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1 MEALEY S LITIGATION REPORT: Insurance Vol. 21, #24 April 24, 2007 Commentary Is Injury In Fact Really A Trigger In Insurance Coverage? By Vance A. Woodward [Editor s Note: Vance A. Woodward is a senior associate with the law firm of Carroll, Burdick & McDonough LLP in its San Francisco offi ce. He specializes in environmental and mass tort insurance coverage and badfaith litigation. He may be reached at or This commentary refl ects the author s opinion, not those of his law firm or Mealey Publications. Copyright 2007 by the author. Response articles are welcome.] I. Introduction Typically, an insurance policy limits coverage to specifically identified events that happen during the policy s effective period. Some policies provide coverage for claims made during the policy period, some provide coverage for liability in respect of injuries during the policy period, and so on. Trigger is an insurance coverage term not found in insurance policies but commonly used by jurists and those in the insurance industry when analyzing what must happen during the policy period in order to obtain coverage. If the claim, accident, occurrence or injury as governed by the policy language happen during a policy s effective period, that policy will be triggered. This paper focuses on those policies that are triggered by injury or damage that happens during the policy period. In most factual scenarios, the trigger analysis is simple because the timing of the triggering event is discrete and relatively short in duration. Furthermore, the cause of injury or damage and the actual incidence or manifestation of the injury or damage often happens within a short period of time, all during the effective period of a single policy. In those situations, only one policy is typically triggered. When, however, injury or damage is latent or progresses over several policy periods, or when the cause and the result of injury or damage happen in different policy periods, complications arise. Well-known examples are bodily-injury claims arising from exposure to slow-acting harmful materials such as asbestos, silica or benzene. Other examples entail latent defects in construction work and the slow release of pollution into the environment. In those situations, harm may not manifest itself for decades after exposure starts and sometimes decades after exposure ends. Such claims are known as latent-injury or long-tail claims. Because the cause and result of events, accidents or occurrences giving rise to long-tail claims may happen during the effective periods of different policies, one will be forced to take a closer look at the actual policy language to determine which policies are triggered by a long-tail claim. A whole nomenclature has developed around the trigger analysis of long-tail claims. Under the exposure theory, policies in effect during exposure to the harmful substance, and only those policies, are triggered by a long-tail claim. Under the manifestation theory, policies in effect throughout the time an injury manifests itself, and only those policies, are triggered by a long-tail claim. Finally, under the continuous theory, all policies are triggered that are in effect from the fi rst exposure through manifestation until the claimant brings a claims, dies or is cured. But one so-called trigger has caused considerable confusion: the injury-in-fact theory. Under the injuryin-fact analysis, all policies are triggered that were in effect when the underlying injury actually happened. 1

2 Vol. 21, #24 April 24, 2007 MEALEY S LITIGATION REPORT: Insurance Although the first three theories exposure, manifestation, and continuous are all similar concepts, the injury-in-fact theory actually is something entirely different than the other three theories. In truth, the injury-in-fact analysis is always used. It is the method by which we determine which if any trigger we should use based on the facts, policy language and case law. In other words, the injury-in-fact theory merely restates the issue to be analyzed, namely, When did the injury (in fact) happen? The first three theories on the other hand describe judicially created shortcuts to answers that question. Under this light, the injury-in-fact analysis is simply not a trigger. Rather it is the prerequisite to coverage. The results and conclusions of that precondition are the triggers. In any event, because the injury-in-fact analysis is something different than the other theories, some confusion has resulted because most courts and commentators have treated all four as though they were parallel concepts. The confusion is compounded because the injury-in-fact analysis has come to mean different things to different courts. In some instances, when courts refer to the injury-in-fact trigger, its treatment equates to