Timothy Ross was exposed to asbestos from 1965 to 1977 while employed by NEIC. He developed symptoms related to the exposure in 2012, and died from mesothelioma in 2013.
After Ross's death, his widow sued NEIC. Liberty Mutual insured NEIC from 1973 to 1983. It asserted that a continuous trigger and pro rata allocation theory applied. Under a continuous trigger theory, coverage is triggered from the time of exposure to a hazardous substance to the time when physical harm from such exposure becomes manifest. In pro rata allocation, in a long-tail loss the loss is allocated among all insurers who provided insurance during any time the loss was occurring, and the loss is frequently allocated to the insured for periods where it had no or insufficient insurance. So Liberty Mutual was arguing that where it provided coverage for ten years out of 47 years of total exposure, it was liable for about a fifth of the total damages.
In Ross v. Liberty Mutual Insurance Co. (behind a paywall) (Suffolk Superior Ct. May 14, 2025, Kazanjian, J.) a judge of the Suffolk Superior Court agreed with Liberty Mutual. The court accepted expert testimony that damage from asbestos fibers is continuous—from initial exposure through latency, diagnosis, and death. Relying on Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009) and New England Insulation Co. v. Liberty Mut. Ins. Co., 83 Mass. App. Ct. 631 (2013), the court held that coverage is triggered across all policy years during which injury occurred. It rejected Ross’s argument that injury was not continuous during the latency period and found that Liberty Mutual’s pro-rata allocation was consistent with Massachusetts law.
The court rejected Ross’s claim that Liberty Mutual owed post-judgment interest on the full judgment. It ruled that the insurer was responsible for interest only on the portion of the judgment that was allocable to its coverage periods.
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