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A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund12/12/2005
he loss, as payments by other insurers for defense costs would reduce the amount of "ultimate net loss" coverage otherwise available to indemnify Chesterton for its liability on the underlying claims asserted against it. We conclude that the Fund's duty to defend claims against Chesterton is not set in motion unless Chesterton establishes that no solvent insurer has a duty to defend under other available policies, but that Chesterton is not required, as a precondition to the Fund's duty to defend, to demonstrate exhaustion of any or all "ultimate net loss" coverages within those policies.
7. The order denying Chesterton's motion to amend is affirmed. The third paragraph of the judgment of the Superior Court is modified by striking the first sentence and adding to it a provision declaring that the Midland policy for the period from February 1, 1980, until February 1, 1981, provides coverage, subject to the terms and conditions of that policy and the provisions of G. L. c. 175D, for all claims in which there was bodily injury during that policy period, and that the Midland policies for the periods February 1, 1981, until February 1, 1982, and February 1, 1982, until February 1, 1983, provide coverage, subject to the terms and conditions of those policies and the provisions of G. L. c. 175D, for all claims in which there was exposure to asbestos during one or both of those policy periods. With this modification, the judgment is affirmed.
So ordered.
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