CTQ-2015-00003
Court of Appeals
of the
State of New York
In the Matter of Viking Pump, Inc. and Warren Pumps LLC, Insurance Appeals,
VIKING PUMP, INC. and WARREN PUMPS LLC,
Appellants,
— v. —
TIG INSURANCE COMPANY, et al.,
Respondents.
ON APPEAL FROM THE QUESTIONS CERTIFIED
BY THE SUPREME COURT OF THE STATE OF DELAWARE
(DOCKET NOS. 518, 2014; 523, 2014; 525, 2014; 528, 2014)
BRIEF FOR AMICUS CURIAE
ITT CORPORATION
MORGAN, LEWIS & BOCKIUS LLP
David S. Cox
300 South Grand Avenue,
Twenty-Second Floor
Los Angeles, California 90071
Telephone: (202) 739-3000
Facsimile: (202) 739-3001
Date Completed: February 2, 2016
Gerald P. Konkel
Randall M. Levine
Stephanie Schuster
Christopher M. Popecki
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: (202) 739-3000
Facsimile: (202) 739-3001
Attorneys for Amicus Curiae ITT Corporation
ii
DISCLOSURE STATEMENT
Due to the length of the amicus’s disclosure statement, and for the
convenience of the Court, the statement required by 22 N.Y.C.R.R. § 500.1(f)
appear at the end of this brief.
i
TABLE OF CONTENTS
PRELIMINARY STATEMENT ...............................................................................1
ARGUMENT .............................................................................................................6
I. THE RISK INSURED AGAINST IS LIABILITY, NOT INJURY ...............9
II. THE PLAIN LANGUAGE OF THE POLICIES REQUIRES “ALL
SUMS” ALLOCATION................................................................................11
A. The Insurers’ Promise To Pay Damages For “Sickness or
Disease and Death Resulting At Any Time” Would Be
Meaningless Under A Pro-Rata Regime. ............................................12
B. Coverage For “Direct Or Consequential” Damages Confirms
The Parties’ Intent For “All Sums” Allocation. ..................................15
C. The Non-Cumulation Of Liability And Prior Insurance
Provisions Likewise Are Only Consistent With An “All Sums”
Interpretation. ......................................................................................18
1. The “prior insurance” provisions only make sense under
an “all sums” interpretation. .....................................................19
2. The non-cumulation of liability provisions are similarly
incompatible with pro rata allocation .......................................22
CONCLUSION........................................................................................................24
ii
TABLE OF AUTHORITIES
Page(s)
CASES
ACE Sec. Corp. v. DB Struc. Prods.,
25 N.Y.3d 581 (2015) .........................................................................................20
Am. Home Prods. Corp. v. Liberty Mut. Ins. Co.,
565 F. Supp. 1485 (S.D.N.Y. 1983) ...................................................................11
Askey v. Occidental Chem. Corp.,
102 A.D.2d 130 (N.Y. App. Div. 1984) .............................................................16
Beal Sav. Bank v. Sommer,
8 N.Y.3d 318 (2007) ...........................................................................................10
Brooke Grp. v. JCH Syndicate 488,
87 N.Y.2d 530 (1996) .........................................................................................13
California v. Cont’l Ins. Co.,
281 P.3d 1000 (Cal. 2012) ....................................................................................8
Consolidated Edison Co. v. Allstate Ins. Co.,
98 N.Y.2d 208 (2002) ...............................................................................3, 6, 8, 9
Dennis Cain Motor Co. v. Univ. Underwriters Ins. Co.,
614 S.W.2d 275 (Mo. Ct. App. 1981) ................................................................14
E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos.,
241 F.3d 154 (2d Cir. 2001) ...............................................................................18
Greenfield v. Phillies Records, Inc.,
98 N.Y.2d 562 (2002) .........................................................................................11
Hooper Assocs. v. AGS Computers, Inc.,
74 N.Y.2d 487 (1989) ...........................................................................................1
In re N.Y. Asbestos Litig.,
No. 105155/2001, 2003 WL 27172191 (N.Y. Sup. Ct. 2003) ...........................17
iii
In re N.Y.C. Asbestos Litig.,
16 Misc. 3d 945 (N.Y. Sup. Ct. 2007).............................................................4, 17
Madawick Contracting Co. v. Travelers Ins. Co.,
307 N.Y. 111 (1954) ...........................................................................................14
Miller-Wohl Co. v. Comm’r of Labor & Indus.,
694 F.2d 203 (9th Cir. 1982) ................................................................................1
Schmidt v. Merchs. Despatch Transp. Co.,
270 N.Y. 287 (1936) ...........................................................................................16
Seifert, Hirshorn & Packman, Inc. v. Ins. Co.,
36 A.D.2d 506 (N.Y. App. Div. 1971) ...............................................................18
Spaulding v. Benenati,
57 N.Y.2d 418 (1982) .........................................................................................14
Travelers Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s,
96 N.Y.2d 583 (2001) .........................................................................................13
Univ. Am. Corp. v. Nat’l Union Fire Ins. Co.,
25 N.Y.3d 675 (2015) .........................................................................................11
Vigilant Ins. Co. v. Bear Stearns Cos.,
10 N.Y.3d 170 (2008) .........................................................................................11
Viking Pump, Inc. v. Century Indem. Co.,
2 A.3d 76 (Del. Ch. 2009) ....................................................................................9
Westview Assocs. v. Guar. Nat’l Ins. Co.,
95 N.Y.2d 334 (2000) .........................................................................................11
OTHER AUTHORITIES
Alfred E. Reichenberger, The Gen. Liab. Ins. Pol’ys—Analysis of
1973 Revisions in FRED L. BARDENWERPER & DONALD J. HIRSCH,
GEN. LIAB. INS.—1973 REVISIONS 10 (1974)..............................................13, 14
BLACK’S LAW DICTIONARY (10th ed. 2014) ............................................................10
George H. Tinker, Comprehensive General Liability Insurance—
Perspective and Overview--Fed’n Ins. Couns. Q. (1975) ..................................13
iv
N.Y. PRAC., N.Y. LAW OF TORTS § 21:13................................................................15
ROBERT E. KEETON & ALAN I. WIDISS, INS. LAW: A GUIDE TO
FUNDAMENTAL PRINCIPLES, LEGAL DOCTRINES, & COMMERCIAL
PRACTICES (1988) ...............................................................................................10
S.S. HUEBNER ET AL., PROP. & LIAB. INS. (3d ed. 1982)............................................9
STEPHEN J. CARROLL ET AL., ASBESTOS LITIG. (2005).............................................17
3 WINDT, INS. CLAIMS & DISPUTES § 11:7 (6th ed. 2013).........................................9
1
PRELIMINARY STATEMENT
Amicus curiae ITT Corporation (“ITT”) is one of many similarly situated
policyholders that have sought insurance coverage from their historic general
liability insurers for millions of dollars of product liability damages paid to
compensate tort claimants who suffered progressive injury and disease that, all too
frequently, has also led (or is reasonably certain to lead) to death from exposure to
asbestos decades ago. Certain of amicus’s general liability policies feature the
same, or substantially the same, pertinent standardized language as the policies
before the Court (i.e., the “Houdaille policies”). Because New York law has been
adjudicated to govern certain liability policies issued to ITT’s affiliate, Goulds
Pumps, and because certain of ITT’s own liability insurers contend that their policy
obligations are governed by New York law, amicus has a concrete interest in this
Court’s interpretation of the Houdaille policy language, and in ensuring that the
Court’s analysis accounts for and gives meaning to “all of the language” in these
contracts. Hooper Assocs. v. AGS Computers, Inc., 74 N.Y.2d 487, 493 (1989). In
particular, amicus seeks to fulfill the “classic role” of the amicus curiae by
drawing the Court’s attention to policy language that further illuminates the answer
to the first certified question, but which thus far has “escaped consideration.”
