Federal Appeals Court Addresses Proof Of Lost Policies
Back in the heyday of asbestos and environmental coverage litigation it was not uncommon to see decisions addressing whether alleged lost policies were sufficiently proven to possibly owe coverage. These decisions often examined the burden of proof required: preponderance of the evidence or clear and convincing evidence.

Burden of proof wasn’t the issue in Cardigan Mountain School v. New Hampshire Ins. Co., No. 14-2182 (1st Cir. May 27, 2015). But the opinion sheds light on what can possibly serve as proof of the existence of an alleged policy from way back in 1967: “The school has alleged specific facts concerning an audit report that tend to show that it had an insurance policy from New Hampshire Insurance Company as of 1971. And the school has then linked that allegation to the recollections of specific individuals who were involved in the relevant events and are of the view both that the school had a general liability policy in the preceding years, including the crucial 1967–1968 school year, and that there had been no change in carrier during that period of time.”

Supreme Court Allows Excess Insurer’s Bad Faith Claim Against Primary
The Supreme Court of Hawaii held that “an excess liability insurer can bring a cause of action, under the doctrine of equitable subrogation, against a primary liability insurer who in bad faith fails to settle a claim within the limits of the primary liability policy, when the primary insurer has paid its policy limit toward settlement.” St. Paul Fire & Marine Ins. Co. v. Liberty Mutual Insurance Co., No. SCCQ–14–0000727 (Haw. June 29, 2015).

[At issue: Pleasant Travel was sued for damages resulting from an accidental death. The primary insurer, Liberty Mutual, appointed counsel to represent Pleasant Travel. The excess insurer, St. Paul, alleged that Liberty Mutual rejected multiple pretrial settlement offers within the $1 million limit. Trial resulted in a verdict of $4.1 million. After the verdict, the action was settled for a confidential amount in excess of the Liberty Mutual policy limit. St. Paul claims that it paid the amount in excess.]