The “Non-Cumulation Clause”: an “Other Insurance” Clause by Another Name

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument should be rejected under insurance policy interpretation principles such as “contra proferentem” and the “reasonable expectations” doctrine. When such principles are applied to Non-Cumulation Clauses, such clauses are hopelessly ambiguous in the context of long-tail liability claims. Indeed, the conclusion that Non-Cumulation Clauses are ambiguous when interpreted and applied to long-tail liability claims is highlighted by the numerous court decisions in which the courts cannot agree on what the clauses mean or how they should be applied to long-tail liability claims. The insurers’ argument is also inconsistent with the intended purpose of Non-Cumulation Clauses. According to one of the underwriters involved with the drafting of the London version of the clause, the clause was intended only to prevent a policyholder from obtaining a windfall double recovery for a loss under two different policy forms when the insurance industry was transitioning from one policy form to another in the early 1960s. In fact, some versions of the Non-Cumulation Clause, such as the London version, were drafted long before long-tail liability claims were recognized as such and before the modern trigger and allocation rules had been adopted by the courts. Consequently, Non-Cumulation Clauses were never intended to apply to long-tail liability claims under modern trigger and allocation rules. When analyzed, Non-Cumulation Clauses are really just a variation of “other insurance” clauses. As such, after the policyholder’s liabilities have been paid in full, the policyholder’s liabilities should be apportioned among the triggered policies in accordance with the applicable jurisdiction’s laws regarding allocation and “other insurance” clauses

The “Non-Cumulation Clause”: an “Other Insurance” Clause by Another Name

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument should be rejected under insurance policy interpretation principles such as “contra proferentem” and the “reasonable expectations” doctrine. When such principles are applied to Non-Cumulation Clauses, such clauses are hopelessly ambiguous in the context of long-tail liability claims. Indeed, the conclusion that Non-Cumulation Clauses are ambiguous when interpreted and applied to long-tail liability claims is highlighted by the numerous court decisions in which the courts cannot agree on what the clauses mean or how they should be applied to long-tail liability claims. The insurers’ argument is also inconsistent with the intended purpose of Non-Cumulation Clauses. According to one of the underwriters involved with the drafting of the London version of the clause, the clause was intended only to prevent a policyholder from obtaining a windfall double recovery for a loss under two different policy forms when the insurance industry was transitioning from one policy form to another in the early 1960s. In fact, some versions of the Non-Cumulation Clause, such as the London version, were drafted long before long-tail liability claims were recognized as such and before the modern trigger and allocation rules had been adopted by the courts. Consequently, Non-Cumulation Clauses were never intended to apply to long-tail liability claims under modern trigger and allocation rules. When analyzed, Non-Cumulation Clauses are really just a variation of “other insurance” clauses. As such, after the policyholder’s liabilities have been paid in full, the policyholder’s liabilities should be apportioned among the triggered policies in accordance with the applicable jurisdiction’s laws regarding allocation and “other insurance” clauses

Forum Shopping COVID-19 Business Interruption Insurance Claims

Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 1000 COVID-19 business interruption insurance lawsuits filed thus far, more than 700 of them have been filed in, or removed to, federal court, with more than 250 of the cases filed as class actions. Many of them were also filed in states with insurance laws that are not favorable to policyholders. Conventional wisdom provides that a plaintiff’s chances of winning are generally much higher in state court than in federal court and that historically federal class actions against insurers have been successful only approximately twenty-five percent of the time. So, why were so many of the COVID-19 business interruption insurance cases filed in federal court in unfavorable states and as class actions when the historical chances of winning are so low in such forums, particularly as class actions? This Essay provides some possible answers to that question. In doing so, it explores forum shopping considerations in general, the conventional wisdom regarding litigating in federal versus state court, and the empirical data regarding the odds of winning in state versus federal court

Student Perceptions of Online Video Cases to Promote Helping Skills Training

Video case based learning was integrated with multimodal online learning to facilitate helping skills training for graduate students. Five online cases were utilized before students participated in classroom-based role-plays and live practice. Students’ reactions to the activity were positive, and recommendations for counselor training are described

An exploratory review of HIV prevention mass media campaigns targeting men who have sex with men.

