Full opinion text
OPINION AND ORDER MUKASEY, District Judge. This diversity suit concerns’liability insurance coverage for personal injury claims arising from exposure to asbestos. Defendant and third-party plaintiff Tread-well Corporation (“Treadwell”) installed and otherwise handled products containing asbestos between the 1940s and the 1980s, during some of which time Treadwell was covered by primary and excess liability insurance. In 1994, Treadwell and several of its liability insurers sought declaratory relief clarifying the extent to which Tread-well was entitled to indemnification for claims arising out of its asbestos-related activities (the “Asbestos Claims”). In 1997, however, Treadwell and all parties other than the United States Fire Insurance Company (“U.S.Fire”) and the Home Insurance Company (“Home Insurance”) settled their disputes. Treadwell’s third-party claims against U.S. Fire and its cross-claims against Home Insurance are the only disputes remaining. Both Treadwell and U.S. Fire now move for summary judgment pursuant to Fed. R.Civ.P. 56. By stipulation, the parties agree for the purposes of these motions that to the extent a person asserting a claim against Treadwell was injured by exposure to asbestos, he was injured at all points in time from initial exposure through the date his claim was filed or he died. (StipJ 3) Thus, the parties agree that some of those making claims against Treadwell (the “Asbestos Claimants”) might have suffered injury continuously from the 1940s, when Treadwell’s asbestos-related activities began, through the 1990s, when the most recent Asbestos Claimants filed suit — a span that includes a period of more than 20 years when Treadwell did not have insurance as well as a period of 20 years in which it was insured under both primary and excess policies. U.S. Fire provided Treadwell excess insurance from 1970 through 1972. By the terms of its policies, U.S. Fire agreed to assume coverage responsibility upon exhaustion of Treadwell’s primary insurance policies for-these years, which were issued by the American Mutual Liability Insurance Company (“AMLIC”). AMLIC is now insolvent, however, so Treadwell assumed in the 1997 settlement some of the liability that might otherwise have been borne by AMLIC. As discussed below, the principal question before the court, therefore, is whether this liability assumed by Treadwell can be allocated entirely to the AMLIC policy years, which would exhaust the AMLIC policies and trigger U.S. Fire’s coverage. Resolving this question, however, requires consideration of several subsidiary questions, including: (1) whether this court has authority to order allocation of Treadwell’s liability for the Asbestos Claims among all potentially liable parties; (2) whether Treadwell itself must assume some share of the liability for the years in which it was uninsured; and (3) what effects, if any, Treadwell’s settlements with its other insurers have on U.S. Fire’s liability. Whether, and to what extent, U.S. Fire is obligated to defend or indemnify Treadwell for any of the Asbestos Claims turns on the answers to these questions. For the reasons stated below, I conclude that the primary insurance polices underlying U.S. Fire’s policies likely are not yet exhausted and, therefore, that U.S. Fire has no present obligation to defend or indemnify Treadwell. Accordingly, U.S. Fire’s motion for summary judgment will be granted, and Treadwell’s denied, subject to confirmation of that likelihood through examination of the individual Asbestos Claims in conformity with the rulings below. I. The following relevant facts are undisputed, unless otherwise noted. Treadwell, a privately held corporation organized under Delaware law with its principal place of business in Connecticut, manufactures, repairs and maintains oxygen generators used on nuclear submarines. (Compl. ¶ 4; 9/16/98 Johnson Aff. ¶ 4) From sometime in the 1940s to sometime in the 1980s, however, Treadwell served also as a contractor or subcontractor, primarily at utility powerhouse sites in the New York metropolitan area. (9/16/98 Johnson Aff. ¶ 4) As part of this work, Treadwell installed and otherwise handled material containing asbestos. (Id; see Stip. ¶ 1) At no point did Treadwell manufacture, sell or distribute asbestos or asbestos-containing products. (Stip^ 1) In the late 1980s, Treadwell began to be named as a defendant in lawsuits alleging bodily injury arising from exposure to asbestos. (Id.) A large number of these Asbestos Claims have been settled, dismissed or otherwise disposed of, but as of August 31, 1998, there were more than 6000 such cases still pending against Treadwell, predominantly in New York state court. (9/16/98 Johnson Aff. ¶ 15;. see Antonucci Aff. ¶ 2; Stip. ¶ 1) Nearly all the plaintiffs in these cases allege exposure to asbestos prior to January 1, 1970, the effective date of U.S. Fire’s excess insurance policies. (Antonucci Aff. ¶ 4. But see U.S. Fire Local Rule 56.1 Statement ¶ 9 (noting that there “were at least 39 Powerhouse Claimants who did not begin working at the powerhouses until 1970 or later and so could not have been first exposed to asbestos at the powerhouses prior to 1970”)) A. Treadwell’s Insurance Coverage Treadwell was uninsured prior to 1967. (Reilly Aff. ¶ 46) However, from January 1, 1967 until July 1, 1986, a period Treadwell refers to as “the Coverage Block,” the company was insured under several primary comprehensive general liability (“CGL”) policies: From 1967 through 1969, and again from 1973 through June 20, 1983, Treadwell was' insured under policies issued by CIGNA Property and Casualty Insurance Company, its subsidiaries and affiliates (“CIGNA”); from 1970 through 1972, the company was insured by AMLIC; and from June 20, 1983 through July 1, 1986, Treadwell was insured by the Travelers Insurance Companies (“Travelers”). (Treadwell Local Rule 56.1 Statement ¶ 33) For all of this period, Treadwell was insured also under excess CGL policies, triggered by exhaustion of the underlying primary insurance: From 1967 through 1969, and again from 1973 through June 20, 1985, Treadwell was insured under excess CGL policies issued by CIGNA; and from 1970 through 1972, Treadwell was insured under excess CGL policies issued by U.S. Fire. (Id. ¶33) Thus, Treadwell’s insurance coverage for the years relevant to these motions was as follows: In addition to these insurance policies, which were purchased directly by Tread-well and which provided comprehensive coverage within their respective periods, Treadwell was a named insured on several policies purchased by utilities covering work done at their sites. The United States Fidelity & Guaranty Co. (“USF & G”) and the Commercial Union Insurance Company (“CU”) each issued primary insurance policies naming Treadwell as an insured. (9/16/98 Johnson Aff. ¶ 8(b)) Exhaustion of the USF & G policy triggered an excess policy issued by Home Insurance, which named Treadwell also as an insured. (Id.) B. The U.S. Fire Policies As noted, Treadwell purchased primary liability insurance from AMLIC for the years 1970, 1971 and 1972. For each of these three years, AMLIC’s coverage was limited to $100,000 per person, $300,000 per occurrence and $300,000 in “products aggregate” for bodily injuries. (Stip. ¶ 7 & Ex. C) To insure against liability above these limits, Treadwell purchased two