Miller-Wohl Co. v. Comm’r of Labor & Indus., 694 F.2d 203, 204 (9th Cir. 1982).
2
The first certified question asks, “[u]nder New York law, is the proper
method of allocation to be used all sums or pro rata when there are non-cumulation
[of liability] and prior insurance provisions?”2 June 25, 2015 Order. The
provisions that are the subject of the certified question qualify, and must be read
harmoniously with, the promise set forth in each policy’s insuring agreement to
cover the policyholder’s liability for damages because of personal injury.
Accordingly, this certified question seeks to resolve how the Houdaille policies
respond to their insured’s tort liability arising from the insidious progression of
asbestos-related injury over a span of many years and policy periods, an injurious
process that often concludes with death.
The interpretation of the Delaware Court of Chancery—labeled “all sums”—
is that responsive policies cover the full extent (up to policy limits) of the
policyholder’s liability for direct and consequential damages stemming from
continuous injury that takes place during the policy period, even if those damages
reflect compensation to the tort victim for further progression of that injury,
including resulting death, outside the policy period. Contrastingly, the insurers
advance a “some sums,” or “pro rata,” interpretation, arguing that liability covered
under their policies is subject to an “express temporal limitation” that “limit[s]
2 Amicus submits this brief to inform the Court’s analysis of the first of the two certified
questions only. See June 25, 2015 Order.
3
coverage” only to that quantum of “injur[y] occurring ‘during the policy period.’”
Respondents’ Brief (“Resp. Br.”) at 2 (emphases added).
One need only start with the policy definition of “personal injury”
incorporated into most of the Houdaille policies to recognize the fallacy of the
purported “express temporal limitation” advocated by the respondent insurers,
particularly in the grim context of asbestos-related injury, disease, and death.
“Personal injury” is a defined term that incorporates another defined term, “bodily
injury,” to mean “personal injury or bodily injury [‘includ[ing] sickness or disease
and death resulting at any time therefrom’] during the policy period sustained by a
natural person . . . .” See, e.g., A-518–19 (emphasis added). The respondent
insurers do not explain how the phrase “including sickness or disease and death
resulting at any time therefrom” can be reconciled with the central tenet of pro rata
allocation—the proposition that the Houdaille policies “limit coverage to injuries
occurring ‘during the policy period.’” Resp. Br. at 2 (emphasis added). Instead,
they ignore this policy language, even though an insurance policy must be
construed “in a way that affords a fair meaning to all of the language employed by
the parties in the contract and leaves no provision without force and effect.”
Consolidated Edison Co. v. Allstate Ins. Co., 98 N.Y.2d 208, 221–22 (2002)
(emphasis added) (citation omitted).
4
This cardinal principle of contract interpretation compels the conclusion that
each Houdaille policy covers its policyholders’ liability for asbestos-related injury
taking place during the policy period, including the future consequences of that
injury, and therefore the Court of Chancery’s “all sums” decision should be ratified
by this Court. The policies before this Court cover the policyholder’s liability for
“all sums” that they become “legally obligated to pay . . . as damages, direct or
consequential” because of “personal injury.” See, e.g., A-517. Although “personal
injury” during the policy period is necessary to trigger coverage, the policies do
not insure against that “injury” per se, but rather against liability arising from the
immediate and long-ranging consequences of that injury, including “death
resulting at any time therefrom.” See, e.g., A-518–19 (emphasis added). It is the
fatal consequence of the injurious process begun from asbestos exposure decades
ago that catalyzes the damages awards confronting amicus, appellants, and
similarly situated policyholders in trial courts in New York and throughout the
country, and which informs settlement decisions.3
That progressive injury might span multiple years, trigger multiple insurance
policies, and give rise to liability for “damages, direct or consequential,”
implicating the obligation of each triggered policy to respond in full, is further
confirmed—and addressed—by the standard inclusion of “non-cumulation of
3 See, e.g., In re N.Y.C. Asbestos Litig., 16 Misc. 3d 945 (N.Y. Sup. Ct. 2007) (justifying
$25 million damages award to plaintiff suffering mesothelioma).
5
liability” and/or “prior insurance” clauses in the Houdaille policies. These
provisions underscore the fact that the liability policies at issue cover all of the
liability that flows from an asbestos-related bodily injury claim that triggers
coverage under a policy and not merely a “pro rata share” of that liability based on
the proportionate amount of “injury” transpiring during the policy period. The
non-cumulation of liability provisions before the Court plainly contemplate that the
policy’s insuring agreement promises to cover the full extent of the policyholder’s
liability from an injury that progresses through multiple policy periods, an
obligation mitigated only by, and to the extent of, “payment[s]” made (as opposed
to the proportion of injury taking place) under prior coverage for the “same
occurrence.” A-518 (emphasis added). Similarly, the prior insurance provisions
unambiguously reflect (i) that liability covered under a given policy may also be
covered “in whole” or in part (i.e., where damages exceed a per occurrence limit)
by an earlier policy; and (ii) an intent to cover liability for injury “continuing at the
time of termination” of the policy period. A-1176.
