Coverage issues, including, inter alia, proof that an event giving rise to liability occurred within the covered period before a specific policy can be accessed for coverage, are all preserved. The Pennsylvania Supreme Court in Egger noted that National Memorial Services involved a life insurance policy but applied the rule to the facts before it involving personal injury and an excess insurance policy. 1995) ("The purpose of a no assignment clause is to protect the insurer from increased liability, and after events giving rise to the insurer's liability have occurred, the insurer's risk cannot be increased by a change in the insured's identity.").
In this case, to the extent that the events giving rise to liability have already occurred, there will be no additional risk to the insurance companies by virtue of the assignments. The court found that under § 1123(b)(3)(B), on the effective date of the plan, the Trust shall be vested with and have the right to enforce against any Entity any and all of such causes of action, with the proceeds of the recovery of any such actions related to insurance for Asbestos Related Claims (including, without limitation, the Coverage Litigation) to be paid to the respective Debtor....
Vt.2006)(assignments after loss are permitted as there is no additional risk to insurer; anti-assignment clauses operate after loss occurs to limit the free assignability of claims, which is not favored by the law). The court noted that the trust was authorized as a matter of law to appear in and act for debtors in pending actions and to pursue causes of action for the benefit of holders of asbestos related claims.
April 16, 2004), the court held that, with respect to causes of action that were transferred to the trust pursuant to the plan of reorganization, the trust was designated as a successor to the debtors and a representative of the chapter 11 estates. The court concluded that the debtors' insurance policies, rights under, and proceeds of those polices could be vested in the trust under § 1123(a)(5)(B), notwithstanding state law or contractual provisions to the contrary.
The triggering event for coverage in Nat'l Mem'l was the death of the insured. § 1123(a)(5), policies or rights thereunder may be transferred to an asbestos personal injury trust, whether or not state law would permit assignment.
The principle enunciated in National Memorial Services, supra, that an anti-assignment clause is unenforceable after the loss has occurred, was reiterated in Egger v. The court in Egger said: The logic behind the general rule is that post-loss assignments do not invalidate the policy, thereby changing the risks the insurer undertook to insure; rather, they assign the right to a money claim. While Nat'l Mem'l involved life insurance policies and the matter concerns an excess insurance policy, this distinction does not warrant a different outcome or analysis.
Bender, Bradley Arant Rose & White, LLP, Birmingham, AL, Julia S. Thereafter, after devoting a considerable amount of time and effort, the Debtors, Plan Proponents, This stipulation was entered into by and among the Plan Proponents and certain Objecting Insurers. Foulke provided plant protection and security services pursuant to its contracts with PECO. May 25, 2006)(anti-assignment clauses are to protect insurer from increase in the risk it agreed to insure but assignment of loss does not expand risk to insurer, simply allows change in identity to "reconnect the policy's coverage to the insured loss;" most courts follow the risk/loss distinction to allow insured to assign loss); R. Accordingly, we found that there was no "sound reason for the insurance company to forbid or limit an assignment by a beneficiary of the amount due him or her after the death of the insured." Id. However, with the Gulf excess insurance policy, there was no death of an insured; rather, Foulke purchased coverage to protect itself against an award of damages exceeding the limits of its primary liability policy with respect to its activities at the PECO plant. Cal.2003), the bankruptcy court concluded that under 11 U. In a subsequent opinion in the same case, In re Western Asbestos Co., 313 B. Del.2002)("[§] 1123(a) can be effected without regard to otherwise applicable nonbankruptcy law..."). April 16, 2004) (policies or rights transferable under 11 U.