excess umbrella policies from U.S. Fire, which together covered the same period. (Id. ¶¶ 4-6) The U.S. Fire policies, like Treadwell’s other insurance policies, are CGL policies, standard-form industry contracts dating to the 1960s. See American Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1500-03 (S.D.N.Y.1983) (discussing the history and purpose of the CGL policies), aff'd as modified by 748 F.2d 760 (2d Cir.1984). To the extent relevant here, those policies provide that U.S. Fire will indemnify Treadwell for “ultimate net loss” arising from personal injury or property damage in excess of the policy limits of the AMLIC policies, up to $10 million in the aggregate for each policy year and excluding “liability for contamination or pollution ... or any injuries or damages resulting therefrom.” (E.g., Stip. Ex. A at 1, 4-5) Additionally, the policies provide that U.S. Fire will “defend any suit” against Treadwell alleging a loss covered by the policies but “not covered” by the AMLIC policies or by “any other underlying insurance.” (Id. at 1) The policies define “ultimate net loss” as the total of the following sums “with respect to each occurrence”: (1) All sums which the insured, or any company as his insurer, or both, become legally obligated to pay as damages, whether by reason of adjudication or settlement, because of personal injury ... to which this policy applies, and (2) All expenses incurred by the insured in the investigation, negotiation, settlement and defense of any claim or suit seeking such damages.... (Id. at 2) In turn, the policies define “occurrence” as “a continuous or repeated exposure to conditions which unexpectedly and unintentionally causes injury to persons or tangible property during the policy period. Ml damages arising out of such exposure to substantially the same general conditions shall be considered as arising out of one occurrence.” (Id. at 5) Finally, to the extent relevant here, the U.S. Fire policies both contain “other insurance” clauses. Those clauses read in relevant part: “If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder ... the insurance hereunder shall be in excess of, and not contribute with, such other insurance.” (Id. at 3) C. Early Negotiations, the Interim Agreement and the Commencement of Litigation Soon after the Asbestos Claims were initiated, Treadwell provided notice and sought reimbursement for defense and indemnity against its principal primary insurers — CIGNA, Travelers and AMLIC. (9/16/98 Johnson Aff. ¶ 6) After initially disclaiming coverage, AMLIC declared insolvency and went into liquidation. (Id.) As a result, New York State Superintendent of Insurance Edward Muhl (the “Superintendent”) was appointed ancillary receiver for AMLIC. (Id.) With AMLIC in receivership, Treadwell, CIGNA and Travelers negotiated over defense and indemnification for the Asbestos Claims. (Id. ¶¶ 6-7) In December 1991, the three companies reached an agreement (the “Interim Agreement”) dividing the relevant costs. (Id. ¶7 & Ex. 2) First, CIGNA and Travelers agreed to assume two-thirds and one-third, respectively, of defense costs retroactive to May 7, 1991. (Id.) Second, with Treadwell substituting for AMLIC — presumably due to the latter’s insolvency — the three companies agreed to assume the following proportions of responsibility for indemnification: CIG-NA, 71.4%; Treadwell, 17.2%; and Travelers, 11.4%. (Id.) According to Treadwell, this allocation of indemnification responsibility was based on the proportion of years CIGNA, AMLIC and Travelers, respectively, were each “on the risk” during the so-called Coverage Block — that is, between January 1, 1967 and July 1, 1986, or the period of time in which Treadwell had insurance coverage. (Treadwell Local Rule 56.1 Statement ¶ 30) The letter memorializing the Interim Agreement, however, does not specify the basis for the parties’ allocation. (9/16/98 Johnson Aff. Ex. 2) Notwithstanding the Interim Agreement, Treadwell pressed to obtain coverage for its losses as the number of Asbestos Claims against it multiplied. (Id. ¶ 8) First, the company asserted claims in the AMLIC liquidation proceedings. (Id. ¶ 8(a)) Second, it provided notice and asserted claims for defense and indemnity against USF & G, CU and Home Insurance. (Id. ¶ 8(b)) Finally, by letter dated February 7, 1992 from its insurance broker, Treadwell notified U.S. Fire about its “potential asbestos liability” and requested the carrier’s “immediate attention” to the matter. (Reilly Aff. Ex. D; see 9/16/98 Johnson Aff. ¶ 9) U.S. Fire responded with a letter of its own, dated August 12, 1992. (Reilly Aff. Ex. E) In that letter, U.S. Fire rejected “any present duties” to indemnify or defend Treadwell, citing several grounds. (Id. at 4) First, noting its duty to indemnify only upon exhaustion of the underlying primary insurance, U.S. Fire contended that “there is no indication that underlying limits are at or near exhaustion.” (Id.) Second, acknowledging a duty to defend any suit alleging a covered loss not covered by other insurance, the carrier argued that “there is no indication that the alleged injury is not covered by underlying insurance.” (Id.) Finally, citing the “other insurance” provision in each of its policies, U.S. Fire asserted that, “until all underlying insurance is paid, no duties can arise under the U.S. Fire policies.” (Id.) In addition to providing these three reasons for rejecting “any present duties” under its policies, U.S. Fire raised several “additional serious questions of coverage” in its letter as follows: To the extent “personal injury” as defined by the policy did not take place there would be no coverage for the claims. Further, to the extent “personal injury” as defined by the policy took place but was not within our policy period, there would be no coverage for the claim. We reserve the right to deny coverage on this basis. .... Further, to the extent an “occurrence” as defined by the policies took place but was not within our policy period, there would be no coverage for the claims. We reserve the right to deny coverage on this basis. In addition, both policies contain a contamination and pollution exclusion .... To the extent the damage alleged falls within the purview of this exclusion there would be no coverage for the claim. We reserve the right to deny coverage on this basis. (Id. at 4-5) Further, U.S. Fire explicitly reserved “the right to assert any and all policy defenses including those discussed above and any not mentioned herein.” (Id.) In addition, the carrier asked Tread-well to keep it informed “if underlying limits are approaching exhaustion.” (Id.) USF & G, CU and Home Insurance declined coverage of Treadwell’s claims also. (9/16/98 Johnson Aff. ¶ 10) Thereafter, USF & G commenced this action, naming Treadwell, CU and Home Insurance as defendants and seeking a declaratory judgment as to the nature and extent of its obligations to Treadwell. Treadwell filed an answer, counterclaims and cross-claims, in essence seeking a declaratory judgment regarding the carriers’ obligations to defend and indemnify and seeking also damages for breach of contract. In May 1996, Treadwell impleaded Travelers, CIGNA, U.S. Fire and the Superintendent — the last as ancillary receiver for AMLIC — seeking a declaratory judgment as to the carriers’ obligations and, with respect to Travelers and