AMICUS CURIAE – Plastics Engineering v. Liberty Mutual 

The US Court of Appeals for the Seventh Circuit requested that the Wisconsin Supreme Court interpret state law regarding three issues that arose during an asbestos liability suit. Plastics Engineering is a defendant in hundreds of suits alleging individuals’ exposure to asbestos-containing products it manufactured from 1950 to 1983. Liberty Mutual Insurance Co. provided primary general liability policies to Plastics Engineering from 1968 to 1989 and, except for two years in the mid-1980s, umbrella excess coverage policies from 1970 to 1988.  The federal appeals court asked the Wisconsin Supreme Court to answer the following three questions: 1) whether Wisconsin courts would adopt an “all sums” or pro rata allocation approach to liability for injuries spanning successive policy periods; 2) whether Liberty Mutual had properly used a non-cumulation clause to restrict coverage to the dollar limit of the policy in effect at the time of the loss; and 3) what definition applied in this instance to “occurrence”.

ACTION:  Midwest Environmental Advocates filed an Amicus Curiae, or “friend of the court”, brief in this case in July 2008, specifically addressing the question on whether Wisconsin courts should adopt an ‘all sums’ or pro rata allocation approach to determining liability when an injury spans multiple, successive insurance policies.  While the insurance coverage at issue in this case specifically relates to asbestos exposure, the Court’s decision could also  apply to insurance claims seeking coverage for clean up of contaminated properties..  The ‘all sums’ approach entitles the insured to obtain funds up to the policy limits, even if the contamination spans several policy periods or different insurers.

SUCCESS! On January 29, 2009, the Wisconsin Supreme Court adopted an “all sums” liability approach. This means that more money for cleanups should become available more quickly. Read the decision here.