A Delaware courtroom not too long ago held in Mattel, Inc. and Fisher Value, Inc. v. XL Insurance coverage America, Inc., et al.{that a} collection of product legal responsibility claims courting again to 2013 constituted a single “prevalence” underneath the toy producer’s and distributor’s industrial basic legal responsibility (CGL) insurance policies.
The case stemmed from Mattel’s request for protection and indemnity protection in response to claims that sure toys brought about bodily accidents to infants. The CGL protection tower, which included insurance policies issued by a number of main, extra, and umbrella insurers, spanned from 2011 to 2020.
The first insurance policies outlined “prevalence” as “an accident, together with steady or repeated publicity to considerably the identical basic dangerous situations.” Additionally they included a Lot or Batch Clause Endorsement with a “Deemer Clause,” which deemed all accidents arising from a single “lot” of merchandise as occurring every time the harm within the first filed declare occurred. Beneath the endorsement, a “lot” was outlined as “two or extra discrete items of the identical or considerably related good or product” that shared a typical dangerous situation, defect, error or suspected deficiency.
The umbrella insurance policies used an analogous definition of “prevalence” and included an Prevalence Amendatory Endorsement. This endorsement aggregated distinct claims arising from the identical alleged defect or hazard in considerably related merchandise right into a single “prevalence.” Nevertheless, in contrast to the Lot or Batch Clause Endorsement, the Prevalence Amendatory Endorsement didn’t embrace a “Deemer Clause.”
The toy producer, together with one in all its main insurers, contended that the product legal responsibility claims ought to all be handled as a single “prevalence.” In distinction, one other insurer within the protection tower argued that the difficulty was untimely, asserting that the courtroom first wanted to find out the proximate causation of the alleged accidents earlier than addressing the variety of “occurrences.”
The Delaware courtroom finally held that the claims constituted a single “prevalence” underneath the relevant insurance policies. It permitted allocation of the claims based mostly on the 12 months wherein the accidents occurred. The courtroom discovered that the claims arose from “the identical or considerably the identical ‘hazard’: the faulty design of the (producer’s) merchandise, together with the incline angle, posed a hazard to the well being of infants.” It emphasised that the merchandise have been a part of the identical product line and shared frequent hazards, satisfying the coverage’s definition of a single “prevalence.”
With respect to allocation, the courtroom held that protection underneath the surplus and umbrella insurance policies may solely be triggered by a bodily harm that really occurred throughout a specific coverage’s 12 months. Considerably, the Prevalence Amendatory Endorsement within the extra and umbrella insurance policies didn’t comprise a “Deemer Clause”—in contrast to the Lot or Batch Clause Endorsement within the main insurance policies—which might have handled all accidents arising from a single “lot” of merchandise as occurring on the time of the primary claimed harm. Because of this, the courtroom concluded that the claims should be allotted to the coverage in impact on the time every particular person bodily harm occurred, somewhat than being grouped underneath a single coverage 12 months.
This determination underscores the vital significance of rigorously reviewing the definition of “prevalence” in legal responsibility insurance policies, together with any endorsements that modify or make clear its software. On condition that the quantity and timing of occurrences typically performs a central function within the availability and extent of protection, policyholders ought to seek the advice of skilled protection counsel to assist interpret coverage language and guarantee they maximize potential restoration underneath all relevant layers of insurance coverage.