the continuous trigger; in other cases it amounts to the manifestation trigger; and in still others it does not correspond to any heretofore-named trigger. The purpose of this article is not to discuss which trigger should be applied when. That issue is resolved by looking at the facts of the case, the policy language itself, and the case law. 1 Rather, the purpose of this article is to unpack the confusion created by referring to the injury-in-fact analysis as a trigger. II. History Of The CGL Coverage Grant CGL policies insure against certain accidentally caused liabilities. For example, the 1947 standard policy form promulgated by National Bureau of Casualty Underwriters provided the following coverage: The company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident. The policy also provided coverage for property damages on a similar basis. On its own, this language does not clearly indicate what must happen during the policy period in order to trigger coverage. The question is answered under the heading, Policy Period, Territory : This insurance applies only to accidents which occur during the policy period. Older policies such as this one provided coverage based on when the accident happened. Thus, these older policies were said to have provided coverage on an accident basis. Courts interpretation of accident was inconsistent: some found it referred to the event that caused the injury. Others held accident was the resulting injury itself. 2 Furthermore, the term accident tends to imply a short temporal event and thus does not easily lend itself to the analysis of long-tail claims. Thus, in 1966, the standard policy from was amended so as to provide coverage on an occurrence basis rather than on an accident basis: Present policies frequently have been interpreted to apply at the time of a negligent act rather than the time of the accident which causes injury or property damage. Under the new policy, coverage applies when the bodily injury or property damage occurs during the policy period. 3 The 1966 language form provided the following coverage: The company will pay on behalf of the insured all sums which the insured shall become legally liable to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence. And occurrence was defined as follows: occurrence means an accident, including injurious exposure to conditions which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. 2

3 MEALEY S LITIGATION REPORT: Insurance Vol. 21, #24 April 24, 2007 The 1966 form language clearly indicates that coverage is triggered based on when the injury happens, not the liability-producing act. To ensure no misunderstandings, however, the 1966 policy form also contained the following revised language under the heading Policy Period; Territory : This insurance applies only to bodily injury or property damage which occurs during the policy period. This language leaves no doubt that the policy is triggered by the timing of the injury or damage that results from an accident rather than the timing of cause of the injury or damage. There are also interesting examples on non-standard language. For example, some policies require both the cause and result of an event, occurrence or accident to happen during the policy period. 4 Those so-called double-anchor policies fall outside the direct scope of this paper other than to serve as a reminder that, in analyzing the trigger issue, one must always to look at the actual policy language. III. Development Of The Case Law Considering that standard post-1966 CGL policies trigger upon the incidence of bodily injury or property damage, it should be no surprise that courts have found that an injury-in-fact analysis applies to those policies. Some courts have found based on certain facts that the triggering injury happens from the time of initial exposure to a harmful substance to the time when exposure stops. 5 That is the exposure trigger. Other courts have found that latent-injury claims trigger policies in effect between the time the injury first manifests itself to the time when the claimant recovers, dies or resolves the claim. That is the manifestation trigger. 6 Yet other courts have found that latent-injury claims trigger all policies during the exposure period, during the manifestation period and between. 7 A. The Early Days In early cases, courts referred only to the exposure and manifestation triggers, partially because the litigants may only have raised these two triggers. For example, in Forty-Eight Insulations, a seminal bodily-injury trigger case, the federal court of appeal acknowledged that a straightforward injury-in-fact analysis would entail looking at when the build up of a harmful substance (in that case, asbestos) was sufficient to overwhelm the claimant s bodily defenses. 