BACKGROUND: Men who have sex with men (MSM) are at increased risk of HIV infection in both high- and low-income settings. Mass media campaigns have been used as a means of communicating HIV health promotion messages to large audiences of MSM. There is no consensus on which designs are most appropriate to evaluate the process and outcomes of such interventions. METHODS: An exploratory review was conducted to assess research examining awareness, acceptability, effects on HIV testing, disclosure and sexual risk, and cost-effectiveness of HIV mass media campaigns targeting MSM. We searched for quantitative and qualitative studies published between 1990 and May 2011 via the Cochrane Central Register of Controlled Trials, MEDLINE, EMBASE, Psych Info, ISI Web of Science, OpenGrey and COPAC, and contacting experts. No exclusions were made on the basis of study design or methods because our primary aim was to map evidence. We appraised study quality and present a narrative synthesis of findings. RESULTS: Sixteen reports from 12 studies were included. All were from high-income countries and most examined multi-media interventions. Half of the studies were single cross-sectional surveys. Three repeat cross-sectional studies collected data pre and post the campaign launch. The remaining three studies monitored routine data. Three studies included a nested qualitative component. Campaign coverage was the most commonly reported outcome (9 studies). Imagery, tone of language, content and relevance were identified in the qualitative research as factors influencing campaign acceptability. HIV testing rates (or intention to test) were reported by five studies. Two studies reported that testing rates were higher among men who had seen the campaigns compared to men who had not, but this may reflect confounding. Findings were less consistent regarding reductions in sexual risk behaviours (4 studies). None of the studies examined cost-effectiveness. CONCLUSIONS: Campaigns aim to provide MSM with information to help prevent transmission of HIV and to address increasing motivation and changing norms towards precautionary behaviours. However, the limitations of mass media in imparting skills in effecting behaviour change should be recognised, and campaigns supplemented by additional components may be better-suited to achieving these goals

Experiences in improving the state of the practice in verification and validation of knowledge-based systems

Knowledge-based systems (KBS's) are in general use in a wide variety of domains, both commercial and government. As reliance on these types of systems grows, the need to assess their quality and validity reaches critical importance. As with any software, the reliability of a KBS can be directly attributed to the application of disciplined programming and testing practices throughout the development life-cycle. However, there are some essential differences between conventional software and KBSs, both in construction and use. The identification of these differences affect the verification and validation (V&V) process and the development of techniques to handle them. The recognition of these differences is the basis of considerable on-going research in this field. For the past three years IBM (Federal Systems Company - Houston) and the Software Technology Branch (STB) of NASA/Johnson Space Center have been working to improve the 'state of the practice' in V&V of Knowledge-based systems. This work was motivated by the need to maintain NASA's ability to produce high quality software while taking advantage of new KBS technology. To date, the primary accomplishment has been the development and teaching of a four-day workshop on KBS V&V. With the hope of improving the impact of these workshops, we also worked directly with NASA KBS projects to employ concepts taught in the workshop. This paper describes two projects that were part of this effort. In addition to describing each project, this paper describes problems encountered and solutions proposed in each case, with particular emphasis on implications for transferring KBS V&V technology beyond the NASA domain

The View from the Haua Fteah: Cave Sediments and Environmental Change During the Middle to Later Stone Age in Cyrenaica, Libya

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Executive functioning (fully) and processing speed (mostly) mediate intelligence deficits in children born very preterm

Children born very preterm (<32 weeks gestational age) are known to be at increased risk of neurocognitive impairments, in domains including executive functioning, processing speed, and fluid and crystallised intelligence. Given the close association between these constructs, the current study investigated a specific model, namely whether executive functioning and/or processing speed mediates the relationship between preterm birth and intelligence. Participants were 204 children born very preterm and 98 full-term children, who completed a battery of tasks measuring executive functioning, processing speed, and fluid and crystallised intelligence. Independent-samples t-tests found significantly poorer performance by children born preterm on all measures, and a confirmatory factor analysis found preterm birth to be significantly related to each of the cognitive domains. A latent-variable mediation model found that executive functioning fully mediated the associations between preterm birth and both fluid and crystallised intelligence. Processing speed fully mediated the preterm birth-fluid intelligence association, but only partially mediated the preterm birth-crystallised intelligence association. Future research should consider a longitudinal study design to test whether these deficits and mediating effects remain throughout childhood and adolescence