For these reasons and as more fully discussed below, the Houdaille policies
require “all sums” allocation.
6
ARGUMENT
The insurers promised to cover their insureds for “all sums” of tort damages
incurred “because of personal injury” caused by an occurrence. Seizing on four
words in the definition of “personal injury”—which, the insurers submit, means
“personal injury or bodily injury which occurs during the policy period,” Resp. Br.
at 7 (emphasis added)—the insurers urge the Court to end the inquiry there, in
favor of pro rata allocation. But insurance policies must be construed to give
“meaning to all of the language employed by the parties.” Consolidated Edison,
98 N.Y.2d at 221–22 (emphasis added). The rest of the policy language and,
indeed, the definition of “personal injury” itself, cannot be squared with the pro
rata reading the insurers divine from the four words, “during the policy period,”
which is the sole textual support offered for pro rata allocation.4
First, the insurers ignore that embedded within the definition of “personal
injury” is another defined term, “bodily injury,” which “includes sickness or
disease and death resulting at any time therefrom.” A-518–19 (emphasis added).
The insurers’ duty to indemnify thus explicitly embraces the insured’s liability for,
inter alia, death “at any time” if it results from injury during the policy period, not
just for that fraction of continuous injury sustained within the confines of the
4 Insurer trade association amici suggest that “[e]ven a cursory reading” of the policy
language calls for pro rata allocation, but a “cursory reading,” focused exclusively on the four
words, “during the policy period,” is all the insurers have offered. (CICLA/AIA Br. at 14–15.)
A thorough reading of the applicable policy language—all of it, as required by New York law—
reveals no support for pro rata allocation in the context of liabilities for asbestos-related injury.
7
policy period. The “during the policy period” language therefore cannot signify
pro rata allocation. The more natural reading—and the one that gives effect to all
of the contract language—is that if there is injury “during the policy period,” the
policy will protect the insured against all liability flowing from the progression of
that injury, including “death resulting at any time therefrom.”
Second, an “all sums” conclusion is the logical result of the Houdaille
policies’ promise to cover their insureds’ liability for “direct or consequential”
damages. Consequential damages in tort, particularly in the context of asbestos-
related injury, compensate tort victims not only for the injury they have suffered,
but also for the further injury they will suffer, including death. The touchstone of
the “pro rata” interpretation, the proposition that the Houdaille policies “limit
coverage to injur[y] occurring ‘during the policy period’” (Resp. Br. at 2), drains
the promise to pay “damages, direct or consequential” of meaning because
consequential damages intrinsically have no “temporal limitation.” Only an “all
sums” interpretation breathes life into the insuring covenant to cover liability (not
injury), including liability for consequential harms, arising from injury during the
policy period.
Finally, the non-cumulation of liability and prior insurance provisions only
make sense in the context of an “all sums” interpretation. Those clauses were
written to address coverage for liability arising from precisely the sort of injury
8
that gives rise to allocation questions—“continuing” injury that progresses through
multiple policy periods and implicates coverage under more than one policy.
These provisions make clear that the policyholder’s liability for a singular
continuing injury may be covered “in whole” under multiple policies and function
to ensure that the policyholder does not recover more than its total liability from its
insurers.
The insurers maintain that the result in this case should be governed by
Consolidated Edison, in which this Court concluded that pro rata allocation was
“consistent with,” albeit “not explicitly mandated by,” the policy language before it
in the context of liability for continuous property damage. Consolidated Edison,
98 N.Y.2d at 224. However, in Consolidated Edison, the Court was not faced with
a definition of “personal injury” that plainly contemplates coverage for injury that
eventually leads to sickness, disease or death “resulting at any time”;5 it was not
asked to address what it means for a policy to cover the insured’s consequential
damages because of injury that happens during the policy period; and it did not
5 Liability insurers themselves have recognized that the “death at any time” language in the
definition of “bodily injury” is inconsistent with pro rata allocation. In California v. Continental
Ins. Co., 281 P.3d 1000 (Cal. 2012), insurers argued to the California Supreme Court that pro
rata allocation for continuous property damage is reconcilable with an all sums approach to
bodily injury because “[t]he ‘at any time’ language” in the definition of bodily injury
“distinguishes it from the property damage coverage, which is limited to all sums for damages
because of property damage during the policy period, not property damage ‘at any time.’”
Appellants’ Reply Br., California v. Continental Ins. Co., No. S170560, 2009 WL 2847407, at
*19 (Aug. 5, 2009).
9
have before it non-cumulation of liability or prior insurance provisions that only
function sensibly under an “all sums” interpretation. Under these circumstances
the holding of Consolidated Edison should be limited to its then “present factual
setting,” id., even as the animating principles of contract interpretation articulated
by the Consolidated Edison court should guide the decision here. Those principles
unerringly lead to the “all sums” interpretation adopted by the Delaware Court of
Chancery. Cf. Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76, 119 (Del. Ch.
2009) (noting that “the fact that one decision held that a particular policy embraced
the pro rata approach does not make New York a ‘pro rata state,’” because “New
York is a state that focuses on giving effect to the parties’ bargain.”).
I. THE RISK INSURED AGAINST IS LIABILITY, NOT INJURY.
The contracts this Court has been asked to construe are general liability
insurance policies.6 As that moniker suggests, the risk these policies insure against
is liability—and tort liability, in particular. See 3 WINDT, INS. CLAIMS & DISPUTES
§ 11:7 (6th ed. 2013). Tort liability, including, especially, product liability, is a
real prospect for any company doing business, and one that is both unpredictable
and potentially limitless. See S.S. HUEBNER ET AL., PROP. & LIAB. INS. 337 (3d ed.
1982) (risk of tort liability is “virtually unlimited”).
6 The Houdaille policies are umbrella and excess general-liability policies, which kick in
when primary, comprehensive general-liability policies are exhausted.
