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Claim of D'Amiante du Quebec6/1/2000
Order, Supreme Court, New York County (Beverly Cohen, J.), entered August 5, 1998, modified, on the law, so as to declare that coverage under the Midland Policy for asbestos-related personal injury claims is triggered by exposure to asbestos by inhalation, whether first or subsequent, and not by exposure "in residence"; declare that the Superintendent is bound by the judgment in the Federal action only to the extent that the judgment adjudicated the claimant's (hereinafter LAQ) rights under policies other than Midland's, including the Highlands policy; vacate the declaration that with reference to the Highlands policy, Midland's liability to LAQ is reduced by $17.5 million; vacate the declaration that the liability limits of the Midland policies are deemed "collectible" and "available," as those terms are used in the "Other Insurance" clauses of policies other than Midland's, and declare that the limits of the Midland policies are neither "collectible" nor "available" under the "Other Insurance" clauses of the non-Midland policies; vacate the declaration that the Superintendent has failed to meet his burden of proving that the Midland policies need not be exhausted prior to the implication of any subsequent policies containing "Other Insurance" clauses; vacate as premature the declaration that the Employers' Liability policy must be exhausted prior to the implication of the Midland policies, and grant LAQ leave to establish that the funds are uncollectible for reasons other than unjustified refusal by Employers' Liability to pay; vacate the declaration that LAQ's self-insured retention for all policy periods constitutes "other valid and collectible insurance," as defined in the Midland policies, and declare that Midland's obligations shall be reduced only by the $500,000 self-insured retention recited in the Midland policy; vacate the declaration that the Superintendent has failed to meet his burden of proving that Continental Casualty Company and Transportation Insurance Company, First State and American Home Assurance Company policies constitute "Other Insurance," as that term is used in the Midland policy, and declare that to the extent said policies cover the same risk, they constitute "Other Insurance"; and vacate the declaration that the Superintendent has failed to meet his burden with regard to policies containing asbestosis exclusions, and direct remand for further review of that issue upon production by LAQ of the policies which Midland contends constitute "Other Insurance," and as so modified, affirmed, without costs.
Opinion by Wallach, J.P. All concur.
Order filed.
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