Availability Rule's Death Has Been Greatly Exaggerated

By Jacob Mihm, Hoke LLC (January 26, 2017, 10:05 AM EST) -- Just last month, the Sixth Circuit delivered the most recent decision to address whether, in a pro rata jurisdiction, the allocation of losses for long-tail claims should be limited to policy periods in which insurance was available for purchase by the policyholder to cover those claims. In Continental Casualty Co. v. Indian Head Industries Inc. (6th Cir. Dec. 16, 2016), the Sixth Circuit confirmed that, under Michigan law, the availability rule applies to pro rata allocation for asbestos claims. Numerous other jurisdictions have adopted the availability rule as well. Thus, rumors of its demise, as suggested in Scott Seaman's recent Law 360 article titled "Door Closing On 'Unavailability' Insurance Exception" (Jan. 9 and 10, 2017), have been greatly exaggerated....

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