10
General liability insurers serve as “professional risk bearers” that add some
certainty into the mix. Id. at 350-351. Policyholders pay a known loss, in the form
of policy premiums, to insurance companies in exchange for protection against the
specter of uncertain loss in the form of potential tort damages they may become
liable to pay to someone else. See ROBERT E. KEETON & ALAN I. WIDISS, INS.
LAW: A GUIDE TO FUNDAMENTAL PRINCIPLES, LEGAL DOCTRINES, & COMMERCIAL
PRACTICES § 4.8(a) (1988) (“Liability insurance was initially developed to provide
an insured with indemnification for damages, up to the policy limits, for which the
insured was responsible as a result of tort liability to a third person . . . .”).
Everyone benefits from this exchange. Insurance companies pocket premiums,
even if never asked to defend or indemnify the insured. Businesses get protection
from tort judgments. And most importantly, tort claimants benefit, for an
insurance-backed defendant is best situated to actually pay tort damages.
It is against this backdrop that the Houdaille policies must be interpreted.
This Court interprets contracts so “as to give effect to [their] general purpose,”
Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324–25 (2007), and here that is to cover
the insured for tort liability. General liability insurance policies are not designed to
provide “coverage to injuries.” Resp. Br. at 2 (emphasis added); see id. at 18–19,
24 n.9. They cover the insured’s liability for someone else’s injury. See BLACK’S
LAW DICTIONARY (10th ed. 2014) (defining “liability” as a “legal responsibility to
11
another . . . , enforceable by civil remedy”); accord Am. Home Prods. Corp. v.
Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1496 (S.D.N.Y. 1983) (general liability
policies insure “not illness itself, but liability” in tort). That crucial distinction
should resolve the certified question in favor of an “all sums” interpretation
because no other reading gives meaning to the purpose of the insurance contract.
And as discussed below, no other reading gives meaning to the plain language of
the whole contract.
II. THE PLAIN LANGUAGE OF THE POLICIES REQUIRES “ALL
SUMS” ALLOCATION.
Insurance policies are contracts. Well-settled principles of contract law
govern the construction and interpretation of insurance contracts, Univ. Am. Corp.
v. Nat’l Union Fire Ins. Co., 25 N.Y.3d 675, 680 (2015), and thus the parties’
intent dictates the meaning of every provision in them, see Greenfield v. Phillies
Records, Inc., 98 N.Y.2d 562, 569 (2002). As with any contract, the inquiry into
the parties’ intent begins with the words the parties chose to use. See id. Where
that language is plain and unambiguous—and here, it is—that is also where the
inquiry ends. Vigilant Ins. Co. v. Bear Stearns Cos., 10 N.Y.3d 170, 177 (2008).
But, if there are any ambiguities in insurance contracts, they are resolved in favor
of the insured. Westview Assocs. v. Guar. Nat’l Ins. Co., 95 N.Y.2d 334, 340
(2000).
•
•
•
12
A. The Insurers’ Promise To Pay Damages For “Sickness or Disease
and Death Resulting At Any Time” Would Be Meaningless Under
A Pro-Rata Regime.
The language of the insuring promise in the Houdaille policies is layered,
but not nuanced. The insurance companies agreed to indemnify the insured for “all
sums … the insured shall become legally obligated to pay . . . as damages, direct or
consequential . . . because of . . . personal injury . . . caused by an occurrence.” A-
517. That language sketches out the insurers’ duty to indemnify, and the details
are found in the definitions of a few key terms:
“Occurrence” refers to “injurious exposure to conditions, which results
in personal injury.” A-519. Where “personal injury” arises from
“continuous or repeated exposure to substantially the same conditions,”
the injury is treated as flowing from a single occurrence. A-518.
“Personal injury” bears a reciprocal meaning: “personal injury or bodily
injury which occurs during the policy period.” A-519.
“Bodily injury” “includes sickness or disease and death resulting at any
time therefrom.” A-518.
These definitions point to an “all sums” interpretation, and no other. The
point is sharpest in the definition of personal injury, which includes (through the
definition of “bodily injury”) more than just injury during the policy period, but
also “sickness or disease and death resulting at any time therefrom.” A-518–19
13
(emphasis added). If the words “at any time” are given their ordinary meaning—
and they must be, see Brooke Grp. v. JCH Syndicate 488, 87 N.Y.2d 530, 534
(1996)—the policies cannot be read to temporally truncate the duty to indemnify
once coverage has been triggered. Rather, unless those words are read out of the
agreement (and they cannot be), the policies must be read to cover all liability
flowing from an occurrence that causes some injury during the policy period. See
Travelers Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s, 96 N.Y.2d 583, 594
(2001).7
Contemporaneous commentary from within the insurance industry leaves
little doubt that this is what the drafters intended. See, e.g., Alfred E.
Reichenberger, The Gen. Liab. Ins. Pol’ys—Analysis of 1973 Revisions, in FRED L.
BARDENWERPER & DONALD J. HIRSCH, GEN. LIAB. INS.—1973 REVISIONS 10
(1974) (“[A] death which results after the end of the policy period will be covered
if it was caused by an injury which occurred during the policy period.”); George H.
Tinker, Comprehensive General Liability Insurance—Perspective and Overview,
25 Fed’n Ins. Couns. Q. 217, 240 (1975) (“[D]eath which results after the end of
the policy period, but which is the result of an injury which occurred during the
7 All of this language is from an exemplar policy (specifically, a Liberty Mutual Umbrella
Insurance Policy, A-517–19). Others take a less circuitous route to the “at any time” language.
For example, another of the Houdaille policies (an Old Republic Excess Insurance Policy), gets
right to the point in the insuring promise: “The company . . . agrees . . . to indemnify the assured
for all sums which the assured shall be obligated to pay by reason of liability . . . [f]or damages,
direct or consequential, and expenses on account of . . . [p]ersonal injuries, including death at any
time resulting therefrom.” A-1175 (emphasis added).
14
policy period, is not to be regarded as a separate bodily injury but will be covered
by the policy in force at the time of injury . . . .” (emphasis added)).
