Employers' Liability Trigger Litigation
On 11th November 2009 the Court of Appeal (Rix L.J, Smith L.J, Burnton L.J)) begin hearing the long awaited appeal from the “landmark” ruling of Burton J delivered in November 2008. Tim Smith acts as Junior Counsel for the Claimants in Lead Action 2. He was also Junior Counsel for Commercial Union in Bolton v MMI and CU 2006 1 WLR 1492 which was the forerunner to the present appeal.
The Appeal court is being asked to overturn the first instance decision that in mesothelioma claims employers’ liability policies which provide an indemnity in respect of “injury” or “disease” “sustained” “or contracted” during the policy period were triggered at the date of inhalation of asbestos (date of inhalation) and not at the later date of development of the mesothelioma tumour (injury in fact).
This case is of significant importance to asbestos victims, solvent employers, and insurers. The Government has recognised the particular public importance to be attached to this decision and has been granted permission to intervene by making written submissions.
The litigation comprises 6 lead actions
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3 involve individual Claimants (Actions 1-3) who had recovered judgment against an insolvent employer and brought claims under the Third Party Rights Against Insurers Act 1930;
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2 cases involve 3 solvent employers/insureds who brought claims for declaratory relief in respect of their liability to their employees;
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1 case involves a dispute between (a) Zurich and MMI surrounding the transfer of liabilities from MMI and Zurich in relation to local authority policies and (b) MMI and 10 local authorities.
The Appellant insurers are either in run off or insolvent - and include BAI, The Independent, Excess and MMI.
The Appeal is listed for a two week hearing.