From Gerry's Desk - An End to Continuous Trigger Coverage in New Jersey

Recently, the New Jersey Appellate Division issued 2 opinions that address the continuous trigger of coverage under the General Liability Policy.

Polarome International (Polarome) distributed food flavorings including a chemical used as butter flavoring named diacetyl. Multiple lawsuits alleged inhalation of diacetyl resulted in bodily injuries including lung damage. Those exposed had no idea they were being injured until they were diagnosed years later.

The injuries occurred over a period of time, and many different GL policies for Polarome were in effect over this time period. This set of circumstances is known as a "continuous trigger" of coverage because all of the policies in effect during the period the injuries are suffered are triggered.

Those carriers who wrote policies in the years after the injuries were diagnosed denied coverage stating the injuries occurred before their policies were effective. This was a direct challenge to the "continuous trigger" of coverage.

The NJ court determined the end of this "continuous trigger" is with the manifestation of the injury:

"The last pull of the trigger occurs with the initial manifestation of a toxic-tort personal injury. Upon initial manifestation, the “scientific uncertainties” that led to adoption of the continuous-trigger approach, Benjamin Moore, supra, 179 N.J. at 98, no longer exist. It is only “progressive indivisible injuries [that] ‘should be treated as an occurrence within each of the years of a CGL policy.’” Id. at 101 (citing Spaulding, supra, 176 N.J. at 44). The sequelae of that initially manifested injury and all subsequent, related injuries are no longer indivisible simply because there has been an initial manifestation. It is only the undetectable injuries at and after exposure and prior to initial manifestation that are progressive and indivisible such that the occurrence of an injury cannot be known.

We find no error in the judge’s conclusion that the last pull of the trigger is the initial manifestation of a diacetyl-related personal injury. The issue of scientific uncertainties as to the precise date when injury first occurs in a toxic-tort personal injury case was resolved by adopting the continuous-trigger theory, thus ending the debate over whether the injury occurred at first exposure, when the injury was manifested, or sometime between those two events. Once a diacetyl-related personal injury is initially manifest, the scientific uncertainties are laid to rest and subsequent CGL policies are not triggered."

This decision is important because it limits the available coverage under GL policies to those policies effective up to and including the manifestation of an injury, but not beyond.

Click here for a copy of the ruling: Polarome International v. Greenwich Insurance Company

If you have any questions or concerns about your particular circumstance, send us an email at contactus@kmrdpartners.com.

Sincerely,

Gerry Sorge, Claims Advocate
KMRD Partners, Inc.

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