WV Sup. Ct. / Pollution
Continuous Trigger Theory Applies to Long-Tail Claims
The West Virginia Supreme Court, in response to a certified question from the Fourth Circuit, concluded that for “long-tail claims” the continuous trigger theory applies to determine when bodily injury occurs under an occurrence-based CGL policy. The continuous trigger is appropriate because the policy language is ambiguous as to when coverage is triggered when latent and/or progressive injury is alleged.
Sistersville Tank Works, Inc., a manufacturer and installer of storage tanks, was named as a defendant in several lawsuits alleging that its products caused cancer due to exposure to various chemicals. Sistersville tendered the lawsuits to Westfield Insurance Company, which had issued CGL policies to it between 1985 and 2010. Westfield denied the tender.
Coverage litigation ensued and Westfield was granted summary judgment by the trial court, which found that coverage was triggered when a plaintiff was first exposed to a chemical and when the disease manifested, but not during the dormant years between these events. Sistersville appealed to the Fourth Circuit, which certified the question to the West Virginia Supreme Court since there was no controlling appellate decision on the issue.
“Under the continuous-trigger theory, when a claim is made alleging a progressive injury caused by chemical exposure or other analogous harm, every occurrence-based policy in effect from the initial exposure, through the latency and development period, and up to the manifestation of the bodily injury, sickness, or disease, is triggered and must cover the claim.” Westfield Ins. Co. v. Sistersville Tank Works, Inc., No. 22-848, 2023 WL 7391646 (W. Va. Nov. 8, 2023).