8 But the court also found that neither party on appeal wanted such a trigger. The policyholder argued for an exposure trigger while the insurer argued for a manifestation trigger. The court looked at the thencurrent medical evidence and found that, in light of that evidence, injury occurred during exposure rather than when a claimant s disease manifested. Although the validity of the result could be disputed, especially in light of recent medical evidence, the approach was correct. The court considered when the injury happened and did not simply pick a trigger as a matter of law. In fact, the court expressly rejected the propriety of adopting a trigger as a matter of judicial fiat. 9 During the same period, in property damage case, the courts wrestled with the same two trigger theories. In some cases, where a latent defect gave rise to property damage, the courts tended to adopt a manifestation theory, triggering those policies in effect when the damage manifested rather than the policies in effect when the defective product or construction was manufactured or erected. 10 In situations where damages accumulated, courts might trigger the policies in effect during each successive period of minute damage. 11 As the case law developed, more trigger theories were invented. In another seminal case, Keene, the federal court of appeal faced a coverage dispute regarding underlying asbestos bodily-injury claims. The court found that all policies in effect from the time of first exposure to the time the claimant brings a claim, recovers or dies. This trigger has also been variously called a triple trigger (referring to the periods of exposure, manifestation and the time in between the two) or exposure-in-residence trigger. Regardless of what trigger theory a court eventually applies to a given set of facts, it must always first analyze when the injury or damage occurred because that is what trigger coverage under standard CGL policies. Thus, we can see that the injury-in-fact analysis is simply the eponymous activity of determining when the triggering injury happened. The other so-called triggers are merely the result of the injury-in-fact analysis. 3

4 Vol. 21, #24 April 24, 2007 MEALEY S LITIGATION REPORT: Insurance Indeed, at one point in time, people held this distinction clear in their minds. For instance, in Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., a 1983 decision, the federal court referred to the injury-in-fact approach, rather than the injury-in-fact trigger, and used the term simply to refer to the requirement that injury happen during the policy period in order to trigger coverage. 12 After referring to the injury-infact approach, the court then proceeded to consider which trigger was most appropriate under the facts of the case. Other courts referred only to the exposure, manifestation and continuous triggers but not to the injury-in-fact analysis as a trigger. 13 Indeed, many courts appear to have used the term injury-in-fact trigger to mean simply that it is the injury, rather than the accident or occurrence, which must happen during the policy period. 14 B. Confusion With The Injury-In-Fact Analysis Over time, the injury-in-fact approach somehow was mistaken for just another trigger theory. Although at least a few courts and commentators understand the problems that arise from treating the injury-infact analysis as a trigger, 15 courts and commentators alike now generally lump the injury-in-fact analysis in with the list of potential triggers. 16 But by calling the injury-in-fact analysis a trigger, a tremendous amount of confusion has resulted. It is as though we started saying: mammals are animals just like dogs and cats. Although mammals are a category of animal, there simply is no such animal called mammal whereas there are animals called dogs and cats. Likewise, there simply is no such trigger called injury-in-fact. Rather, injury-in-fact is the analysis used to determine whether standard CGL policies are triggered. Meanwhile, the other triggers convey the results of the injury-in-fact analysis. For example, a continuous trigger equates to finding that the triggering injury in fact happened from the date of first exposure to the date the claimants brings a claim, recovers or dies. Further confusion has been created because, in referring to an injury-in-fact trigger, courts are not all referring to the same concept. Some courts have come to use injury-in-fact as a near synonym for the continuous-injury trigger. 17 For instance, in Montrose Chem. Corp of Cal. v. Admiral Ins. Co., the California Supreme Court stated: In the context of continuous or progressively deteriorating injuries, the injury-in-fact trigger, like the continuous injury trigger, affords coverage for continuing or progressive injuries occurring during successive policy periods subsequent to the established date of the initial injury-in-fact. 18 In other cases, the injury-in-fact trigger has been characterized as something more akin to an exposure trigger. 