Insurer’s Attempt To Avoid Continuous Trigger Based On “Credible Scientific Evidence” Rejected
A Pennsylvania trial court, after granting an insurer’s motion to reconsider, reinstated its prior ruling rejecting an insurer’s attempt to avoid continuous trigger by presenting “credible scientific evidence” that the progression of asbestos-related diseases no longer begins with the initial exposure to asbestos.
Mine Safety Appliance Company (“Mine Safety”) had been sued in numerous underlying actions wherein plaintiffs alleged that their exposure to Mine Safety products caused them to develop mesothelioma or asbestos-related lung cancer. The North River Insurance Company (“North River”) issued Mine Safety occurrence-based policies that did not contain asbestos exclusions. North River sued Mine Safety seeking to limit or eliminate its obligation to provide insurance to Mine Safety regarding the underlying asbestos-related actions being filed against Mine Safety.
In J. H. France Refractories Co. v. Allstate Ins. Co., 534 Pa. 29 (1993), the Pennsylvania Supreme Court adopted “continuous trigger” with regard to asbestos-related claims. Under “continuous trigger,” all occurrence-based policies from the date of first exposure to asbestos to manifestation of disease are triggered and must respond to a claim. The J.H. France court also adopted the “all sums” methodology, which generally allows a policyholder to pick any triggered policy and demand that the selected policy pay all defense or indemnity relating to the claim at issue. The combination of “continuous trigger” and “all sums” typically results in a policyholder having full coverage for asbestos-related claims.
North River argued that the continuous trigger approach adopted in J.H. France should no longer govern coverage in mesothelioma and asbestos-related lung cancer claims. In support of its argument, North River “offered credible scientific evidence which could support a finding that there is no longer scientific support for the opinion that the progression of asbestos-related diseases begins with the initial exposure to asbestos.” Thus, according to North River, the trial court should not automatically apply the continuous trigger approach adopted in J.H. France.
In essence, North River argued that there is no “bodily injury” at the time an underlying plaintiff is first exposed to asbestos. Instead, “bodily injury” occurs at manifestation of the disease. The practical effect of this argument is that occurrence-based insurers have no obligation to cover any asbestos-related claims, because manifestation of disease typically occurs during periods when the policyholder could only purchase policies that contained asbestos exclusions. In other words, the policyholder would be totally uninsured against asbestos-related claims.
The trial court rejected North River’s argument, finding that a recent decision by the Pennsylvania Supreme Court made clear that “continuous trigger” was still the law of Pennsylvania. In addition, the trial court observed that the Supreme Court in J.H. France chose continuous trigger because the “period of coverage was easily determined and best represented what the contracting parties intended.” In other words, the Supreme Court’s continuous trigger decision was not based solely on considering the language of the policy, but also included “practical and equitable considerations.” The North River Ins. Co. v. Mine Safety Appliance Co., Case No. GD-10-007432, Allegheny County, PA (June 9, 2015).