CIGNA, seeking damages for breach of contract. To the extent relevant here, Treadwell’s initial third-party complaint acknowledged that “the limits of the underlying coverage for the excess policies” issued by U.S. Fire had “not yet been exhausted.” (1996 Compl. ¶¶ 56, 127) Nevertheless, Tread-well sought “a judicial declaration that upon the exhaustion of the underlying coverage ... U.S. Fire is required to indemnify Treadwell.” (Id. ¶ 130) D. Settlement with the Other Insurers Following commencement of the third-party action, Treadwell entered into settlement negotiations with several of its insurance carriers. (E.g., 9/16/98 Mensch Aff. Exs. A1-A4) These negotiations led, in April and May 1997, to two settlement agreements. First, Treadwell and the Superintendent agreed to settle all of Tread-well’s claims with respect to AMLIC (the “AMLIC Agreement”). (Stip. ¶9 & Ex. E) Pursuant to this agreement, the Superintendent agreed to pay Treadwell $475,-000 from the New York Property/Casualty Insurance Security Fund (the “New York Insurance Fund”). (Stip. Ex. E ¶ 1) In exchange, Treadwell gave the Superintendent and all other relevant parties a general release “from any liability for any past, present or future claim whatsoever arising under any and all insurance policies which may have been issued by [AMLIC] to Treadwell, known or unknown” — including the policies in effect from 1970 through 1972. (Id. If 2) Second, Treadwell entered into a “Settlement and Claims Handling Agreement” (the “Settlement Agreement”) with USF & G, CU, Travelers and CIGNA. (Stip. ¶ 11 & Ex. F (“Agrmt.”)) To the extent relevant here, the Settlement Agreement allocates responsibility for payment of defense and indemnity costs arising from the Asbestos Claims among Treadwell, USF & G, CU, Travelers and CIGNA. The Settlement Agreement specifies, first, that defense costs are to be allocated among the four settling insurers, with CIGNA assuming roughly three-quarters of the costs; Travelers, approximately 15%; and USF & G and CU, about 6% each. (Agrmt. at 10-14) Additionally, the Settlement Agreement designates CIGNA as the “Lead Insurer” and authorizes CIG-NA, in that capacity, to manage the defense and disposition of the Asbestos Claims on behalf of the other parties. (Id. at 29-32) Second, and more significant for these motions, the Settlement Agreement allocates responsibility among Treadwell and the four settling insurers for indemnity payments. Specifically, the Settlement Agreement provides that CIGNA will assume 71.4% of the relevant liability; Travelers, 13.4%; and Treadwell, 15.2%, with USF & G and CU contributing toward that figure with respect to claims arising from the specific sites covered by their policies. (Id. at 16-18) The Settlement Agreement specifies also that upon exhaustion of any primary insurer’s liability, “Treadwell and/or Treadwell’s excess and/or umbrella insurers” will assume that insurer’s liability prospectively. (Id. at 20-21, 23) Finally, the Settlement Agreement notes that any funds received by Treadwell through settlement with the Superintendent or U.S. Fire are “for the sole benefit of Treadwell,” unless such funds exceed Treadwell’s obligations under the Settlement Agreement, in which case the excess is to be allocated “solely to or for the benefit of the Insurers.” (Id. at 27-28) The Settlement Agreement specifies that the parties’ liability for both defense costs and indemnity is several. (Id. at 10, 16) However, it does not state explicitly the basis for its allocation of liability among the parties. Nevertheless, the Settlement Agreement includes as an exhibit a schedule listing the policies provided by the settling insurers to Treadwell (id. Ex. A), and from this list — along with provisions in the Settlement Agreement governing adjustments to the parties’ respective liabilities (e.g., id. at 20) — an allocation formula can be inferred: The shares of the indemnification payments assumed by CIGNA, Travelers and Treadwell under the Settlement Agreement correspond roughly to the proportion of time between January 1, 1967 and July 1, 1986 — the so-called Coverage Block — that each of CIG-NA, Travelers and AMLIC provided primary coverage to Treadwell. (See also Treadwell Local Rule 56.1 Statement ¶¶ 30-31) E. Correspondence Between Treadwell and U.S. Fire In the months leading up to the Settlement Agreement, Treadwell notified U.S. Fire several times, directly and indirectly, about the ongoing negotiations with the other carriers, and invited U.S. Fire to join the developing agreement or to negotiate its own. (9/16/98 Mensch Aff. Exs. A1-A9) Following these invitations, representatives of U.S. Fire communicated with representatives of Treadwell — in person, by telephone and by letter — requesting details regarding the Settlement Agreement and other information, including the liability limits of Treadwell’s primary insurance policies and the total payments made by Treadwell itself in connection with the Asbestos Claims. (E.g., id. Ex. A5) Tread-well provided this information, including, on March 19, 1997, “a chart reflecting Treadwell’s insurance coverage for the years 1967 — 1986, the years contained in the coverage block agreed among Tread-well, [CIGNA, Travelers, USF & G and CU].” (Id. Ex. A7; see also id. Exs. A6, A8) On April 10, 1997, Treadwell’s counsel, Martin Mensch, Esq., wrote to U.S. Fire’s counsel, Vincent Reilly, Esq., questioning the support for “two separate positions” which Reilly had indicated in a previous conversation U.S. Fire “may take ... in attempt to avoid its obligations under the excess policies issued to Treadwell”: first, that U.S. Fire was not obligated to “drop down” and cover the Asbestos Claims until all of Treadwell’s primary insurance coverage was exhausted; and second, that the “so called [sic ] pollution exclusion applies.” (Reilly Aff. Ex. AA) By letter dated May 20, 1997, Reilly repliéd, pointing to “the ‘Other Insurance’ clause of the policies” as support for U.S. Fire’s exhaustion argument, and opining that the pollution exclusion clause “speaks for itself.” (Id Ex. BB) F. The Parties’ Arguments for Summary Judgment As noted, Treadwell purchased primary liability insurance from AMLIC for the years 1970,1971 and 1972, up to a limit of $300,000 in “products aggregate” for bodily injury claims. As of September 1998, Treadwell had paid or agreed to pay an aggregate of $944,984 in indemnity payments, allegedly pursuant to the Settlement Agreement. (11/17/98 Johnson Aff. ¶ 4; see also 9/16/98 Johnson Aff. ¶ 20; 11/2/98 Mensch Aff. ¶ 10) Contending that this payment represents the amount it has paid in lieu of AMLIC for the three years that AMLIC provided primary coverage, Treadwell seeks a declaration that the AMLIC policies are now exhausted and, thus, that U.S. Fire must “drop down” to indemnify and defend the Asbestos Claims. (Compl.lffl 34, 39) In seeking summary judgment, U.S. Fire no longer presses the two positions taken by Reilly in his May 20, 1997 letter. Instead, it cites Stonewall Insurance Co. v. Asbestos Claims Management Corp-, 73 F.3d 1178, 1202 (2d Cir.1995), modified on denial ofreh’g, 85 F.3d 49 (2d Cir.1996), and argues for application of the so-called “proration-to-the-insured approach” to allocating liability among Treadwell and its insurers. According to this approach, U.S. Fire contends, Tread-well’s payments should