The Maze of Mega-Coverage Litigation

Abstract

Over the last two decades, the rise of mass tort liability and the enactment of CERCLA1 have transformed both tort and insurance litigation. Class and multidistrict tort actions involving thousands of personal injury claimants, and disputes over environmental cleanup liability involving hundreds of millions of dollars, are now commonplace. With this new civil liability, however, has come a less noticed but also very significant development: massive insurance coverage litigation between the companies that are subject to the new civil liability and their liability insurers. Judge Jack Weinstein, whom this issue of the Columbia Law Review honors, has rendered important decisions in both fields.2 The new civil liability has received much scholarly attention, including an entire book emphasizing Judge Weinstein's role in the Agent Orange case.3 But the megainsurance coverage disputes that typically accompany mass tort and CERCLA litigation have not been studied as extensively. In this Essay, I step back from the doctrinal details of this liability insurance litigation in order to sketch its principal characteristics and generate some insights about the way it has worked in practice.4 This