19 In yet another line of cases, the injury-infact analysis leads to a trigger that has not been otherwise named: a trigger that engages coverage when a resulting injury or disease became diagnosable or when it first incepted, regardless of when it was actually diagnosed or discovered. 20 For instance, in Std. Asbestos Mfg. & Insulating Co. v. Royal Indem. Ins. Co., a Missouri Court defined the injury-in-fact trigger as follows: [T]he policies require a showing of actual injury, sickness or disease occurring during the policy period based upon the facts proved in each particular case. This means that an occurrence of personal injury, sickness, or disease, is determined to be at any point in time at which a finder of fact determines that exposure to asbestos fibers resulted in a diagnosable and compensable injury [A] real but undiscovered injury proved in retrospect to have existed at a relevant time, would establish coverage, irrespective of the time the injury became manifest. 21 Under this type of trigger, policies are triggered, for example, when a cancer first develops and becomes diagnosable, or when the cancer first becomes medically discoverable. In some cases, courts have taken a more fact-based approach to applying the injury-in-fact analysis. Courts going along this path have concluded that a determination of when the injury occurred is best left to the finder of fact on a case-by-case basis. 22 In other words, these courts simply endorse a factbased injury-in-fact analysis. Possibly, those courts want to avoid the notion that any particular trigger should apply as a matter of law. In any case, because some have talked of the injury-in-fact analysis as though it were a trigger, the injury-in-fact analy- 4

5 MEALEY S LITIGATION REPORT: Insurance Vol. 21, #24 April 24, 2007 sis has come to mean different things to different people. C. New Names For Old Triggers The case law has now developed so that the injuryin-fact analysis, depending on who is using it, could mean a trigger that already has a name or one that does not otherwise have a name. There is at least one trigger than never received a proper name. Thus, we could name that trigger in order to clarify the nomenclature. This trigger appropriately could be named the contraction trigger: all policies would be engaged that were in effect when a policyholder could be said to have contracted a diagnosable disease as a result of bodily injury, regardless when the disease actually manifested itself on a macroscopic level or when the disease was actually diagnosed. Furthermore, a distinction could be made based on what injury or damage is discoverable based on current technology. That is, some courts may want to adopt a trigger that engages policies starting with the one that, in retrospect, was in effect when the injury or damage commenced, regardless whether the injury was even discoverable using current technology. On the other hand, other courts may want to engage those policies starting only with the one in effect when the injury or damage was actually discoverable using current technology. So, we could come up with names to distinguish those two triggers: say, a discoverable-injury trigger (i.e., actually discoverable using current technology) versus a contraction trigger (i.e., when the disease started regardless whether it was even discoverable using current technology). In many circumstances, these triggers would operate as close cousins to the manifestation trigger because many serious diseases, most cancers for example, manifest themselves and are diagnosed shortly after they develop or become potentially diagnosable in any event. Finally, in those cases where courts have left the application of the injury-in-fact analysis to the fact finder, it would probably be best to say the court adopted a fact-based injury-in-fact analysis, or simply a factbased injury analysis. Even though in those cases, no particular trigger theory is ever articulated, to say that the court applied an injury-in-fact trigger would mean different things to different people and thus not be a very useful description of the approach taken by the court. The goal of this paper is to describe ways of avoiding that very problem. IV. Recommendations Going forward, instead of referring to the injuryin-fact trigger, lawyers, courts and commentators would be well served to approach the trigger issue as follows: (a) Understand that the injury-in-fact analysis simply states the starting point: the policy is triggered by injury or damage during the policy period. In the case of latent injuries, a determination of when the injury in fact happened may not be straightforward. The triggers, such as exposure, manifestation and continuous, are