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Asbestos: Supreme Court Rejects Insurers’ Arguments in the EL Trigger Litigation

The Supreme Court has handed down judgment in the EL Trigger Litigation (28 March 2012). David Platt KC and Peter Houghton (for Excess Insurance) and John Williams (for 10 local authorities) appeared in the Supreme Court appeal which was heard over 8 days in December.

In its judgment, the Supreme Court unanimously rejects the arguments of 4 EL insurers who wrote EL policies on “injury sustained” and “disease contracted” wordings that their policies are triggered on the date a mesothelioma victim develops a tumour rather than the date of exposure to asbestos. In so doing, the Supreme Court upheld the Court of Appeal’s unanimous ruling on the construction of policies that used “disease contracted” wording but reversed the Court of Appeal’s majority ruling on policies that used “injury sustained” wording. The Supreme Court also rejected (by a majority of 4 to 1) the insurers’ argument that an employer cannot successfully claim on the EL policies under consideration as he cannot show that the mesothelioma was sustained in a particular policy year. The decision therefore restores the status quo for mesothelioma claims that existed in the EL insurance market before the decision in Bolton MBC v Municipal Mutual Insurance Limited [2006] 1 WLR 1492.

Links to a Briefing Note that provides further details of the judgment and a copy of the Supreme Court’s judgment can be found below:

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