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The Avoidable Evils of "All Sums" Liability for Long-Tail Insurance Coverage Claims

Most events covered by insurance happen at a fixed point in time. Accordingly, in the typical context, timing issues relating to coverage under commercial general liability (CGL) insurance policies relate to whether the bodily injury or property damage happened during a particular policy period. This question is usually described as whether the policy is “triggered.” In the context of the usual claim, a court simply determines when the injury or damage took place, and whether the relevant policy was in effect at that time. Environmental, toxic tort, and some products liability claims, however, present more complex timing issues. These types of claims often involve progressive injuries or damage happening over substantial timeframes. In the insurance industry, such losses are often called “longtail” claims. Many long-tail claims involve injury or damage spanning multiple policy years. A court considering timing issues relating to coverage for such claims is faced not only with the challenge of determining which policies are triggered, but also with a far more complicated question: whether and how to allocate the damages between the relevant insurers and between the insurers and the policyholder. The most common approach used to determine how to allocate longtail losses among multiple triggered policy years is often called “pro rata