CNA, Marsh Wins WWW II-era Asbestos Rulings: Federal Court of Appeals

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A federal appeals court on Monday upheld lower court rulings in favor of CNA Financial Corp. and Marsh LLC units that were awarded to the former shipping company over World War II-era policies.

Cosmopolitan Shipping Co. of Morristown, New Jersey under the Jones Act. A total of 47 cases have been filed against ex-seafarers alleging bodily injury due to exposure to or exposure to asbestos on a ship operated by Cosmopolitan. In court documents Cosmopolitan Shipping Co. Inc. v. Continental Insurance Co., Marsh & McLennan Co.

According to the judgment, Continental provided maritime protection and indemnity insurance during World War II.

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

Cosmopolitan argued that because it chartered the ships on behalf of the United Nations Relief and Rehabilitation Administration, an international social welfare program that distributed aid to countries affected by World War II, Continental should have provided insurance covering consent judgment. The policy was missing and could not be traced, the judgment said.

“While it is unclear whether the evidentiary standard applicable to lost policy cases is a preponderance of the evidence or clear and convincing evidence … the circumstantial evidence offered by Cosmopolitan fails even the lesser requirement of the evidentiary standard,” the appeals court panel’s ruling said. In favor of Continental. The panel ruled that Cosmopolitan’s claims against Marsh were time-barred.

Plaintiff attorney Gregory J. Coffey of Coffey and Associates in Morristown, NJ, issued a statement saying he disagreed with the verdict with respect to both Continental and Marsh.

In the Continental decision, “Most missing-principle cases seek to construct the policy from secondary evidence. Here the district court actually found the existence of a Continental policy…at trial but neither the Second Circuit nor the district court could make its terms even though the earlier and later maritime security and indemnity policies were virtually identical.”

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


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