v. ASBESTOS CLAIMS MANAGEMENT CORPORATION, Defendant-Appellee-Cross-Appellant, Liberty Mutual Insurance Company, Underwriters At Lloyds, Continental Casualty Company, American Motorists Insurance Company, Affiliated FM Insurance Company, Republic Insurance Company, First State Insurance Company, United States Fire Insurance Company, Houston General Insurance Company, Twin City Fire Insurance Company, Old Republic Insurance Company, American Centennial Insurance Company, The Constitution State Insurance Company, Employers Insurance Of Wausau, and Commercial Union Insurance Company, Defendants-Appellants-Cross-Appellees, and The Travelers Insurance Company, et al., Defendants. ASBESTOS CLAIMS MANAGEMENT CORPORATION, Third-Party-Plaintiff-Appellee-Cross-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Third-Party-Defendant-Appellant-Cross-Appellee, and H.S. Weavers (Underwriting) Agencies, Ltd., Third-Party Defendant. ocket 93-7314(L). |
| Court | U.S. Court of Appeals — Second Circuit |
Before NEWMAN, Chief Judge, and WINTER and MAHONEY, Circuit Judges.
Petition for Rehearing
The Asbestos Claims Management Corporation ("ACMC") petitions for rehearing of our December 13, 1995, decision resolving numerous issues arising in a complex appeal by several insurers and a cross-appeal by ACMC concerning insurance coverage for asbestos-related injuries. See Stonewall Insurance Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir.1995). The petition primarily seeks reconsideration of that aspect of our decision that affirmed, with one modification, the District Court's method of allocating responsibility among ACMC and its insurers for asbestos bodily injury claims that trigger multiple policies.
The District Court had ruled, on motion for summary judgment, that the obligations of all triggered policies were to be prorated based upon the policies' respective triggered time periods with one significant qualification. That qualification, referred to as the "proration-to-the-insured approach," required the insured 1 to bear a pro rata share of payment obligations for any periods in which the insured had no insurance, either because it did not purchase insurance or because the insurance it purchased had been consumed by prior payments. In effect, the insured was treated for uninsured periods as if it was an insurer that had issued an insurance policy to itself, and it was included in the allocation formula in the same way as the other insurers.
We affirmed the District Court's allocation method, including the proration-to-the-insured approach, with one modification. We relieved the insured of a pro rata obligation for time periods after 1985 because, from that point on, the insurers' policies included asbestos exclusion clauses. See Stonewall, 73 F.3d at 1201-04.
ACMC now challenges the allocation ruling, as modified, on two grounds. First, ACMC contends that the case should be remanded to afford it an opportunity to persuade the District Court that proration based solely on time on the risk is unfair and that a proper allocation would consider both time on the risk and the degree of risk assumed. Second, ACMC contends that the case should be remanded to afford it an opportunity to prove that its lack of sufficient insurance prior to 1986 resulted from the unavailability of insurance beyond...
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