simply shorthand descriptions of the conclusions reached by undertaking the injury-in-fact analysis. (b) Recognize that there are a couple heretoforeunnamed triggers that have variously been referred to as the injury-in-fact trigger. One could be called the contraction trigger, which would trigger policies in effect when an injury or disease is contracted, regardless when it was even discoverable. Another trigger could be called a discoverable-injury trigger, which triggers policies in effect starting when injury or damage became discoverable. (c) Recognize that some courts have eschewed the rigid adoption of triggers and have instead found that the injury-in-fact analysis is a question of fact. Courts favoring this approach should indicate that they prefer a case-by-case analysis of the facts and policy language rather than claiming to apply the injury-in-fact trigger, in light of the term s ambiguity. Hopefully, these proposed new terms and recommendations will help lawyers, commentators and courts clearly describe their analysis of the trigger issue. Possibly, this will result in a more subtle and textured approach to the trigger issue, one that will account for differences in policy language, facts and precedent. 5

6 Vol. 21, #24 April 24, 2007 MEALEY S LITIGATION REPORT: Insurance Endnotes 1. See, e.g., Gelman Sciences v. Fid. & Cas. Co., 456 Mich. 305, , 572 N.W.2d 617, (1998). 2. The Defense Research Institute, The New Comprehensive General Liability Insurance Policy, A Coverage Analysis 6 (1966). 3. The Defense Research Institute, The New Comprehensive General Liability Insurance Policy, A Coverage Analysis 6 (1966). 4. See, e.g., Babcock & Wilcox Co. v. Arkwright-Boston Mfg., 53 F.3d 762 (6 Cir. 1995). 5. See, e.g., Ins. Co. of N. Am. v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir. 1980). 6. See, e.g., Eagle-Picher Indus. v. Lib. Mut. Ins. Co., 682 F.2d 12 (1st Cir. 1982). 7. See, e.g., Keene Corp. Ins. Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981). 8. Ins. Co. of N. Am. v. Forty-Eight Insulations, 633 F.2d 1212, 1217 (6th Cir. 1980). 9. Id. at See, e.g., Home Ins. Co. v. Landmark Ins. Co., 205 Cal. App. 3d 1388 (1988). 11 See, e.g., Public Service Co. of Colorado v. Wallis & Cos., 986 P.2d 132 (Colo. 1995). 12. Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1497 (D.C.N.Y.1983). 13. See, e.g., Cole v. Celotex, 599 So.2d 1058 (La. 1992). 14. See, e.g., In re Silicone Breast Implant Ins. Coverage Litig., 667 N.W.2d 405, (Minn. 1997); Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp (D.C.N.Y.1983). 15. See, e.g., Gelman Sciences v. Fid. & Cas. Co, 456 Mich. 305, 312, , 572 N.W.2d 617 (1998); and J.K. DiMugno & P.E.B. Glad, Cal. Ins. Law Handbook (Thomson West 2006) 44: See,.e.g., Cont l Cas. Co. v. Rapid-Am. Corp. 80 N.Y.2d 640, 651, 609 N.E.2d 506, 511 (1993); Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 10 Cal. 4th 645, , 913 P.2d 878, (1995). 17. See, e.g., Dow Corning Corp. v. Cont l Cas. Co., 1999 WL , at *4-5 (Mich. App., Oct. 12, 1999); Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 913 P.2d 878, 10 Cal. 4th 645, (1995). 18. Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 913 P.2d 878, 10 Cal. 4th 645, (1995). 19. See, e.g., Cont l Cas. Co. v. Med. Protective Co., 859 S.W.2d 789, 792 (Mo. Ct. App. 1993); and Prudential Lines v. Am. Steamship Owners Mut. Protection & Indem. Co., 158 F.3d 65, 68 & 85 n.13 (2d Cir. 1998) (applying New York law). 20. Cont l Cas. Co. v. Rapid-Am. Corp. 80 N.Y.2d 640, 651, 609 N.E.2d 506, 511, 593 N.Y.S.2d 966, 971 (1993), citing Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1489 (S.D.N.Y. 1983), modified on this issue, 748 F.2d 760, (2nd Cir. 1984); and Am. Empire Ins. Co. v. PSM Ins. Cos., 259 A.D.2d 341, 687 N.Y.S.2d 32 (1999). See also Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 748 F.2d at ; Abex v. Md. Cas. Co., 790 F.2d 119, 124 (D.C. Cir. 1986). 21. CV (Mo. Cir. Ct., Jackson County, Apr. 3, 1986), as quoted in Indep. Petrochem. Corp. v. Aetna Cas. & Sur. Co., 654 F. Supp. 1334, 1357 (D.D.C. 1986) (emphasis added), and as quoted in 1 31 Mealey s Litig. Rep. Ins. 3 (1986). This concept has also been referred to as the contraction theory. Cole v. Celotex, 599 So.2d 1058, 1076 n.54 (La. 1992). 22. See, e.g., In re Silicone Breast Implant Ins. Coverage Litig., 667 N.W.2d 405, (Minn. 1997); Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1489 (S.D.N.Y. 1983), modifi ed, 748 F.2d 760, (2d Cir. 1984); Abex v. Maryland Cas. Corp., 790 F.2d 119, 128 (D.C. Cir.1986) (applying New York law); Indep. Petrochem. Corp. v. Aetna Cas. & Sur. Co., 672 F. Supp. 1, 3 (D.D.C. 1986), modifying in part, 654 F. Supp (D.D.C. 1986), reversed in part on other grounds, 944 F.2d 940 (D.C. Cir. 1991) (applying New York and Missouri law). 6

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