Part two: Andrew Burns unravels the strands of the asbestos “trigger” trial
'An insurer takes the risk of the insured’s liability increasing or expanding'
The first part of this article examined the background to the employers’ liability policy trigger litigation (EL trigger) and the consequences for insurers and asbestos victims were explored: Durham v BAI (Run Off) Ltd (In Scheme of Arrangement) and other cases [2008] EWHC 2692 (QB), [2008] All ER (D) 220 (Nov) (see NLJ 23 January 2009, p 96). The judge held that the employers’ insurers were wrong to decline claims following the Court of Appeal decision in Bolton v MMI [2006] 1 WLR 1492. Mr Justice Burton ruled that the policy wordings which were triggered when an employee “sustained” an injury had to be construed in the same way as policies triggered at the time when the injury was “caused”. The litigation now moves to the Court of Appeal.
The defendant insurers’ arguments
The defendants had reinterpreted the “sustained” wordings following the Bolton case, suggesting that thirty years of insurance practice had been mistaken. Their case was that injury in fact
