For corporate policyholders exposed to significant long-tail and mass-tort bodily injury and property liability often stemming from their products, Bermuda Form excess liability insurance can be a powerful risk management tool. That said, the coverage comes with meaningful complexity that policyholders must understand before relying on it. 

Background: The Bermuda Form

The Bermuda Form general liability insurance came about in the mid-1980s when the US excess liability market essentially collapsed due to long-tail liabilities including asbestos and environmental property damage. American companies found it increasingly difficult to buy large amounts of liability insurance. A number of large US corporations capitalized two new Bermuda-based insurance carriers, ACE and XL, and developed the Bermuda Form of CGL insurance. Since the original policyholders were also investors, the form provides a balance between providing necessary coverage for policyholders facing large, longer tail claims while also giving insurers the ability to appropriately value and limit their liabilities for long-tail claims. 

The Bermuda Form policy provides broad coverage that typically sits at the umbrella level over what can be a significant self-insured retention (SIR). Today the Bermuda Form label describes the general wording family of the coverage, not the domicile or any single insurer. While there are different variations of the original form, they typically share some key features. 

Why is this important?

Mass tort and product liability claims have grown significantly over recent years. This includes an increase in high-stakes consolidated proceedings such as multidistrict litigation (MDLs), class actions, and state consolidation. Because of this, policyholders are engaging with their Bermuda Form coverage now more than ever.

As of April 1, 2026, the Judicial Panel on Multidistrict Litigation reported 158 active MDL dockets with 198,825 pending actions. Twenty-one of these MDLs each had 1,000 or more pending actions, accounting for 186,354 pending actions, or 94% of all pending MDL actions in active MDLs. The top five districts accounted for 74% of all pending MDL actions. Recent growth is driven by pharmaceutical and medical-device MDLs, which account for a significant share of the current docket. Other recent MDLs include platform and technology matters.¹ 

A highly organized and well-funded plaintiffs’ bar means that plaintiff firms can mobilize fast, producing significant numbers of plaintiffs in all jurisdictions. Increasingly sophisticated products and continuing change in statutes of limitations for abuse claims have heightened the importance of policyholders understanding their claims data and coverage terms. 

Key Structural Features of the Bermuda Form

The policy that has become known as the Bermuda Form has some unique features that must be carefully managed for the policyholder to obtain coverage and break through the self-insured retention. 

Trigger of Coverage

The trigger under Bermuda Form policies is neither occurrence-based nor pure claims-made but instead is a combination of the two. Occurrence based coverage is typically triggered by an injury or damage that occurs during the policy period. Claims-made coverage is triggered by a claim that is made during the policy period. Bermuda Form policies are typically triggered when the injury or damage takes place after a specified retroactive date identified in the policy as long as the policyholder notifies the insurer within the policy period or an extended reporting period if identified in the policy. 

Retroactive Date

As mentioned above, the Bermuda Form policy typically has a retroactive date before the start date of the policy itself. This is the earliest date from which losses or occurrences will be covered under the policy. The retroactive date defines the boundary of the policy's "occurrence window" where claims arising from occurrences before that date are excluded. This can be important because Bermuda Form policies are designed to cover long-tail liabilities where the harmful occurrence and the resulting injury and claim may be separated by years or decades. The retroactive date prevents the insured from obtaining coverage for pre-existing or legacy exposure that predates the writing of the policy and its negotiated terms.

We take direction from coverage counsel as to specific legal interpretations when dealing with the trigger of coverage, but we do understand the practical effects. 

• Occurrences on or after the retroactive date → potentially covered (subject to all other policy terms)
• Occurrences before the retroactive date → likely excluded, regardless of when the claim is made

Maintenance Deductible

Bermuda Form coverage often excludes claims that were “expected” by the policyholder, this is referred to as a maintenance deductible. A maintenance deductible reflects the idea that there is some level of injury that is expected as part of the ordinary course of the insured’s business and that these claims should be excluded from coverage or satisfying the self-insured retention. While this concept makes sense, it can prove to be very difficult to manage in real claim situations. 

