Ortiz v. Fibreboard Corp., 527 U.S. 815, 9 (1999)

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Cite as: 527 U. S. 815 (1999)

Opinion of the Court

expiration dates. Id., at 268a-269a. The decree also required the insurers to pay the full cost of defense for each claim covered. Ibid. The insurance companies appealed.

With asbestos case filings continuing unabated, and its secure insurance assets almost depleted, Fibreboard in 1988 began a practice of "structured settlement," paying plaintiffs 40 percent of the settlement figure up front with the balance contingent upon a successful resolution of the coverage dispute.2 By 1991, however, the pace of filings forced Fibre-board to start settling cases entirely with the assignments of its rights against Continental, with no initial payment. To reflect the risk that Continental might prevail in the coverage dispute, these assignment agreements generally carried a figure about twice the nominal amount of earlier settlements. Continental challenged Fibreboard's right to make unilateral assignments, but in 1992 a California state court ruled for Fibreboard in that dispute.3

Meanwhile, in the aftermath of a 1990 Federal Judicial Center conference on the asbestos litigation crisis, Fibre-board approached a group of leading asbestos plaintiffs' lawyers, offering to discuss a "global settlement" of its asbestos

2 Because Fibreboard's insurance policy with Continental expired in 1959, before the global settlement the settlement value of claims by victims exposed to Fibreboard's asbestos prior to 1959 was much higher than for victims exposed after 1959, where the only right of recovery was against Fibreboard itself. See In re Asbestos Litigation, 90 F. 3d 963, 1012-1013 (CA5 1996) (Smith, J., dissenting).

3 Id., at 969, and n. 1 (citing Andrus v. Fibreboard, No. 614747-3 (Sup. Ct., Alameda Cty., June 1, 1992)). Continental appealed, and, after the Global Settlement Agreement was reached in this case, but before the fairness hearing, see infra, at 827, a California appellate court reversed. See 90 F. 3d, at 969, and n. 1 (citing Fibreboard Corp. v. Continental Casualty Co., No. A059716 (Cal. App., Oct. 19, 1994)). Continental and Fibre-board had each brought actions seeking to establish (or challenge) the validity of Fibreboard's assignment-settlement program, but only Andrus produced a definitive ruling as opposed to a settlement. See App. to Pet. for Cert. 288a-290a.


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