The insurers’ selective focus on the words “during the policy period” in the
definition of personal injury, at the expense of the remainder of the definition’s
inclusion of “sickness or disease and death resulting at any time,” is an incomplete
reading that is impermissible under New York law. See Spaulding v. Benenati, 57
N.Y.2d 418, 425 (1982) (declining to adopt an interpretation that “would operate to
leave [a] provision of the contract . . . without force and effect”); Madawick
Contracting Co. v. Travelers Ins. Co., 307 N.Y. 111, 119 (1954). The temporal
references in the definition can be harmonized easily by recognizing that “during
the policy period” functions as a trigger of coverage, not as a “limitation” on it,
and that coverage is provided for whatever liability flows from that injury. Thus,
for example, the “resulting at any time therefrom” language provides “coverage for
a death claim when the death occurs after the policy period but as a result of bodily
injury occurring within the policy period.” Dennis Cain Motor Co. v. Univ.
Underwriters Ins. Co., 614 S.W.2d 275, 276–77 (Mo. Ct. App. 1981).8
Pro rata allocation is irreconcilable with this policy language because it is
founded on the proposition that the Houdaille policies only “provide[] coverage for
8 This plain reading is confirmed by the drafting history of the underlying form policies.
See, e.g., Reichenberger, supra, (explaining that the phrase “occurs during the policy period”
means that the “date of the injury” controls “the applicability of the policy,” not scope of
coverage obligations) (emphasis added).
15
a discrete and finite period.” CICLA/AIA Br. at 14. The policies themselves say
the opposite, providing coverage for liability because of injury during the “discrete
and finite” policy period, but also for “sickness or disease and death resulting at
any time therefrom.” Prorating the insurers’ liability would require the Court to
rewrite the agreements; only an “all sums” approach gives each part of the
“personal injury” definition meaning.
B. Coverage For “Direct Or Consequential” Damages Confirms The
Parties’ Intent For “All Sums” Allocation.
The Houdaille policies’ explicit promise to cover the policyholders’ liability
for “sickness or disease and death resulting at any time” from injury during the
policy period is the logical extension of the promise to cover the insured against
“damages, direct or consequential” for such injury. As noted, the very purpose of
general liability insurance is to cover tort liability. General liability policy
language is consequently rooted in tort doctrine, which must therefore inform the
interpretation of that language. The insurers’ argument that the Houdaille policies
“limit coverage to injur[y] occurring ‘during the policy period’” is antithetical to a
promise to cover consequential damages arising from that injury.
In a single cause of action, tort plaintiffs can recover damages for all
consequential (proximately caused) harms flowing from an injury. See generally
N.Y. PRAC., N.Y. LAW OF TORTS § 21:13. Consequential damages, accordingly,
may compensate for not-yet-manifested injury (like pain, suffering, loss of
16
consortium, and death), provided it is reasonably certain to flow from the injury
already suffered:
Consequential damages may flow later from an injury too
slight to be noticed at the time it is inflicted . . . . So far
as such consequential damages may be reasonably
anticipated, they may be included in a recovery for the
original injury, though even at the time of the trial they
may not yet exist.
Schmidt v. Merchs. Despatch Transp. Co., 270 N.Y. 287, 297–301 (1936)
(emphasis added), superseded by statute on other grounds, Caronia v. Phillip
Morris USA, Inc., 22 N.Y.3d 439, 448 (2013); accord Askey v. Occidental Chem.
Corp., 102 A.D.2d 130, 136 (N.Y. App. Div. 1984) (“The theory of liability grows
out of the invasion of the body by the foreign substance, with the assumption being
that the substance acts immediately upon the body setting in motion the forces
which eventually result in disease. The defendant is liable for ‘reasonably
anticipated’ consequential damages which may flow later from that invasion
although the invasion itself is ‘an injury too slight to be noticed at the time it is
inflicted.’” (citations omitted)).
The “death resulting at any time” policy language is the insurers’ own
depiction of the outer bounds of their promise to cover the insured for “direct or
consequential” damages. Asbestos-related tort claims raise the very real prospect
of eventual death, particularly in cases of mesothelioma, a disease for which
asbestos exposure is the only demonstrated cause and which “is regarded as
17
inevitably fatal.” See, e.g., STEPHEN J. CARROLL ET AL., ASBESTOS LITIG., at 12
(2005), available at www.rand.org/content/dam/rand/pubs/monographs/2005/RAN
D_MG162.pdf. Damages awarded to victims of mesothelioma and other asbestos-
related injuries are thus routinely forward-looking, often including a consequential
damages component to compensate for future progression of injury and eventual
death.9
Businesses like amicus purchased insurance so they can pay damages for
these sorts of claims. The insured may be held liable for all consequential damages
flowing from asbestos-related injury, including death. The insurers promised to
indemnify the insured for all “damages, direct or consequential” that the insured is
required to pay “because of . . . personal injury,” including “sickness or disease
and death resulting at any time therefrom.” A-517–19. Only “all sums” allocation
gives meaning to this promise—the insurer indemnifies the insured for the full
scope of its liability.
In stark contrast, pro rata allocation artificially restricts the insurer’s
obligations to the quantum of injury the tort victim sustained “during the policy
period.” There is no textual basis for reducing the insurers’ obligations this way.
Nor is there any policy-based reason to shoehorn the insurance contracts into the
9 See, e.g., N.Y.C. Asbestos Litig., 16 Misc.3d at 950; In re N.Y. Asbestos Litig., No.
105155/2001, 2003 WL 27172191, at *1 (N.Y. Sup. Ct. 2003) (awarding damages for future
suffering and death, because “there is no basis to believe” that plaintiff’s mesothelioma would
not be fatal).
18
pro rata realm (for a windfall). Tort doctrine already balances interests in
compensation, deterrence, and punishment. Simply put, in addition to policy
limits, “the underlying tort law governing consequential claims itself provides
limits on insurers’ liability.” E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d
154, 171 (2d Cir. 2001) (applying New York law).10
C. The Non-Cumulation Of Liability And Prior Insurance Provisions
Likewise Are Only Consistent With An “All Sums”
Interpretation.
That the basic insuring agreement at the heart of the Houdaille policies
textually compels the “all sums” interpretation is further confirmed by the Liberty
Mutual non-cumulation of liability clause and certain excess policies’ prior
insurance provisions.11 These provisions must be read in concert with the insuring
agreement as they explain how coverage is provided when the insured is liable for
a continuing injury, caused by the same occurrence, that spans multiple policy
10 The insurers invoke what they describe as considerations of “fairness” and “efficiency” in
an attempt to bolster their argument for pro rata allocation. Resp. Br. at 36–38. They claim that
the “all sums” interpretation called for by the policy language would “promote[] inefficiency and
unnecessarily multipl[y] litigation costs” because insurers “would be forced to litigate
contribution claims against other carriers . . . .” Id. at 37 (emphasis added). But if, as the
insurers claim, pro rata allocation is so inherently “fair,” then there is no reason that they cannot
adopt it as an equitable rule to govern themselves to avoid this “forced” contribution litigation.
