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UK: Reinsurers entitled to reject “spiking” of mesothelioma losses

NICK ATKINS | June 4, 2019 | 237 views

In the first judgment to provide guidance on the allocation of mesothelioma liabilities at a reinsurance level, the Court of Appeal in Equitas Insurance Limited v Municipal Mutual Insurance Limited [2019] EWCA Civ 718 has ruled that insurers cannot choose to allocate their full loss to whichever reinsurance policy would produce the maximum recovery, ie so-called spiking or pick-and-choose is not permitted. Rather, losses must be presented to reinsurers on the basis of a pro rata allocation by reference to time on risk.
1.   Background to Mesothelioma Claims
The epic struggles of the English Courts in grapplling with the unique problems presented by mesothelioma claims are well-known. One of the outcomes was the development of a common law rule allowing an employee who has been exposed to asbestos over a number of years (and a number of employers) to recover the full amount damages from any single employer, even where it is not possible to prove on the balance of probabilities which employer was responsible for the critical exposure which caused the disease (Fairchild v Glenhaven Funeral Services [2002] UKHL 22; Compensation Act 2006, s.3). Employers can then pursue other employers for contribution (apportioned on basis on the period of employment).

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