Made a product that allegedly injured and killed motorists on U.S. highways, filed for bankruptcy and faced many personal injury claims you cannot afford to pay? Want to buy insurance for that and make the claimants go after your insurance company in a land far far away? No problem.
This is what happened with Takata airbags and an insurance policy Takata purchased before it filed for bankruptcy but after Takata was sanctioned with a recall order by the National Highway Traffic Safety Administration. The policy in question contained an express provision that it would apply to pay claims in the event a trustee pursued the policy proceeds for example. However, the policy also expressly provided that the trustee in such a case would have to sue in Japan under the Takata policy's forum-selection clause. This was essentially the decision by a Bankruptcy Judge in In re TK Holdings, Inc. (Green v. Mitsui Sumitomo Ins. Co., Ltd.), No. 17-11375 (BLS)Adv. Pro. No. 20-51004 (BLS), 2021 WL 6101496 (Bankr. D. Del. December 20, 2021).
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