be allocated evenly across all the years triggered by the Asbestos Claims for which the company did not have liability insurance — a period that for some of the Asbestos Claims probably stretches from sometime in the 1940s, when Treadwell’s asbestos-related activities began, through 1967 and, again, from 1970 through 1972. Allocated in this manner, U.S. Fire argues, Treadwell’s $944,984 in payments would not come close to exhausting the liability limits of the AMLIC policies, because only a small portion of those payments would count toward the years 1970, 1971 and 1972. Therefore, U.S. Fire asserts, it has no present duty to defend or indemnify Treadwell for any of the Asbestos Claims. In support of its summary judgment motion and in response to U.S. Fire’s motion, Treadwell raises the following arguments: (1) that U.S. Fire is barred by operation of various doctrines including waiver, equitable estoppel, judicial estoppel and collateral estoppel from arguing that Treadwell’s payments should be allocated to years prior to 1967; and (2) that assuming U.S. Fire may raise the proration-to-the-insured argument, Treadwell can nevertheless allocate all its payments to the 1970-1972 period, for any one of three reasons: (a) that the CGL policies Treadwell purchased from its primary insurers allow it to seek indemnification from any single insurer whose policy is triggered, subject only to the liability limits of that policy; (b) that even assuming allocation of liability among multiple insurers is warranted, allocation of liability to Treadwell for periods during which it was uninsured is improper; or (c) that U.S. Fire is bound by the terms of the Settlement Agreement and/or the AMLIC Agreement to accept allocation of some or all of Tread-well’s payments to the AMLIC policy periods. One way or another, in short, Treadwell argues that U.S. Fire is bound by Tread-well’s agreement with its primary insurers to allocate liability based on the number of years each insurer was on the risk during the Coverage Block. Allocated in this manner, Treadwell argues, its $944,984 in payments exhausts the three AMLIC policies underlying U.S. Fire’s excess insurance policies, thus triggering U.S. Fire’s obligations to defend and indemnify. II. Summary judgment is mandated when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In the present case, as the parties agree, no genuine issues of fact remain. (See U.S. Fire Mem. at’8; Treadwell Mem. at 51) There is no material issue of credibility, and all relevant facts are either stipulated or based on documents. Under these circumstances, either summary judgment or a decision on a stipulated record is appropriate. See, e.g., Uniroyal, Inc. v. Home Ins. Co., 707 F.Supp. 1368, 1372 (E.D.N.Y.1988). Indeed, final decision is especially appropriate where, as here, the dispositive issue involves construction of an insurance contract under New York law. See id. at 1372-78. III. Preliminarily, it is necessary to determine whether U.S. Fire is barred from arguing that the proration-to-the-insured approach applies. As noted, Treadwell argues that U.S. Fire is so barred by operation of various doctrines, including waiver, equitable estoppel, judicial estoppel and collateral estoppel. I disagree. A. Waiver Treadwell’s contention that U.S. Fire waived its proration-to-the-insured argument is premised on Reilly’s failure to mention the argument in his May 20, 1997 letter to Mensch, or to challenge in any way the use of the Coverage Block as the alleged basis for allocating liability among Treadwell and its primary insurers. (See Treadwell Mem. at 22-24) To support its contention, Treadwell quotes New York v. AMRO Realty Corp., 936 F.2d 1420 (2d Cir.1991), in which the Second Circuit stated that, under New York law, “an insurer is deemed, as a matter of law, to have intended to waive a defense to coverage where other defenses are asserted, and where the insurer possesses sufficient knowledge (actual or constructive) of the circumstances regarding the unasserted defense.” Id. at 1431; see also Luria Bros. & Co. v. Alliance Assurance Co., 780 F.2d 1082, 1090-91 (2d Cir.1986); General Accident Ins. Group v. Cirucci, 46 N.Y.2d 862, 864, 414 N.Y.S.2d 512, 514, 387 N.E.2d 223 (1979) (per curiam). Because Reilly raised only two arguments in his letter, Treadwell reasons, U.S. Fire should be deemed as a matter of law to have waived all other defenses. Reilly’s letter, however, did not constitute a notice of disclaimer within the meaning of New York law. Specifically, it was not an “unequivocal, unambiguous written notice, properly served.” Norfolk & Dedham Mut. Fire Ins. Co. v. Petrizzi, 121 A.D.2d 276, 277, 503 N.Y.S.2d 51, 53 (1st Dep’t 1986). To the contrary, Reilly’s letter merely responded to Mensch’s own April 10, 1997 letter, in which Treadwell’s counsel challenged two defenses to coverage that U.S. Fire had indicated it might raise. (See Reilly Aff. Ex. A) Thus, Tread-well itself determined the scope of Reilly’s letter, and the letter’s silence with respect to the issue of allocation cannot be considered “a voluntary and intentional relinquishment of a known right.” Albert J. Schiff Assoc., Inc. v. Flack, 51 N.Y.2d 692, 698, 435 N.Y.S.2d 972, 975, 417 N.E.2d 84 (1980); see also AMRO Realty, 936 F.2d at 1431 (“An ‘implied waiver ... exists when there is an intention to waive unexpressed, but clearly to be inferred from circumstances ....’” (quoting Kiernan v. Dutchess County Mut. Ins. Co., 150 N.Y. 190, 195, 44 N.E. 698 (1896)) (emphasis added) (omissions in original)); Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793, 795, 520 N.E.2d 512 (1988) (“Waiver is an intentional relinquishment of a known right and should not be lightly presumed.” (citation omitted)). Accordingly, there was no waiver. B. Equitable Estoppel Treadwell invokes also the doctrine of equitable estoppel, which “has been applied where the insured has been prejudiced as a result of unreasonable delay in failing to disclaim.” Greater N.Y. Sav. Bank v. Travelers Ins. Co., 173 A.D.2d 521, 522, 570 N.Y.S.2d 122, 123 (2d Dep’t 1991); see also Appell v. Liberty Mut. Ins. Co., 22 A.D.2d 906, 906, 255 N.Y.S.2d 545, 547 (2d Dep’t 1964), aff'd, 17 N.Y.2d 519, 267 N.Y.S.2d 516, 214 N.E.2d 792 (1966); cf. Albert J. Schiff, 51 N.Y.2d at 679-99, 435 N.Y.S.2d at 974-75, 417 N.E.2d 84 (distinguishing the doctrines of waiver and equitable estoppel). Treadwell argues that U.S. Fire delayed unreasonably before raising its challenge to the Coverage Block, and that this delay caused Tread-well prejudice insofar as it might not have entered into the Settlement Agreement knowing of U.S. Fire’s objections. (See Treadwell Mem. at 24-26; see also 9/16/98 Mensch Aff. ¶¶ 5-6) Equitable estoppel is inapplicable, however, for several reasons. First, despite the exchange of correspondence between the parties with respect to the Asbestos Claims going back as far as 1992, it does not appear that Treadwell formally asserted a claim for indemnity against U.S. Fire until at least May 1996, when the company filed its initial third-party complaint. Even then, Treadwell did not allege that it was actually entitled to coverage from U.S. Fire; instead, Treadwell acknowledged that the AMLIC polices had “not yet been exhausted” and sought a judicial declaration that “upon the exhaustion” of those policies, U.S. Fire would be obligated