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CNA, Marsh win WW II-era asbestos rulings: Federal appeals court

CNA Marsh

A federal appeals court on Monday affirmed lower court rulings in favor of CNA Financial Corp. and Marsh LLC units in asbestos cases filed in connection with World War II-era policies issued to a former shipping company.

A total of 47 lawsuits had been filed against Morristown, New Jersey-based Cosmopolitan Shipping Co. under the Jones Act, in which former seamen alleged bodily injury as the result of asbestos on, or emanating from, a vessel operated by Cosmopolitan, according to court papers in Cosmopolitan Shipping Co. Inc. v. Continental Insurance Co., Marsh & McLennan Co.

Continental had provided maritime protection and indemnity insurance during World War II, according to the ruling.

The cases were settled by Cosmopolitan in 2017 for $4.6 million, according to the ruling by the 2nd U.S. Circuit Court of Appeals in New York, which affirmed a decision by the U.S. District Court in New York in the insurer and broker’s favor.

Cosmopolitan argued that because it chartered vessels on behalf of the United Nations Relief and Rehabilitation Administration, an international social welfare program that distributed aid to nations affected by World War II, Continental must have provided insurance that covers the consent judgment despite the fact that the relevant policy is missing and cannot be found, the ruling said.

“While it is not clear whether the applicable evidentiary standard for lost policy cases is preponderance of the evidence or clear and convincing evidence…Cosmopolitan’s proffered secondary evidence fails even the less demanding preponderance of the evidence standard,” the appeals court panels’ ruling said, in ruling in Continental’s favor. The panel also ruled that Cosmopolitan’s claims against Marsh are time-barred.

Plaintiff attorney Gregory J. Coffey of Coffey and Associates in Morristown, N.J., issued a statement that said it disagreed with the ruling with respect to both Continental and Marsh.

On the Continental ruling, he said, “Most missing policy cases seek to construe a policy from secondary evidence. Here the district court actually found the existence of the Continental policy… at trial but neither the Second Circuit nor the District Court could construe its terms despite the language of earlier and later marine Protection and Indemnity policies being almost the same.”

Other attorneys in the case did not respond to requests for comment.