Allocation Ruling: The Second Department “Time On The Risk” Allocation Ruling In Lead Paint Cases Will Not Be “The Last Word”

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A New York intermediate appellate court has made a ruling on allocation of the settlement of a lead paint claim between consecutive insurers of the same building. This ruling is significant, not only to lead paint cases, but to any toxic tort cases arising in New York. In Serio v. Public Service Mutual Insurance Co., Docket No. 13599, (April 23, 2003) the Appellate Division, Second Department held as follows:

“Where the exposure occurred over a period of three years, and where the two insurers covered that loss, respectively, during consecutive periods of two and one years, we hold that each insurer shall bear a share of liability for the purpose of funding their negotiated settlement with the injured parties, directly proportionate to each insurer?s time on the risk”

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