to provide coverage. (1996 Compl. ¶¶ 56, 127,130) In these circumstances, U.S. Fire arguably had no duty to disclaim. See U.S. Underwriters Ins. Co. v. Congregar tion B’Nai Israel, 900 F.Supp. 641, 646 (E.D.N.Y.1995) (“Under New York Law, compliance with a notice-of-occurrence or notice-of-claim provision in an insurance contract is a condition precedent to an insurer’s liability under the policy.”), aff'd without opinion, 101 F.3d 685, 1996 WL 280089 (2d Cir.1996); of. Kamyr, Inc. v. St. Paul Surplus Lines Ins. Co., 152 A.D.2d 62, 66-67, 547 N.Y.S.2d 964, 967 (3d Dep’t 1989) (holding that an excess insurer’s duty to disclaim is triggered only when there is “a reasonable possibility that [its] excess coverage may be reached” (internal quotation marks and citation omitted)). Moreover, notwithstanding Treadwell’s claim that the Coverage Block was established in the December 1991 Interim Agreement (see Treadwell Local Rule 56.1 Statement ¶ 29), it does not appear that Treadwell notified U.S. Fire about any “coverage block” until March 1997, when Treadwell provided to U.S. Fire “a chart reflecting Treadwell’s insurance coverage for the years 1967—1986, the years contained in the coverage block agreed among Treadwell, [CIGNA, Travelers, USF & G and CU].” (9/16/98 Mensch Aff. Ex. A7) Before that date, there is no mention in the record of any coverage block—or, more to the point, any indication that U.S. Fire was made aware of such a concept— nor any evidence that Treadwell itself had definitively settled upon 1967 to 1986 as the relevant period. Indeed, in its initial third-party complaint, Treadwell identified at least two insurance policies which it believed were in effect prior to 1967. (See 1996 Compl. ¶ 27) Additionally, the Superintendent produced evidence in July 1996 that Treadwell had filed claims for coverage based on AMLIC policies going back as far as 1947. (See Reilly Aff. Ex. B:I) At the same time, Treadwell was on notice prior to executing the Settlement Agreement that U.S. Fire believed Tread-well’s insurance coverage between the 1940s and 1967—or the lack thereof—was relevant to the allocation question. In a meeting on March 12, 1997, for instance, U.S. Fire’s counsel, Reilly, asked Treadwell’s counsel, Mensch, about Treadwell’s liability policies before 1968, because “these policies potentially were applicable to the asbestos claims.” (Reilly Aff. ¶ 46) Further, from additional conversations with Reilly prior to May 20,1997, “Mensch knew ... that U.S. Fire was taking the position that Treadwell could not unilaterally decide to select an AMLIC policy year and allocate all amounts paid into that year because under New York law, the loss should be spread over the period of exposure to claim or death.” {Id. ¶48) In fact, Treadwell arguably should have known as far back as 1992 that U.S. Fire might assert a defense relating to the method of allocating liability to different policy periods. In U.S. Fire’s August 12, 1992 letter rejecting “any present duties” to provide coverage'—a letter to which U.S. Fire referred repeatedly in subsequent correspondence {see, e.g., id. Exs. G-M, O-P)—the insurer reserved the right to make the type of argument it makes now. {See id. Ex. E) To be sure, U.S. Fire did not refer explicitly to “allocation” or “pro-ration-to-the-insured,” but it did state unequivocally that there would be no coverage for personal injuries or occurrences that took place outside the periods its policies were in effect. {See id. at 5) Even assuming arguendo that U.S. Fire unreasonably delayed raising the allocation argument, equitable estoppel is unwarranted because Treadwell was not prejudiced by this delay. Treadwell claims that it entered the Settlement Agreement in reliance upon its assumption that “the Coverage Block there provided was acceptable to all insurers—including U.S. Fire.” (9/16/98 Mensch Aff. ¶ 5) Had Treadwell been advised by U.S. Fire otherwise, counsel alleges, “Treadwell’s stance would have been different—the matter would certainly have been the subject of negotiation and a different outcome may well have resulted.” (Id.) Treadwell cannot have it both ways. Notwithstanding its claims of reliance, in contending that U.S. Fire unreasonably delayed raising the allocation argument, Treadwell asserted that the Coverage Block was established as early as December 1991, in the Interim Agreement—and that the Interim Agreement was, in turn, incorporated into the 1997 Settlement Agreement. (See Treadwell Local Rule 56.1 Statement ¶ 31) Thus, Treadwell appears to have been committed to the Coverage Block even before it notified U.S. Fire about the Asbestos Claims, in February 1992, and even longer before it first mentioned to U.S. Fire the idea of a “coverage block,” in March 1997. Accordingly, Treadwell’s claims of reliance on U.S. Fire’s alleged silence with respect to the Coverage Block ring hollow. Cf. Gilbert Frank, 70 N.Y.2d at 968, 525 N.Y.S.2d at 795, 520 N.E.2d 512 (rejecting the plaintiffs equitable estoppel argument in part on the ground that the plaintiff could not have relied on allegedly improper conduct by the defendant on a later date). C. Judicial Estoppel Next, Treadwell invokes judicial estoppel. Judicial estoppel “forbids a party from advancing contradictory factual positions in separate proceedings.” AXA Marine & Aviation Ins. (UK) Ltd. v. Seajet Indus. Inc., 84 F.3d 622, 628 (2d Cir. 1996). The doctrine “attempts to insure The sanctity of the oath and the integrity of the judicial process.’ ” Id. (quoting Bates v. Long Island R.R., 997 F.2d 1028, 1037 (2d Cir.1993)). Thus, a party invoking judicial estoppel must show that “(1) the party against whom judicial estoppel is being asserted advanced an inconsistent factual position in a prior proceeding, and (2) the prior inconsistent position was adopted by the first court in some manner.” Id.; accord Simon v. Safelite Glass Corp., 128 F.3d 68, 71-72 (2d Cir.1997). Here, Treadwell contends that judicial estoppel applies by virtue of a position advanced in 1986 by North River Insurance Company (“North River”), a U.S. Fire “affiliate,” in a case before the Superior Court of New Jersey styled Madsen & Howell, Inc. v. Sentry Insurance Company, No. L-021632-55 (Law Div., Middlesex County). (See 9/17/98 Warshauer Aff. ¶ 14 & Ex. K) In that case, which also involved insurance for personal injuries arising from exposure to asbestos, North River argued, inter alia, in favor of the approach to allocating liability taken by the U.S. Court of Appeals for the D.C. Circuit in Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981). In North River’s words, the Keene approach—which is discussed in further detail below—renders “each of the carriers on the risk from initial exposure to manifestation of injury jointly and severally liable to the insured.” (9/17/98 Warshauer Aff. Ex. K at 15 (emphasis added)) Endorsing this approach, Treadwell argues, is inconsistent with the position advanced by U.S. Fire here, namely that each insurer is liable for only its pro rata share of the total liability. Treadwell’s argument is without merit, however, for three reasons. First, and most significant, it is not apparent that the position taken by North River in Madsen & Howell is inconsistent with the position advanced by U.S. Fire here. To be sure, North River endorsed a precedent that would appear, in most