June 2015
Practice Group:
Insurance Coverage
“Continuous” Trigger is Alive and Well in
Pennsylvania
By Joseph J. Porcello and Denise N. Yasinow
In recent years, insurers have attempted to avoid their coverage obligations for their
policyholders’ asbestos personal injury claims by challenging longstanding trigger of
coverage rulings from the 1980s and 1990s. Although the challenged rulings have involved
the application of different trigger theories (e.g., “continuous trigger,” “injury-in-fact”), insurer
arguments have focused on the same key issues: what constitutes “bodily injury” under
general liability policies and when does such an injury take place. The insurers have argued
that medical evidence regarding the progression of asbestos-related disease is evolving and
have questioned whether, for example, “bodily injury” occurs upon first exposure to asbestos,
asserting that expert testimony is now required to prove injury. The end game for the
insurers is the hope that courts will abandon well-established precedent and adopt a
coverage-defeating or coverage-reducing trigger rule that would impose an expensive and
wasteful burden of proof on policyholders. The most recent rejection of such an insurer
challenge came in North River Insurance Co. v. Mine Safety Appliances Co., No.
GD-10-007432, a coverage action pending in state court in Pennsylvania.
On June 9 and 10, 2015, Judge R. Stanton Wettick of the Court of Common Pleas of
Allegheny County, Pennsylvania, issued two notable decisions rebuffing insurer attacks on
the landmark Pennsylvania case of J.H. France Refractories Co. v. Allstate Ins. Co., 626
A.2d 502 (Pa. 1993), which is well-known for adopting a “multiple trigger” or “continuous
trigger” for asbestos claims from first exposure through manifestation of disease.
Importantly, Judge Wettick ruled that, regardless of an insurer’s purported evidence of “new
science” regarding the asbestos disease process and when “bodily injury” occurs, courts
should continue to apply J.H. France because it was based on enduring practical and
equitable insurance coverage principles, namely, the need to protect policyholders’
reasonable expectations of coverage for asbestos claims and other progressive, latent
personal injury claims. The application of a “multiple trigger” or “continuous trigger” allowed
the policyholder, Mine Safety Appliances Co. (“MSA”), to maximize the number of years of
coverage available for its underlying claims.
The Parties and Their Positions on Trigger of Coverage
Mine Safety Appliances was filed by North River Insurance Co. (“North River”) in 2010 as a
declaratory judgment action seeking a declaration that its three excess policies did not afford
MSA coverage for underlying coal dust claims. MSA counterclaimed for breach of contract
and bad faith, asserting, in part, that the underlying claims also involved other progressive,
respiratory diseases related to asbestos, such as mesothelioma and asbestosis.
The crux of the dispute between the parties was whether the underlying claims triggered
coverage. The issue of the appropriate trigger of coverage to apply to the underlying
asbestos and coal dust claims was raised on separate motions for summary judgment filed
by North River and MSA. North River argued that the court should apply a “manifestation
“Continuous” Trigger is Alive and Well in Pennsylvania
trigger,” which would have deprived MSA of coverage because all of the underlying
claimants were first diagnosed after the expiration of the last North River policy. In contrast,
MSA argued for a “multiple trigger” or “continuous trigger” by which each policy would be
triggered from the date of first exposure through manifestation of disease. If this trigger
theory were applied, the underlying claims would trigger all three North River policies.
The Court’s Decisions
In his June 9, 2015 order, Judge Wettick reinstated his prior February 13, 2014 order
granting MSA’s motion for summary judgment on the issue of continuous trigger as it relates
to asbestos related claims. Judge Wettick held that J.H. France is still good law and that the
“continuous trigger” must be applied to asbestos claims, without any consideration of North
River’s contention that the scientific community has rejected a disease process for asbestos
diseases in which the initial exposure begins the progression of illness. Judge Wettick
refused to abandon J.H. France because, as he reasoned, the result in that case was
dictated by insurance coverage principles that remain just as pertinent now as when the case
was decided. He found that the reasonable expectations of the policyholder should be
protected through an interpretation of trigger of coverage that parallels the policyholder’s
liability (here, first exposure through manifestation), and J.H. France provides such
protection.
On June 10, 2015, Judge Wettick denied North River’s motion for summary judgment on
MSA’s coal dust claims. After noting that J.H. France remains good law, the court extended
J.H. France to coal dust claims, stating: “I also find that J.H. France’s continuous-trigger
approach applies to coal dust claims because, for both coal dust and asbestos claims, the
injuries do not manifest themselves until a considerable time after the initial exposure.”
Conclusion
Judge Wettick’s dual decisions rejected insurer attacks on J.H. France and applied the
“continuous trigger” under Pennsylvania law for underlying asbestos and coal dust claims.
These decisions will allow MSA to access many more years of coverage than would have
been possible under a “manifestation trigger.” Applied more broadly, these decisions will
support other policyholders’ entitlement to the “continuous trigger” without having to litigate
any alleged new scientific evidence on disease processes.
Authors:
John J. Porcello
joseph.porcello@klgates.com
+1.412.355.6419
Denise N. Yasinow
denise.yasinow @klgates.com
+1.973.848.4036
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“Continuous” Trigger is Alive and Well in Pennsylvania
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