The 'Non-Cumulation' Clause: Policyholders Cannot Have Their Cake and Eat it Too

General liability insurance carriers and policyholders have long wrestled with how to apportion the damages from claims involving bodily injury or property damage happening over long time spans, such as asbestos bodily injury and environmental property damage claims. Such claims are often called “long-tail” claims. Often, the cause and progression of injury or damage involved in such claims is not easy to determine. Policyholders, however, generally have the burden to prove that a loss “triggers” an insurance policy, i.e., that at least some injury or damage leading to the damages for which the policyholder seeks coverage took place during the periods of the relevant policy. Many courts have recognized that this burden can be difficult or impossible to meet for these types of claims. This fact has led many courts to accord a presumption to the policyholder that the injury or damage is continuous. Under this presumption, the injury or damage is deemed to have begun at