Ohio Supreme Court declines to allocate liability across multiple insurers and multiple policy periods when the injury or damage occurred at a discernible time.

Ohio has long recognized the “all sums” approach to allocation of insurance coverage for long tail claims that occur over multiple policy periods. See, Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, and Pennsylvania Gen. Ins. Co. v. Park Ohio Ind., 126 Ohio St.3d 98, 2010-Ohio-2745, 930 N.E.2d 800. This allows an insured to pick the policies that it might trigger to cover a particular claim, seek recovery from those insurers, and then allow the insurers that paid the loss to allocate it among other insurers that might provide coverage for a long tail claim.

In Lubrizol Advanced Materials, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, the U.S. District Court for the Northern District of Ohio certified a question to the Ohio Supreme Court asking the court to determine whether the phrase “those sums” was the same as “all sums” in an insurance policy. In analyzing the question before it, the court stated:

[W]e refused to engage in a hypertechnical grammar analysis to determine whether the phrase “those sums” is always more limited than “all sums” and would always lead to a different allocation. As with any contract, insurance policies should be interpreted as written, and the meaning of the phrase “those sums” depends on the context of each policy and each case. We decline to set a bright line rule based merely on a parties’ use of the work “those” instead of “all.”

The court went on to find that when it can be determined that a loss occurred at a discernable time, there is no reason to allocate liability across multiple insurers and multiple policy periods. The court determined that the products claims at issue in the Lubrizol case could be allocated based on the date of occurrence; therefore, the distinction between “all sums” and “those sums” was not material, and the losses should not be spread across multiple policies but should be allocated to the policies that covered the time of the particular occurrences.

_{Case Law Alerts, 3rd Quarter, July 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}