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ALI Restatement Misstates Law on Long-Tail Harm Claims, Law360

March 29, 2018

A restatement of the law is “primarily addressed to courts” with an “aim” to provide a “clear formulation[] of common law and its statutory elements or variations and reflect the law as it presently stands or might appropriately be stated by a court.” A restatement’s articulation of black-letter legal rules is “expected to aspire toward the precision of statutory language,” while also “reflecting the flexibility and capacity for development and growth of the common law.”

The current draft of the first Restatement of the Law on Liability Insurance is faithful to these principles in many respects; however, the draft section on “allocation” contravenes these principles by purporting to proclaim a default “pro rata” “rule” for “Allocation in Long-Tail Harm Claims Covered by Occurrence-Based Policies,” that may be “altered” by a “term” in the policy, “except to the extent that the term cannot be harmonized with an allocation term in another policy that provides coverage for the claim.”

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