respects, to support Treadwell’s present position. Nevertheless, at the same time, North River argued explicitly for proration of the defendant insurers’ obligations based on the number of years each insurer was on the risk. (See, e.g., id. at 15-16, 19-20) Indeed, the very title of the section of North River’s brief from which Treadwell quotes states as much explicitly: “POINT II: THE COVERAGE AND DEFENSE OBLIGATIONS TO BE AFFORDED BY EACH INSURER SHOULD BE ALLOCATED BASED UPON THE YEARS OF COVERAGE EXTENDED BY EACH INSURER DURING THE PERIOD BETWEEN INITIAL EXPOSURE AND MANIFESTATION.” (Id. at 15) Thus, the two positions are not irreconcilable. Cf. Simon, 128 F.3d at 72-73 (“[T]here must be a true inconsistency between the statements in the two proceedings. If the statements can be reconciled there is no occasion to apply an estoppel.”). Second, whatever inconsistency there is between the positions advanced by North River and U.S. Fire pertains to the construction of insurance policies. To the extent relevant here, however, such an issue is one of law, not fact. See, e.g., K. Bell & Assocs., Inc. v. Lloyd’s Underwriters, 97 F.3d 632, 637 (2d Cir.1996). Thus, it cannot be said that U.S. Fire has advanced an “inconsistent factual position,” making judicial estoppel inapplicable. AXA Marine, 84 F.3d at 628 (emphasis added); see TLC Beatrice Int’l Holdings, Inc. v. CIGNA Ins. Co., No. 97 Civ. 8589(MBM), 1999 WL 33454, at *7 (S.D.N.Y. Jan. 27, 1999) (holding that judicial estoppel applies only to inconsistent factual positions, not inconsistent legal positions); Seneca Nation of Indians v. New York, 26 F.Supp.2d 555, 565 (W.D.N.Y.1998) (same), aff'd, 178 F.3d 95 (2d Cir. 1999) (per curiam). Finally, it is Treadwell’s burden to show that the New Jersey Court adopted North River’s argument “in some manner.” AXA Marine, 84 F.3d at 628. Indeed, judicial estoppel “only applies when a tribunal in a prior proceeding has accepted the claim at issue by rendering a favorable decision,” because only then is “the risk of inconsistent results with its impact on judicial integrity ... certain.” Simon, 128 F.3d at 72. Nevertheless, there is no record whatsoever of the New Jersey Court’s decision in Madsen & Howell. Thus, the risk of inconsistent results is far from certain, and judicial estoppel is inapplicable. D. Collateral Estoppel Finally, Treadwell argues that U.S. Fire is collaterally estopped by the Supreme Court of Pennsylvania’s decision in J.H. France Refractories Co. v. Allstate Insur- anee Co., 534 Pa. 29, 626 A.2d 502 (1993). In that ease, to which U.S. Fire was a party defendant, J.H. France, a manufacturer and distributor of products containing asbestos, sought a declaratory judgment with respect to its insurers’ duties to defend and indemnify against asbestos-related personal injury claims. As here, it was determined that the claimants’ injuries spanned multiple policy periods as well as periods in which J.H. France did not have insurance. Thus, the Pennsylvania courts were faced with the very question presented here: how to allocate liability among multiple insurers and the insured for asbestos-related personal injuries. The trial court, holding for the defendant insurers, “prorated the obligations of all insurers whose policies were in effect throughout the development of the disease, including J.H. France as a self-insurer during periods when it did not purchase liability insurance.” Id. at 506 (describing the trial court’s holding). On appeal, however, the Supreme Court of Pennsylvania reversed. J.H. France, the Court held, could recover the full extent of its loss from any insurer or insurers on the risk, subject only to those insurers’ policy limits. See id. at 508-09. Because J.H. France was a Pennsylvania case, Pennsylvania law applies to the question of whether U.S. Fire is collaterally estopped. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Under Pennsylvania law, three requirements must be satisfied to bar a party from relitigating an issue previously decided: (1) the.“identical issue must have been necessary to final judgment on the merits” in the prior action; (2) “the party against whom the plea is asserted must have been a party, or in privity with a party, to the prior action”; and (3) the relevant party “must have had a full and fair opportunity to litigate the issue in question” in the prior action. Bortz v. Workmen’s Compensation Appeal Bd., 546 Pa. 77, 683 A.2d 259, 261 (1996) (citing Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309, 313 (1995)). That the issue in question might be “based on a cause of action different from the one previously litigated” has no effect on the inquiry. Id. (internal quotation marks omitted). Notwithstanding that several requirements for collateral estoppel are met here, to give J.H. France binding force in this case would be “unfair and inappropriate,” for two reasons. American Home Prods., 565 F.Supp. at 1490-91 n. 1; cf. D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 N,Y.2d 659, 664, 563 N.Y.S.2d 24, 26, 564 N.E.2d 634 (1990) (“Collateral estoppel ... is grounded on concepts of fairness and should not be rigidly or mechanically applied.” (citation omitted)). First, as discussed further in the next section of this opinion, other courts have considered the question of whether to allocate liability for continuous injury among multiple insurers and an insured, and have reached results different from the result reached in J.H. France. See, e.g., In re Prudential Lines, Inc., 158 F.3d 65, 83-87 (2d Cir. 1998) (discussing cases); Michael G. Doherty, Comment, Allocating Progressive Injury Liability Among Successive Insurance Policies, 64 U. Chi. L.Rev. 257, 269-85 (1997) (“Doherty, Allocating Progressive Injury Liability") (discussing several different approaches and citing cases); cf. American Home Prods., 565 F.Supp. at 1490-91 n. 1 (stating that collateral estop-pel is “unfair and inappropriate” when other courts have decided the same issue in different ways); Clark v. Troutman, 509 Pa. 336, 502 A.2d 137, 139 (1985) (holding that collateral estoppel does not apply when “ ‘[t]he issue is one of law’ ” and “ ‘a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws’ ” (quoting Restatement (Second) of Judgments § 28(2) (1982))). In fact, several such cases—including two decided under New York law—involved U.S. Fire itself. See, e.g., Stonewall Ins. Co. v. National Gypsum Co., No. 86 Civ. 9671(JSM), 1992 WL 163180 (S.D.N.Y. June 24, 1992) (applying New York and Texas law), aff'd in part, rev’d in part sub nom. Stonewall Ins. Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir.1995), modified on denial of reh’g, 85 F.3d 51 (2d Cir.1996); Diamond Shamrock Chems. Co. v. Aetna Cas. & Sur. Co., 258 N.J.Super. 