“Fairness” as between the insurers and their policyholders, however, is dictated by the terms of
the contracts themselves, which plainly do not support pro rata allocation. Seifert, Hirshorn &
Packman, Inc. v. Ins. Co. of North America, 36 A.D.2d 506, 508 (N.Y. App. Div. 1971).
11 The non-cumulation of liability and prior insurance provisions serve nearly identical
functions—the full title of the “prior insurance” provision is “Prior Insurance and Non
Cumulation of Liability.” Amicus focuses its discussion on exemplar policies: a Liberty Mutual
umbrella policy that provides the non-cumulation of liability clause, to which some of the excess
policies follow form, see A-518, and an Old Republic policy that provides the prior insurance
provision included in certain excess policies, see A-1176).
19
periods. These provisions expressly recognize, consistent with the insuring
agreement, that liability may flow from “personal injury” that progresses both
within and outside a given policy period and therefore implicates the obligation of
multiple insurers to cover the same liability—that is, “all sums” the insured
becomes liable to pay “as damages, direct and consequential” because of this
singular injury, including “death resulting at any time therefrom.”
The insurers miscast the appellant policyholders’ interpretation of the non-
cumulation of liability and prior insurance provisions as “expansions” of coverage
and then devote much of their briefing to toppling that strawman. E.g., Resp. Br.
at 22–30. These provisions are not “expansions” of coverage, but rather provisions
regulating coverage to ensure that the policyholder does not “cumulate” its
coverage to recover more than its underlying liability from its insurers. The very
presence of those limitations reflects, and is necessary because of, the expansive
grant of coverage for “all sums” of the policyholder’s liability.
1. The “prior insurance” provisions only make sense under an
“all sums” interpretation.
The prior insurance provisions before this Court read, in relevant part, as
follows:
PRIOR INSURANCE AND NON CUMULATION OF
LIABILITY
It is agreed that if any loss covered hereunder is also
covered in whole or in part under any other … policy
issued to the [insured] prior to the inception date hereof
20
the limit of liability hereon … shall be reduced by any
amounts due to the [insured] on account of such loss
under such prior insurance.
Subject to the foregoing paragraph … in the event that
personal injury … arising out of an occurrence covered
hereunder is continuing at the time of termination of this
policy the [insurer] will continue to protect the [insured]
for liability in respect of such personal injury … without
payment of additional premium.
A-1176 (Old Republic prior insurance provision) (emphases added). This policy
language contemplates that “any loss covered” by one policy might also be
“covered in whole or in part” by another where a single occurrence gives rise to
progressive injury spanning multiple policy periods. That another policy might
also cover the same liability “in whole” dooms pro rata allocation. If the liability
covered by one policy were to represent just a pro rata share of the injury that took
place during the policy period, there could never be a circumstance in which a
second, earlier policy covered that same liability “in whole.” Put another way, if
multiple, successive policies might cover the same liability “in whole,” there is no
basis for apportioning liability between the policies on the ground that each covers
a separate part of the same injury. Pro rata allocation is irreconcilable with the “in
whole” policy language; it improperly reads the words “in whole” out of contract.
See ACE Sec. Corp. v. DB Struc. Prods., 25 N.Y.3d 581, 597 (2015) (“Courts may
not by construction add or excise terms, nor distort the meanings of those used and
thereby make a new contract for the parties under the guise of interpreting the
21
writing”). The recognition that a previous policy may cover liability for a
progressive injury “in whole” is, however, fully consistent with the “all sums”
interpretation.
Nor does the other half of the phrase that appears in the first paragraph of the
prior insurance provision—“in part”—suggest pro rata allocation. Another
policy’s partial coverage of liability for progressive injury is also fully consistent
with “all sums.” Consider two successive policies that have different policy limits
(say, one for $50 and one for $100), and a $100 damages award representing the
insured’s liability for a continuous injury that touched both policy periods. The
$100-limit-policy can respond to the whole loss, while the same loss may “also
[be] covered … in part” by the $50-limit-policy. The $50-limit-policy would
respond to the liability “in whole” if it could, but its limit permits it to respond to
only a portion of the loss.
The second paragraph of the prior insurance provision similarly
contemplates that a “personal injury . . . arising out of an occurrence” (i.e., a
coverage-triggering injury) may be “continuing” after the policy period ends. In
that scenario, the insurer undertakes to “continue to protect the [insured] for
liability in respect of such personal injury.” It bears repeating that “such personal
injury” includes death resulting “at any time.” A-1175. The explicit promise to
“continue to protect” the insured against liability for injury continuing “at the time
22
of termination” of the policy is inimical to the foundational pro rata proposition
that coverage is only afforded for “injur[y] during the policy period.” Resp. Br.
at 2.
2. The non-cumulation of liability provisions are similarly
incompatible with pro rata allocation.
The non-cumulation of liability provisions before the Court read, in pertinent
part, as follows:
Non-Cumulation of Liability—Same Occurrence
If the same occurrence gives rise to personal injury . . .
which occurs partly before and partly within any annual
period of this policy, the each occurrence limit and the
applicable aggregate limit or limits of this policy shall be
reduced by the amount of each payment made by the
company with respect to such occurrence, either under a
previous policy or policies of which this is a replacement,
or under this policy with respect to previous annual
periods thereof.
A-518 (Liberty Mutual non-cumulation of liability provision) (emphasis added).
As with the prior insurance provision, this language makes plain that the liability
covered under each of these policies for “personal injury” is not strictly limited to
liability for that fraction of injury that takes place within the confines of the policy
period. As noted, the insurers’ position hinges on the dogmatic assertion that their
policies cover liability for “personal injury,” and that “personal injury,” by
definition must take place during the policy period. As previously discussed,
however, by incorporating the bodily injury definition’s express inclusion of
23
“sickness or disease and death resulting at any time therefrom,” the term “personal
injury” lacks the rigid temporal limitation the insurers would place upon it. This is
reinforced by the non-cumulation of liability provision’s reference to “personal
injury . . . which occurs partly before and partly within any annual period of this
policy,” which would make no sense if “personal injury” could only occur within
the confines of the policy period.
