Viking Pump v. Century Indemnity Co
In Viking Pump v. Century Indemnity Co., 2 A.3d 76 (Del. Ch. 2009), the Delaware court correctly noted that the New York Court of Appeals has not adopted a definite position upon whether pro rata or joint and several allocation applies to multiple insurance policies covering the same loss.
The court noted, again correctly, if somewhat derisively, that the Court of Appeals has found that the issue is to be governed by the language of the policies at issue. Id. at 114-15.
After turning its derision to federal court allocation decisions which interpreted New York law and held for pro rata distribution, id. at 116-7, the Delaware court returned to critiquing the Court of Appeals in its decision in Continental Casualty Co. v. Allstate Ins. Co., 98 N.Y.2d 208, 223-25, 774 N.E.2d 687, 746 N.Y.S.2d 622 (2002).