167, 609 A.2d 440 (1992) (applying New York law); see also Missouri Pac. R.R. v. International Ins. Co., 288 Ill.App.3d 69, 223 Ill.Dec. 350, 679 N.E.2d 801 (1997) (applying Illinois law). Second, J.H. France was decided under Pennsylvania law, and relied exclusively for its reasoning on public policy and on the D.C. Circuit’s decision in Keene. See J.H. France, 626 A.2d at 507-09. By contrast, this case must be decided under New York law, which, as discussed below, differs in several potentially material ways from the law applied in J.H. France. The Pennsylvania Court’s “failure to apply the law of New York ... alone makes it appropriate to relitigate the issues.” American Home Prods., 565 F.Supp. at 1490-91 n. 1 (citing Restatement (Second) of Judgments § 88(7) & cmt. I (Tent. Draft No. 2, 1975)). Accordingly, collateral estoppel is inapplicable. IV. As noted, U.S. Fire and Treadwell have stipulated that to the extent an Asbestos Claimant was injured by exposure to asbestos, he was injured at all points in time from initial exposure through the date his claim was filed or he died. (Stip-¶ 3) Because Treadwell engaged in asbestos-related activities as early as the 1940s, the parties’ agreement means that for many of the Asbestos Claims, injury began before Treadwell first obtained insurance in 1967. In essence, therefore, the question at the heart of this case is whether this uninsured period is relevant in determining which entities are liable for the Asbestos Claims. That is, is Treadwell responsible for paying some share of the over-all liability attributable to the period before 1967? If so, some portion of the $944,984 that Treadwell has paid or promised to pay pursuant ,to the Settlement Agreement presumably would have to be allocated to the years before 1967, that portion to be determined on the basis of when each underlying claimant’s injury began. Allocated in such a manner rather than entirely to the AMLIC policy period, Treadwell’s payments would probably not yet exceed $300,000 for any of the AMLIC policy years, and U.S. Fire’s excess policies would not yet be triggered. A. Allocation in the First Instance ? Before considering whether any liability should be allocated to Treadwell for the period prior to 1967, however, it is necessary to consider an analytically prior issue: whether this court can allocate liability at all. Treadwell contends that under the CGL policies it purchased from its primary insurers, it is permitted to demand full coverage for continuous injury claims from any one insurer whose policy is triggered, subject only to that insurer’s liability limits. From this entitlement, Treadwell reasons, it follows that the company can allocate all its payments to the 1970-1972 period, notwithstanding the absence of insurance prior to 1967, thus exhausting the AMLIC policies and triggering U.S. Fire’s coverage. (See, e.g., Treadwell Mem. at 33-38) In response, U.S. Fire contends that each insurer is responsible for only its pro rata share of the liability for each Asbestos Claim. Thus, U.S. Fire concludes, Treadwell cannot “arbitrarily” decide what amount of liability is attributable to the AMLIC policy years; instead, Lability for each Asbestos Claim must be allocated in the first instance across all the years the Asbestos Claimant’s injury occurred, including the years prior to 1967. (See, e.g., U.S. Fire Mem. at 9-14) Although much ink has been spilled during the last two decades on the question of whether allocation of liability for continuous injury is appropriate, no consensus has emerged. See generally Doherty, Allocating Progressive Injury Liability, supra; Garrett G. Gillespie, Note, The Allocation of Coverage Responsibility Among Multiple Triggered Commercial General Liability Policies in Environmental Cases: Life After Owens-Illinois, 15 Va. Envtl. L.J. 525 (1996) (“Gillespie, Allocation of Coverage ResponsibilityCourts are divided between the approaches urged by the parties here. Some courts have adopted the pro rata approach urged by U.S. Fire, which allocates liability for a particular claim among all triggered policies in the first instance. See, e.g., Lafarge Corp. v. National Union Fire Ins. Co., 935 F.Supp. 675, 687-88 (D.Md.1996); Stonewall, 1992 WL 163180, at *1; Uniroyal, 707 F.Supp. at 1391-93; Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., No. X04CV 950115305S, 1999 WL 244642, at *6-9 (Conn.Super.Ct. Apr. 16, 1999); Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 650 A.2d 974, 985-94 (N.J. 1994); Northern States Power Co. v. Fidelity & Cas. Co. of New Fork, 523 N.W.2d 657, 662-64 (Minn.1994); cf Gulf Chem. & Metallurgical Corp. v. Associated Metals & Minerals Corp., 1 F.3d 365, 371-73 (5th Cir.1993) (allocating defense costs pro rata); Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir.1980) (same), clarified, 657 F.2d 814, 816 (6th Cir.1981). Under this approach, the insured can recover only a share of its over-all loss from any one insurer, that share to be determined on the basis of some facially objective factor, such as the insurer’s proportion of time on the risk or proportion of total policy limits. See, e.g., Lafarge, 935 F.Supp. at 688 (allocating liability based on each insurer’s proportion of time on the risk); Northern States, 523 N.W.2d at 663 (same); Continental Ins. Co. v. Morgan, Olmstead, Kennedy & Gardner, Inc., 83 Cal.App.3d 593, 608, 148 Cal.Rptr. 57, 66 (1978) (allocating liability for defense costs based on the ratio of each insurer's policy limits to the sum of all policy limits); Owens-Illinois, 650 A.2d at 995 (allocating liability based on “both the time on the risk and the degree of risk assumed” by each insurer). See generally Armstrong World Indus., Inc. v. Aetna Cas. & Sur. Co., 45 Cal.App.4th 1, 51-53 & n. 16, 52 Cal.Rptr.2d 690, 707-08 & n. 16 (1996) (discussing different apportionment formulae and citing cases). If one of the insurers is insolvent, the insured is saddled with that insurer’s share of. the liability. See Koppers Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1449-50 n. 9 (3d Cir.1996). Other courts have concluded that each triggered policy is. jointly and severally liable for the insured’s liability and, thus, that the insured can collect under any one triggered policy the full amount of indemnity that is due, subject only to that policy’s liability limits. See, e.g., Prudential Lines, 158 F.3d at 83-86; ACandS, Inc. v. Aetna Cas. & Sur. Co., 764 F.2d 968, 974 (3d Cir.1985); Keene, 667 F.2d at 1048; Dayton Indep. Sch. Dist. v. National Gypsum Co., 682 F.Supp. 1403, 1410-11 (E.D.Tex.1988), rev’d on other grounds sub nom. W.R. Grace & Co. v. Continental Cas. Co., 896 F.2d 865 (5th Cir.1990); Lac DAmiante Du Quebec, Ltee. v. American Home Assurance Co., 613 F.Supp. 1549, 1561-63 (D.N.J.1985); Sandoz, Inc. v. Employer’s Liab. Assurance Corp., 554 F.Supp. 257, 266-67 (D.N.J.1983); J.H. France, 626 A.2d at 508-09. Under this approach, “(i) the insured selects a single policy from which to seek indemnification, (ii) that insurer pays the claim, and (iii) then the insurer seeks contribution from other liable insurers under the ‘other insurance’ provisions of the-policies or under the common law doctrine of contribution.” Prudential Lines, 158 F.3d at 84 (citing Keene, 667 F.2d at 1049-50 & n. 35; ACandS, 764 F.2d at 974; J.H. France, 626 A.2d at 509). Thus, the risk that an insurer is insolvent is transferred from the insured to one or more of the insured’s other carriers. See Koppers, 98 F.3d at 1449-50 n. 9. Notwithstanding the debate over these two approaches, the difference between them for the purposes of this ease is not as great as Treadwell and U.S. Fire appear to believe. Under either approach, an insurer is liable for only its share, however calculated, of the over-all liability. See, e.g., Koppers, 98 F.3d at 1449-50; Keene, 667 F.2d at 1050; J.H. France, 626 A.2d at 509. The only difference is when such allocation occurs: Under the pro rata approach, allocation occurs