Integration of Occurrences

The Bermuda Form policy introduced the concept of allowing a policyholder to batch, or integrate, multiple claims into one defined “integrated occurrence”. A single aggregate limit applies across all claims arising from a single integrated occurrence regardless of the number of claimants, policy years implicated, or jurisdictions involved. This feature is valuable to policyholders when they are facing product liability risks that may not be apparent initially. Aggregating, or batching, claims into one occurrence allows the insured to break through the SIR and reach the available coverage when the liability facing the insured is large. Depending on the specific policy language and the complexity of the claims and liabilities, there can sometimes be more than one way to define an integrated occurrence. 

Policyholders should be aware that notice of an occurrence must be provided to insurers within the policy period or applicable extended reporting period, and the mechanics of how and when that notice is given can materially affect coverage outcomes. Notice provisions are often detailed and worth careful review. Many policies permit an integrated occurrence to be defined on a retroactive basis. 

Although the definition of an integrated occurrence and the timing of when to declare one are ultimately legal questions requiring knowledgeable coverage counsel, those questions cannot be answered well without robust, granular claims data behind them. The decision of when to give notice is consequential because it can determine which policy year responds, the retention the policyholder must absorb, and the limits available. That decision is only as sound as the information supporting it. Policyholders therefore need detailed, well-organized claims data, monitored in real time. 

That data must be evaluated against the language of every policy in force during the period of the potential occurrence, and alongside other, unrelated occurrences, whether involving different products or different allegations tied to the same product, so the policyholder can recognize an integrated occurrence as it materializes and give notice at the moment that best protects its coverage.

Best Practices

Given the importance of Bermuda Form coverage to policyholders, and the complexity of the policy nuances, it is important to manage the claims data, which will inform when and if there is coverage. These cases can go on for many years and therefore proactively tracking and monitoring the claims and costs is key to successful recovery. Below are some best practices we like to share with policyholders:

• Collect and track claim data early and regularly monitor the status. This data can be used to value and maximize coverage later. The data necessary for pursuing coverage may be different from the data needed for the defense of the claims. It is always more efficient and cost-effective to collect data as claims are resolved.
  • Make sure to fully document all settlements. This means ensuring the electronic claim file is complete and that a proper database is designed to maintain both the data and related documents.
  • Be overly inclusive in the claim-related data that is captured. Always include dates of exposure or product use, date of injuries and related diagnoses, date of claim filing and disposition, and settlement amounts.
  • When capturing data, be as descriptive as possible and tag the documents from which the data was collected.
• Develop a mechanism for tracking the terms of the policy.
  • The exact notice provisions should be provided to coverage counsel so that the policyholder gives notice properly and in a timely manner.
  • Understand the exact definition of occurrence provided in the policy.
  • Record the reporting periods for an integrated occurrence including any extended periods and retroactive dates.

Inevitably, there will come a time when a policyholder finds itself unprepared. While it will take more effort and time, the claim information needed for coverage can be compiled from the historical litigation files. When this is necessary, develop clear and consistent procedures for the creation of a claim file and for collection of information. Where the volume of claims is large, statistical sampling can be an effective and defensible tool for managing the workload. Preparation puts policyholders in a stronger position when coverage issues arise.

Ultimately, whether a policyholder is covered is a legal question, but the answer often lives in the data. A policyholder that treats claims information as a static archive, pulled together only once a dispute is underway, has already ceded its advantage. The policyholder that invests in real-time claims analytics, continuously tracking claim velocity, severity, and emerging patterns across products and allegations, and mapping them against the language of every policy in force, is the one positioned to recognize an integrated occurrence as it forms and to give notice at the precise moment that maximizes its recovery. In a Bermuda Form world, the technology a policyholder builds before a loss is a significant factor in determining how much of its coverage is available when it needs it most. 

The views and opinions expressed in this article are those of the authors. This article is for educational and informational purposes only. It does not constitute professional, financial, or legal advice, and should not replace independent judgment.

Read Past Raising the Bar Issues

1. See United States Judicial Panel on Multidistrict Litigation. Pending MDL Reports Archive. Monthly “MDL Statistics Report - Distribution of Pending MDL Dockets by District” and “MDL Statistics Report - Distribution of Pending MDL Dockets by Actions Pending reports, Apr. 2025–Apr. 2026, https://www.jpml.uscourts.gov/pending-mdl-reports-archive. Figures and percentages calculated from reported pending action counts and active MDL docket counts.