Tuesday, 19 October 2010

Trigger litigation

On 16 October, I mentioned the Court of Appeal judgement that has set the cat amongst the pigeons in terms of mesothelioma damages claims.  An article written by Sarah Hunt of Shoomiths, a national UK law firm, summaries the position clearly and succinctly, so I have reproduced it below.  

One step forward, two steps back as they say.  Let's hope the Supreme Court can sort this out quickly and rationally........

Mesothelioma victims face delay and uncertainty following 'trigger litigation'

Following the Court of Appeal's long-awaited decision on interpretation of insurance policies in mesothelioma claims - known as the 'trigger litigation' - the judgment has only increased asbestos victims' uncertainty.
A person may be exposed to asbestos negligently as long as 50 years before they actually develop mesothelioma, an asbestos related cancer. 
Three insurance companies asked the courts to consider the wording of their policies to determine when they would have to pay out – either when the exposure to the asbestos occurred or when someone develops symptoms.
In 2008, the High Court determined that it was the insurers providing cover when the asbestos was inhaled that would have to pay.
The decision meant greater access to justice for victims of asbestos, because if the court had found that the trigger was when symptoms developed, people would be prevented from bringing a claim if the insurance company was no longer in existence and therefore unable to pay out.
Of course, insurers providing companies with cover against asbestos exposure – and who were 'on cover' at the time the symptoms developed - were for years receiving insurance premiums, but have now avoided having to pay out on claims.
However, the Court of Appeal examined individual insurance policies, finding that in some cases it would be the insurers who were on cover at the time of the exposure that would pay out; while in others, it was the insurers who were on cover when the symptoms started.
The decision was further complicated by the three Court of Appeal judges taking three different approaches in reaching their decision.
This has created uncertainty for both insurers, who don't have clear guidance from the court about how the wording of their policies will be interpreted; and for people diagnosed with mesothelioma who are left uncertain whether they will be able to claim for the debilitating and ultimately fatal illness they're suffering from.
The insurers involved have been given permission to appeal the decision, which means there will be no certainty until the Supreme Court rules.
Many mesothelioma victims are unlikely to survive to hear the outcome of the appeal.

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