The “Unavailability Exception” is Unavailable to Policyholders, According to New York Court of Appeals

This decision firmly establishes New York as a jurisdiction not recognizing the “unavailability exception."

September 10, 2018
William S. Bennett & Warsame Y. Hassan - Saxe Doernberger & Vita, P.C.

The New York Court of Appeals recently upheld a prior appellate division decision finding that policyholders facing environmental claims, spanning multiple years, cannot force their insurers partially on the risk to provide coverage for years where the insurers did not issue policies, even though pollution insurance was unavailable in the marketplace.

In Keyspan Gas E. Corp. v. Munich Reins. Am., Keyspan Gas East Corporation (“Keyspan”) argued other insurers should cover the period when pollution property insurance was unavailable in the marketplace, according to their pro-rata share of coverage. 31 N.Y.3d 51 (2018). In a unanimous decision, the Court emphasized the Appellate Division’s prior ruling that stated, “spreading risk should not by itself serve as a legal basis for providing free insurance to an insured.”

Mr. Bennett may be contacted at


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