The non-cumulation of liability provision thus recognizes that a single
occurrence may give rise to “personal injury” that traverses multiple policy periods
and triggers the obligation of multiple insurers to cover the full extent of the
policyholder’s resulting liability. To ensure that the policyholder is covered in full
for its loss, but only to that extent, the provision reduces the insurer’s obligation by
any payment made by earlier insurance—as opposed to by the amount of injury
that took place in that period.
The prior insurance and non-cumulation of liability provisions reinforce
what the definitions of “personal injury” and “occurrence” already make plain: the
words “during the policy period” operate as a coverage trigger only. See supra,
Part II.A. The non-cumulation of liability and prior insurance provisions do not
disturb the “during the policy period” trigger—they acknowledge that, once
coverage is triggered, each insurer’s duty to indemnify includes all liability
(“damages, direct or consequential”) that flows from a continuous injury.
CONCLUSION
The appropriate allocation method for the Houdaille policies must be "all
sums." The policies' references to "death resulting at any time" and
"consequential" damages," as well as the non-cumulation of liability and prior
insurance provisions, would be meaningless if pro rata allocation applied. The
only way to give meaning to all of the policy language is to resolve the first
certified question in favor of "all sums."
Respectfully submitted,
Date Completed: February 2, 2016 MOR CKIUS LLP
R da I M. Levi
raid P. Kordc
Stephanie Schuster
Christopher M. Popecki
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: (202) 739-3000
Facsimile: (202) 739-3001
gkonkel@morganlewis.com
randall.levine@morganlewis.com
stephanie.schuster@morganlewis.corn
cpopecki@morganlewis.com
David S. Cox
300 South Grand Avenue
Twenty-Second Floor
Los Angeles, California 90071
Telephone: (213) 612-2500
Facsimile: (213) 612-2501
dcox@morganlewis.com
24
1
DISCLOSURE STATEMENT
Pursuant to 22 N.Y.C.R.R. § 500.1(f), amicus curiae ITT Corporation states
as follows:
ITT Corporation attests that it has no parent and discloses the following
entities, with which ITT Corporation is related and/or affiliated: Admiral
Corporation; AIMCO Industries, Inc.; Bolton Insurance Co.; Carbon Fuel Co.;
Carbon Industries, Inc.; Computer & Equipment Leasing Corporation; Corprop
A&F, Inc.; Goulds Pumps (IPG), LLC; Goulds Pumps (NY), Inc.; Goulds Pumps
(PA), Inc.; Goulds Pumps Administration, Inc.; Goulds Pumps, LLC; Goulds
Pumps, LLC (DE); Goulds QSF LLC; GP Holding Company, Inc.; Great
American Gumball Corp.; Hartzell Aerospace; Industries QSF LLC; International
Motion Control Inc.; International Standard Electric Corp.; International
Telephone & Telegraph Corp.; ITT Aerospace Controls LLC (fka New ITT
Aerospace Controls LLC); ITT Automotive Enterprises, Inc.; ITT Bornemann
USA, Inc. (fka Bornemann Pumps Inc.); ITT Cannon LLC; ITT Cannon Mexico,
Inc.; ITT Community Development Corp.; ITT C’treat LLC; ITT Delaware
Investments LLC; ITT Engineered Valves, LLC; ITT Enidine Inc.; ITT Financial
Division of ITT Corporation; ITT Fluid Technology Corp.; ITT Fluid Technology
International, Inc.; ITT Goulds Pumps, Inc.; ITT Higbie Manufacturing Co.; ITT
Industries Asset Management LLC; ITT Industries Friction Inc.; ITT Industries
2
Holdings, Inc.; ITT Industries Luxembourg S.a.r.l. (US BRANCH); ITT
International Holdings, Inc.; ITT Manufacturing Enterprises LLC; ITT Motion
Technologies America, LLC (fka ITT Koni America LLC); ITT Remediation
Management, Inc.; ITT Resource Development LLC; ITT Thompson Industries,
Inc.; ITT Thompson International Sales Corp.; ITT Torque Systems, Inc. (fka
Cleaveland Motion Controls, Inc.); ITT Veam LLC; ITT Water & Wastewater
U.S.A., Inc.; ITT Water Technology (TX) LLC; Jarret, Inc.; Kentucky Carbon
Corp.; Koni Friction Division of ITT Motion Technologies America, LLC; Koni
NA Division of Koni NA LLC; Koni NA LLC; Leland Properties, Inc. Delaware
Paul N. Howard Co. North Carolina PCU, Inc.; Florida Premium Seat Actuation
LLC; Pure Flo LLC; RIO Bayamon Corp.; Rochester Form Machine, Inc.; Rule
Industries LLC; Sterling Stainless Tube Corp.; TDS Corporate Services LLC;
Wolverine Advanced Materials LLC; Wolverine Automotive Holdings, Inc.;
Standard Electric Algeria Bombas Bornemann S.R.L.; Bombas Goulds Argentina
S.A.; Corporacion Financiera Stnd. Elec.; ITT Australia Holdings Pty Ltd; ITT
Blakers PTY Ltd (fka Paley Pty Ltd.); ITT Blakers Unit Trust; ITT Cannon GmbH
(BELGIUM BRANCH); Brasil LTDA; ITT Bombas Goulds do Brasil Ltda.; ITT
Industries Fluid Handling do Brazil Ltda.; 1026128 Alberta Ltd; 1448170 Ontario
Limited; Bornemann Inc.; Goulds Pumps Canada, Inc.; ITT Fluid Technology
S.A.; Bornemann Pumps & Systems Co. Ltd; ITT (China) Investment Co. Ltd.;
3
ITT (China) Investment Co. Ltd. (SHANGHAI BRANCH); ITT (Shanghai) Fluid
Technology Co., Ltd.; ITT Cannon (Hong Kong) LTD China; ITT Cannon
Electronics (Shenzhen) Co. Ltd; ITT High Precision Manufactured Products
(Wuxi) Co., Ltd.; Shanghai Goulds Pumps Co. Ltd.; ITT Goulds Pumps Columbia
S.A.S.; ITT Holdings Czech Republic s.r.o.; ITT Cannon GmbH (DENMARK