when the loss is paid in the first instance; under 'the joint and several approach, by contrast, allocation occurs in a second proceeding, when the loss becomes the subject of contribution among policies and insurers. See, e.g., Prudential Lines, 158 F.3d at 85. Thus, it does not follow, as Treadwell appears to reason, that if the joint and several approach is warranted, Treadwell will be off the hook for the years in which it lacked insurance; instead, the question of whether to prorate to Treadwell would merely be postponed to a second proceeding. Although allocation occurs under both approaches, the decision to adopt one approach rather than the other can have at least two financial consequences for the parties in a case. First, as noted, the choice determines whether the insured or its insurers bears the risk of insurer insolvency. See Koppers, 98 F.3d at 1449-50 n. 9; Kenneth S. Abraham, Environmental Liability Insurance Law 122 (1991). Second, the choice may affect the number of deductibles that apply to each claim. See, e.g., Prudential Lines, 158 F.3d at 86; Koppers, 98 F.3d at 1449-50 n. 9; Lac D’Amiante, 613 F.Supp. at 1562; Abraham, supra, at 121 n. 45. But neither potential consequence is present in this case. By entering into the Settlement Agreement, Treadwell voluntarily assumed responsibility for the insolvency of AMLIC. And whatever deductibles might have applied to Treadwell’s liability were presumably (because neither party mentions them in its papers) incorporated into the Settlement Agreement with Treadwell’s primary insurers; because U.S. Fire sold Treadwell excess insurance, the only prerequisite to U.S. Fire coverage relevant here is exhaustion of the underlying primary insurance. B. Prudential Lines Even though Treadwell’s ultimate conclusion — that it is not liable for the years it was uninsured — does not follow from its starting premise — that joint and several liability applies — there is need nevertheless to consider its arguments against allocation, if only for formalistic reasons. That is, if the joint and several approach applies, as Treadwell argues, another court in a later proceeding could still consider the proration-to-the-insured issue and order Treadwell to contribute for the years it lacked insurance. But, under that approach, this court, in this proceeding, could not do either. The logical starting point for this inquiry is the Second Circuit’s recent decision in Prudential Lines. In that case, the trustee of a shipping line in bankruptcy, Prudential Lines, Inc. (“Prudential”), sued the American Steamship Owners Mutual Protection and Indemnity Association (“American Club”), seeking indemnification for asbestos-related bodily injury claims asserted against Prudential. For the most part, American Club insured Prudential for the full period of the underlying claimants’ injuries, so the issue of allocation among multiple insurers was not presented. See Prudential Lines, 158 F.3d at 85. Nevertheless, seeking to limit the number of deductibles applicable to each claim, Prudential asserted a contract right to full indemnification from any single triggered policy for claims arising out of injury that spanned two or more policy periods. See id. at 83. In response, American Club argued that payment of each insurance claim should be allocated in the first instance among all triggered policies, with the result that “one deductible would apply per claim as well as per triggered policy. ” Id. at 86; see also id. at 83. The Bankruptcy Court and the District Court both held in favor of Prudential on the allocation issue, basing their decisions in large part on the plain language of the policies, which provided for indemnification of “any loss” that Prudential “shall become liable to pay.” See In re Prudential Lines, Inc., 148 B.R. 730, 743-45 (Bankr. S.D.N.Y.1992); In re Prudential Lines, Inc., 170 B.R. 222, 232-36 (S.D.N.Y.1994). On appeal, the Second Circuit affirmed, but on seemingly different grounds. The Court began its analysis with a discussion of the two different approaches to allocation. See Prudential Lines, 158 F.3d at 84-85. Noting that “[bjoth approaches allow allocation among policies at some transactional point, i.e., either when the loss is paid, or when it becomes the subject of contribution among policies and insurers,” the Court explained that courts adopting the pro rata allocation approach “have generally been motivated by considerations of equity and policy, rather than contract wording.” Id. at 85. Specifically, the Court listed three such considerations. First, the panel explained, courts have “sought to ensure that a single insurer underwriting a small proportion of the risk does not get saddled with the full loss ...., a loss that may prove uncollectible from other companies.” Id. (citing Uniroyal, 707 F.Supp. at 1392; Owens-Illinois, 650 A.2d at 992-93). Second, courts enforce allocation “to require the insured to absorb losses for periods when it was self-insured.” Id. (citing Owens-Illinois, 650 A.2d at 989). Third, courts see allocation in the first instance as more efficient, “reasoning that any contribution proceeding will involve many of the same issues that are raised in the initial liability proceeding, and that it is more efficient to deal with these issues in a single proceeding.” Id. (citing Lafarge, 935 F.Supp. at 688). After listing these considerations, the Court turned to the facts of the case before it, noting, with a textual sigh of relief, that “Fortunately, a number of factors that often complicate the inquiry are absent here.” Id. at 85. That is, Prudential had no periods of self-insurance and, for virtually the entire span of relevant years, only one insurer. See id. Thus, if joint and several liability applied, there was no danger that American Club would be saddled with more than its share of liability — or with liability that should have been assumed by Prudential itself — and no danger of additional litigation. See id. To the extent American Club wanted to allocate liability among its own policies, it could develop an “internal allocation mechanism” to do so — in other words, allocation was an issue merely of bookkeeping. Id. at 85-86. Noting that the real “financial significance” of the allocation issue lay in its impact on the number of deductibles that would apply to each claim against Prudential, the Second Circuit then concluded: Given: (i) the policy’s broad language covering “any loss [or] damage” which Prudential becomes liable to pay resulting — presumably even in part — -from injuries occurring during the policy period; (ii) the absence of a contractual intent to require allocation of liability among policies in the first instance; and (iii) the lack of any compelling policy or equitable considerations favoring allocation, we decline to read the policies in a way that would have the (probably unintended) effect of multiplying the deductibles applicable to each claim. We hold that, in the circumstances presented, Prudential has the right to demand that a policy pay full coverage for each insurance claim in which the underlying Claimant suffered ... asbestos injury during the policy period. Id. at 86 (emphasis added) (alteration in original); cf. Reichhold Chems., Inc. v. Hartford Accident & Indem. Co., 1998 WL 811592 No. X03-CV-88-0085884-S, slip op. at 21 (Conn.Super.Ct. Feb.ll, 1999) (