United States: Connecticut Appellate Court Addresses Trigger, Allocation, Exclusions, And Other Issues Of First Impression In Coverage Litigation Over Long-latency Asbestos Injury Cases

Last Updated: June 20 2017
Article by John C. Pitblado

Connecticut's intermediate appellate court addressed a number of novel issues in a wide-ranging opinion regarding primary and excess insurers' respective duties to defend and indemnify their common insured for long-tail asbestos-related injury claims.

The opinion was rendered unanimously and authored collectively by the three-judge panel of Robert Beach, Douglas Lavine, and Stuart Bear (ret.). The case, styled R.T. Vanderbilt Company, Inc. v. Hartford Accident and Indemnity Co., 171 Conn. App. 61 (2017), was brought as a declaratory judgment action by plaintiff, R.T. Vanderbilt Company, Inc. (later substituted by Vanderbilt Minerals, LLC, its successor) ("Vanderbilt"), which was engaged in the mining and sale of various mineral products. Vanderbilt's subsidiary produced industrial talc from 1948 through 2008. Over the past several decades, thousands of underlying cases were filed against Vanderbilt throughout the United States alleging asbestos-related injuries arising from exposure to the talc, which the underlying plaintiffs allege (and Vanderbilt denies) contained asbestos. Vanderbilt claims its insurers breached their obligations to defend and indemnify Vanderbilt for these underlying actions.

Vanderbilt sued its primary general liability insurers that issued (or may have issued) policies between 1948 and 2008. One of the primary insurers filed a third-party complaint against various umbrella and excess insurers, against whom Vanderbilt then filed direct claims. Ultimately, approximately 30 insurers, including both primary and excess carriers, were named as defendants.

The trial court, Connecticut's Complex Litigation Docket (Shaban, J.), bifurcated trial into four phases. After trial of the first two phases, the parties filed interlocutory appeals and cross-appeals, challenging approximately 20 of the trial court's rulings. In a wide-ranging opinion of more than 100 pages, the appellate court addressed each of the questions, reversing on some, and affirming on others.

The principal rulings are grouped into the following categories: trigger of coverage, coverage for periods when insurance was unavailable, allocation of defense and indemnity obligations, and application of policy exclusions.

Trigger of Coverage

The court considered when injury should be said to "occur" in order to trigger coverage, where the injury is a long-latency disease such as asbestosis that does not manifest until years, or sometimes decades after exposure to a toxic agent. Unlike dog bites or car accidents, where the date of the occurrence is seldom in doubt, asbestos-related injuries are more difficult to pin down. Consider for example, the court's hypothetical query of which event along a chain should be considered the "occurrence" date: (1) year one, when a claimant is exposed to asbestos (termed 'exposure' or 'initial exposure' trigger); (2) year 15, when malignancy emerges ('injury-in-fact' trigger); (3) year 20, when disease manifests or is diagnosed ('manifestation' trigger); or (4) every year one-through-20 ('continuous' trigger)? The court also considered whether the question of trigger theory was one of fact, or purely of law.

The court first surveyed Connecticut precedent, and found that trigger theory remains an open question with respect to long-latency injury like asbestosis. Then, in declaring the issue a question of law, the court held that the trial court appropriately excluded expert testimony on the issue. The court then surveyed precedent from other jurisdictions and adopted what it declared the majority view – the "continuous trigger" approach – after citing and analyzing the competing public policy concerns underlying decisions in favor of various of the trigger theories. It therefore affirmed the trial court on this point.

Unavailability of Insurance

The court also addressed the question of how to allocate coverage responsibility among the insurers and policyholder for periods where the policyholder is effectively self-insured. The court reviewed Connecticut precedent applying the pro-rata allocation method, which allocates coverage responsibility among insurers based on 'time on the risk' and allocates it to the policyholder for periods where it was uninsured, or lost its insurance policies. The court determined that prior precedent did not address an "unavailability" exception to the general rule that the policyholder bears the risk for periods when it was not insured, and reversed the trial court's finding that the policyholder should bear the risk when coverage was unavailable, siding with the "narrow majority" of jurisdictions that include an "unavailability exception" to pro rata allocation. The court rejected the insurers' arguments that forcing them to insure for periods where they did not write policies or collect premiums is unfair, finding that countervailing issues of public policy outweighed the insurers' concerns.

