A federal appeals court on Monday upheld lower court rulings in favor of CNA Financial Corp. and Marsh LLC entities in asbestos cases filed in connection with World War II policies issued to a former shipping company.
A total of 47 lawsuits had been filed against Morristown, New Jersey-based Cosmopolitan Shipping Co. under the Jones Act, where former sailors alleged bodily injury resulting from asbestos on, or arising from, a vessel operated by the Cosmopolitan, according to court papers in Cosmopolitan Shipping Co. Inc. v. Continental Insurance Co., Marsh & McLennan Co.
Continental had provided shipping protection and indemnity insurance during World War II, according to the ruling.
The cases were settled by Cosmopolitan in 2017 for $4.6 million, according to the judgment of the 2nd US Circuit Court of Appeals in New York, which affirmed a decision of the US District Court in New York in favor of the insurer and the broker.
Cosmopolitan argued that because Continental chartered vessels on behalf of the United Nations Relief and Rehabilitation Administration, an international social welfare program that distributed aid to nations affected by World War II, Continental must have provided insurance covering the assessment of consent despite the fact that the relevant policy is missing and cannot be found, the ruling said.
“While it is not clear whether the applicable evidentiary standard for lost policy cases is a preponderance of the evidence or clear and convincing evidence … Cosmopolitan’s proffered secondary evidence fails even the less demanding preponderance of the evidence standard,” the appeals court panels’ decision said. to judge in Continental’s favor. The panel also ruled that Cosmopolitan’s claims against Marsh are time-barred.
Plaintiffs’ attorney Gregory J. Coffey of Coffey and Associates in Morristown, NJ, issued a statement saying it disagreed with the verdict with respect to both Continental and Marsh.
Of the Continental ruling, he said, “Most missing policy cases attempt to construe a policy based on secondary evidence. Here, the district court actually found the existence of the Continental policy … at trial but neither the Second Circuit nor the district court could construe its terms despite the language of prior and later marine protection and indemnity policies were much the same.”
Other attorneys in the case did not respond to requests for comment.