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EMONS INDUS. v. LIBERTY MUT. FIRE INS. CO.

July 7, 1983

EMONS INDUSTRIES, INC., Plaintiff, against LIBERTY MUTUAL FIRE INSURANCE COMPANY and RESERVE INSURANCE COMPANY, Defendants.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 This protracted litigation surrounds the liability of insurance companies for illnesses resulting from diethylstilbestrol ("DES"), a drug that was perscribed to pregnant women to prevent miscarriage. In the latest stage of this litigation, plaintiff Emons Industries, Inc. ("Emons") moves for summary judgment contending that under the terms of Comprehensive General Liability ("CGL") policies issued to it by defendant Liberty Mutual Fire Insurance Company ("Liberty"), Emons is entitled to indemnification for any claims arising from its distribution of DES between 1948 and 1971. *fn1" In response, Liberty contends that summary judgment is inappropriate because the present record contains genuine questions of material facts. I will assume familiarity with the history of this case that has been outlined in prior decisions and only recite relevant facts.

 Prior to 1966, the CGL policy which Liberty sold to Emons provided that Liberty would

 pay on behalf of [Emons] all sums which [Emons] 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.

 Triggs Affidavit, Exhibit D. The policy, however, contained no definition of either a "bodily injury" or an "accident."

 In 1966, the CGL was modified in three respects. First, the indemnification provision was revised to provide that Liberty would

 pay on behalf of [Emons] all sums which [Emons] shall become legally obligated to pay as damages because of bodily injury, . . . sustained by any person and caused by an occurrence.

 Id., Exhibit C. Second, bodily injury was defined to mean "bodily injury, sickness or disease . . . which occurs during the policy period." Id. Finally, the CGL defined occurrence to mean

 an accident, including continuous or repeated exposure to conditions, which results in bodily injury . . . neither expected nor intended from the standpoint of the insured.

 Id. To date Emons has settled at least seven DES lawsuits for which it has not been indemnified by Liberty. Liberty contends that it is not required to indemnify Emons because the injuries that form the basis for these lawsuits did not manifest themselves while Liberty insured Emons. *fn2"

 Emons argues, in essence, in support of its summary judgment motion that the policies Liberty issued were ambiguous on the question of coverage for DES injuries. Specifically, plaintiff suggest that it is unclear when "bodily injury" as defined by the policies actually occurs with regard to DES and triggers coverage. The ambiguity of "occurence" is also cited. All ambiguities, Emons contends, are to be construed against the insurer in accordance with the insurance doctrine of contra proferentem. *fn3" Emons strenuously argues that proper construction of the ambiguities in the insurance policies should follow the "comprehensive coverage" theory adopted in an asbestos case by the United States Court of Appeals for the District of Columbia Circuit in Keene Corp. v. Insurance Company of North America, 667 F.2d 1034 (D.C. Cir. 1981), cert. denied, 455 U.S. 1007 (1982) ("Keene"). This theory provides coverage for the exposure period, the "exposure in residence" period, and the manifestation period. Id., at 1047.

 Liberty, and other insurance companies who filed amici briefs, *fn4" dispute that the issued CGL policies were ambiguous and argue that even if the plain meaning of various clauses is not evident from the policies alone, resort to the contra proferentem doctrine is premature.

 In particular, Liberty asserts that factual questions surround the meaning of several phrases in the CGL policies and the parties' reasonable expectations at the time they entered into the insurance agreements in issue. In addition, Liberty contends that until I have heard medical evidence concerning the etiologies of the DES-related diseases, and evidence on the issue of the parties' contractual intent, the insurance contracts in question cannot be interpreted properly. Plaintiff's reliance on Keene is also attacked; the logic of Keene and its applicability to the DES context is ...


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