The court also addressed the problem posed by pre-1962 liabilities, insofar as Vanderbilt was either uninsured or could not locate copies of its policies from 1948-1962. Here, the issue pitted the group of primary insurers against the group of excess/umbrella insurers. This is because the primary insurers agreed, as part of a side-track settlement between them in 2002, to allocate pre-1962 liabilities among the primary insurers whose policies (at least those that had been discovered) only covered the period after 1962. The trial court adopted the settlement agreement methodology, despite its inconsistency with the time-on-the-risk allocation method. The excess insurers argued that this method improperly caused the pre-1962 primary policies to be prematurely exhausted, thereby unfairly exposing the excess insurers during that period. The trial court nevertheless adopted the method, and the appellate court agreed, affirming on this point.

Default Date of Injury

The court next considered what default date should be applied where neither the underlying pleadings, nor extrinsic facts learned through discovery or otherwise, revealed when the underlying claimant was first exposed to a toxic agent. Here, the court remanded to the trial court for further proceedings, with instructions to explore certain relevant fact issues that would impact the viability of a statistical method to determine a reliable "average" default date of injury, based on data from injuries whose date of origin was identifiable, that could be used as a default beginning date under the continuous trigger theory.

Allocation of Defense and Indemnity Obligations

The court considered, in light of its other rulings, how to allocate defense and indemnity obligations to the insured and insurers, respectively. It held that insurance was "unavailable" to Vanderbilt post-1986, when asbestos was carved out of insurers' coverage based on the massive exposures that began to manifest in and around that time. Thus, based on the unavailability exception, it affirmed the trial court's decision to exclude the post-1986 period in the allocation. Vanderbilt likewise argued that the pre-1962 period should be excluded, insofar as the insurers failed to prove that insurance was available – and that Vanderbilt chose not to avail itself of it – during that period. The court disagreed, finding that coverage was available to Vanderbilt, but that Vanderbilt failed to prove it availed itself of that coverage. Therefore, it allocated the pre-1962 period to Vanderbilt (as well as a brief period in the 1970's when it apparently let coverage lapse for a couple months), and the post-1962 period, including post-1986, to the insurers.

Application of Policy Exclusions

Finally, the court considered the applicability of two exclusions: (1) the pollution exclusion; and (2) the occupational disease exclusion. The court reviewed Connecticut precedent interpreting the standard pollution exclusion, and found that certain key appellate cases were not helpful in the factual scenario this case presented. The court held that it was ambiguous whether inhaled asbestos fibers could be considered a "pollutant" "irritant" or "contaminant" because the manner in which exposure occurred did not implicate the type of "releases of toxic chemicals into the environment" that the court found the standard pollution exclusion was intended to address. It also found ambiguous the language requiring that such pollution be "discharged, dispersed or dispelled" into the atmosphere in order for the exclusion to apply. Applying the rule of contra proferentem, the court construed the ambiguities against the insurers.

Finally, the court also addressed some of the excess carriers' arguments relying on the "occupational disease" exclusion contained in some of the excess policies. The trial court held that the exclusion only applied to the claims of those who were employed by the insured. The appellate court reversed the trial court on this point, finding that the language of the cited exclusions did not restrict their application to employees, but rather to "occupational disease" by whomever might have suffered it, whether an employee or otherwise.

Now All Eyes Turn to the Connecticut Supreme Court

The defendant insurers filed a petition for certification of review to Connecticut's Supreme Court on May 17, 2017, and the plaintiff policyholder, R.T. Vanderbilt, was granted an extension of time to June 26, 2017 to oppose the petition. It will be interesting to see if and how the Connecticut Supreme Court weighs in. The appellate court addressed a number of novel issues, and also distinguished Connecticut Supreme Court precedent that could impact other of the issues. Given the impact the decision will have on the present litigation and beyond, and given the rapt attention of stakeholders – including the intervention of amici in support of both insurers and policyholders – it appears likely that the supreme court will accept certification for review. The question of whether or not to review will be answered in the near term, but should the court accept review, it may be some time before we have final answers on many, if not all of these questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.