BRANCH); ITT Egypt LLC; ITT Industries France S.A.S.; Koni France SARL;
Bornemann Exzenterschneckenpumpen GmbH; DITTHA GmbH; ITT Bornemann
GmbH; ITT Cannon GmbH; ITT Control Technologies EMEA GmbH (fka BE-
Controls GmbH); ITT Germany Holdings GmbH; ITT Industries Management
GmbH; ITT Motion Technologie GmbH (fka ITT Industries
Vermogensvewaltungs GmbH); Goulds Pumps, Inc. (GREECE BRANCH); ITT
Corporation India PVT. Ltd.; PT ITT Fluid Technology Indonesia; ITT Iran S.K.;
ITT Technical Services S.K.; ITT Cannon Veam Italia s.r.l.; ITT Italia s.r.l.; ITT
Italy Holdings Srl; Enidine Kabashiki Gaisha; Goulds Pumps, Inc. (JAPAN
BRANCH); ITT Cannon, Ltd.; Goulds Pumps Co. Ltd.; ITT Cannon Korea Ltd.;
Bolton International RE S.C.A.; Bolton International S.C.A.; ITT Industries Global
S.a.r.l.; ITT Industries Luxembourg S.a r.l.; ITT International Luxembourg S.a r.l.;
ITT Investments Luxembourg S.a.r.l.; Bombas Goulds de Mexico; Bornemann
S.A. DE C.V.; Industrias Thompson de Mexico S.A. de C.V. (MEXICO); ITT
Cannon de Mexico, S.A. de C.V.; European Pump Services B.V.; ITT Japan B.V.;
4
ITT Korea Holding B.V.; ITT Netherlands B.V.; Koni BV; ITT New Zealand Ltd.;
Goulds Pumps (NY), Inc. (PERU BRANCH); Industrias de Telecommunicaciones
Del Peru; ITT Fluid Technology International, Inc. (RUSSIAN BRANCH); ITT
Industries Rus LLC; ITT Saudi Company; Bornemann Pumps Asia Pte. Ltd.; ITT
Fluid Technology Asia Pte Ltd.; ITT Fluid Technology International, Inc. (SOUTH
AFRICA BRANCH); ITT Industries Spain SL; Goulds Pumps (NY), Inc.,
(TAIWAN BRANCH); ITT Cannon (Hong Kong) LTD (TAIWAN BRANCH);
ITT Fluid Technology International (Thailand) LTD.; Standard Tecknik Services;
Bornemann Middle East FZE; ITT Cannon LLC (DUBAI BRANCH); ITT Fluid
Technology International, Inc. (DUBAI BRANCH); Cleveland Motion Controls
Ltd.; ITT Corporation Ltd. (UK); ITT Industries Holdings Limited; ITT Industries
Limited; ITT Pure-Flo (UK) Ltd.; Bombas Goulds de Venezuela C.A.;
Distribuidora Arbos, C.A.
AFFIRMATION OF SERVICE
I, Stephanie Schuster, an attorney admitted to practice before the Courts of
the State of New York, hereby affirm under penalty of perjury that on February 10,
2016, I caused three true and correct copies of the brief of Amicus Curiae to be
served upon counsel for each party in this matter, via regular mail pursuant to
C.P.L.R. § 2103(b)(2). Service was made at the following addresses:
Peter A. Bellacosa
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
and
Michael P. Foradas, P.C.
Lisa G. Esayian
William T. Pruitt
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Illinois 60654
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
Attorneys for Appellant Viking Pump,
Inc.
Robin Cohen
Elizabeth A. Sherwin
Keith McKenna
KASOWITZ BENSON TORRES &
FRIEDMAN LLP
1633 Broadway
New York, New York 10019
Telephone: (212) 506-1700
Facsimile: (212) 506-1800
Attorneys for Appellant Warren
Pumps LLC
Jonathan D. Hacker
O'MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5300
and
Tancred Schiavoni
Gary Svirsky
Anton Metlitsky
Brad M. Elias
O'MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
Telephone: (212) 326-2000
Attorneys for Respondents Century
Indemnity Company, Ace Property &
Casualty Insurance Company, and
Westchester Fire Insurance Company
Mary Kay Vyskocil
Summer Craig
Alexander Li
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, New York 10017
Telephone: (212) 455-2000
Attorneys for Respondents Certain
Underwriters at Lloyd's, London
Laura S. McKay
HINKHOUSE WILLIAMS WALSH LLP
180 North Stetson Avenue, Suite
3400
Chicago, Illinois 60601
Telephone: (312) 784-5400
Attorneys for Respondents Certain
London Market Insurance
Companies, Granite State Insurance
Company, Lexington Insurance
Company, National Union Fire
Insurance Company of Pittsburgh,
Pa., OneBeacon America Insurance
Company n/k/a Lamorak Insurance
Company (as successor to
Commercial Union Insurance
Company), XL Insurance America,
Inc. (as successor to Vanguard
Insurance Company), Republic
Insurance Company n/k/a Starr
Indemnity & Liability, and The
Continental Insurance Company (as
successor by merger to Fidelity &
Casualty Company of New York)
Kathleen D. Monnes
Joseph K. Scully
John W. Cerreta
DAY PITNEY LLP
242 Trumbull Street
Hartford, Connecticut 06103
Telephone: (860) 275-0100
Attorneys for Respondent Travelers
Casualty and Surety Company f/k/a
The Aetna Casualty and Surety
Company
2
Amy R. Paulus
Mark D. Paulson
Don R. Sampen
CLAUSEN MILLER P.C.
10 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 855-1010
Attorneys for Respondent Old
Republic Insurance Company
Kristin Suga Heres
ZELLE HOFMANN VOELBEL & MASON
LLP
600 Worcester Road, Suite 101
Framingham, Massachusetts 01702
Telephone: (781) 466-0700
Christopher R. Carroll
Heather E. Simpson
CARROLL MCNULTY & KULL LLC
P.O. Box 650
Basking Ridge, New Jersey 07920
Telephone: (908) 848-6300
Attorneys for Respondent TIG
Insurance Company (as successor by
merger to International Insurance
Company, as successor by merger to
International Surplus Lines Insurance
Company (Policy No. XSI 5217 only))
Attorneys for Respondent Westport
Insurance Corporation
Stephanie Schuster
3