A High Court in the United Kingdom has rendered a significant opinion in the asbestos litigation that has clogged that country’s courts for the past several years. Various lower courts had ruled that public liability policies providing coverage for employees contracting mesothelioma were triggered on the date of injury. Different courts differed however over what constituted injury.Was the employee injured on the date he or she inhaled asbestos fibers or on the date that proof of injury actually could be detected?
At issue was the extent to which British courts should follow the Court of Appeals decision in Bolton Metropolitan Borough Council v. Municipal Mutual Insurance & Commercial Union. In Bolton, which had been decided in 2006, the Court of Appeals had used the date upon which actual injury from asbestos exposure had occurred rather than the date upon which exposure to asbestos fibres first occurred. Actual injury could be determined by the development of phyical manifestation of health problems such as the development of lung tumors.
In a case styled Durham v. BAI (Run Off) Ltd., the High Court decided that for public policy reasons, British courts should hereafter use the date on which the employee first inhaled the asbestos fibres as the date of injury instead of using the date on which lung tumors were first detected.This will significantly increase the numbers of policies triggered by asbestos claims, since the mesothelioma victims may have developed tumors only recently from inhalation of asbestos fibres, but the exposure to the fibres may have begun decades earlier.
This will mean that insurance archeologists such as I will be uniformly required to locate and retrieve policies extending back in time some thirty or forty years to the date of first asbestos use, instead of back to themore recent dated policies issued on or about the time that tumors were detected. While finding older policies takes more skill, experienced insurance archeologists have developed a knowledge of insurance archives and record keeping procedures that routinely produces policies from the 1950’s, ’60’s and 70’s. Older policies are often more valuable than more recent policies even though older policy limits are lower. That is true because while the dollar amount per exposure is less, multiple policies are triggered.