Aetna Casualty & Surety Co. v. Wallace & Gale Co. (In re Wallace & Gale Co.)

284 B.R. 560, 2002 U.S. Dist. LEXIS 20830
Procedural entryThis page is a short order in Aetna Casualty & Surety Co. v. Wallace & Gale Co. (In re Wallace & Gale Co.). Read the opinion of the Court — 275 B.R. 223
District Court, D. Maryland·Decided September 18, 2002·No. Bankruptcy No. 85-A-0092; Civ. No. PJM 94-2327·Published

Opinion

OPINION

MESSITTE, District Judge.

I.

The Court considers the claim of the Intervenors that, between 1962 and 1965, Travelers Casualty Insurance Company issued certain comprehensive general liability (CGL) policies to Wallace & Gale, Inc.,1 [561]*561the insulation contractor in bankruptcy whose insurance status is the subject of these proceedings.

In a previous Opinion, the Court granted summary judgment in favor of the Intervenors, establishing the existence and the terms and conditions of the policies in question. The Court concluded, that “(t)he evidence that CGL policies covering bodily injury claims were issued to Wallace & Gale between 1962 and 1965 is clear and positive and there is no evidence to the contrary.” In re Wallace & Gale, 275 B.R. 223, 242 (D.Md.2002). The Court further ruled that “the scope of coverage under the policies in question is no less than the minimum policy limits for Aetna’s CGL policies for the period in question,” Id. at 244, those limits being $5,000 per person, $10,000 per accident or occurrence, and a $25,000 aggregate for products and completed operations claims. One issue was left open for resolution — that of the actual limits of the policies over and above the minimum.

On June 25, 2002, the Court, as the trier of fact, held a bench trial to address that remaining issue. The Court now concludes that the limits for bodily injury liability for the policies in question were the same as those limits for the policy Wallace & Gale purchased in 1966, viz. $500,000 per person, $1,000,000 per accident or occurrence, and a $1,000,000 aggregate for products and completed operations claims.2

II.

Although it is beyond dispute that Travelers issued four policies to Wallace & Gale for the years 1962, 1963, 1964, and 1965, the declaration pages containing the limits of the policies have not been found. Travelers, however, has produced numerous documents, including retrospective rating documents, loss experience documents, and earned premium information relating to the four policies as well as the complete policy it issued to Wallace & Gale for 1966. From those documents, these facts emerge:

1) The 1966 Travelers policy, which had bodily injury limits of $500,000/ $1,000,000/$1,000,000, shows on its declaration page that it was a renewal of the 1965 policy, the last of the four policies for which the declarations page is missing. Both the 1965 and 1966 policies were written on the same ISO ’55 standard form. The Court has already ruled as a matter of law, especially in the absence of any evidence to the contrary, that the 1965 and 1966 (hence the 1962, 1963 and 1964) policies contained the same terms and conditions.
2) Both Intervenors’ expert, Leonard J. Silver, a risk and insurance management consultant, and Travelers’ expert, Clinton N. Green (a long-time Aetna employee), testified that a renewal policy usually contains the same limits as the previous policy.
3) Both experts also testified that insureds ordinarily do not alter the limits of insurance from year to year and rarely make significant increases in those limits from year to year. A ten-fold increase in the amount of limits from one year to the next would be significant. An increase in limits of 100-fold in one year would be extraordinary. Both experts thus agreed that it is unlikely that Wallace & Gale would have had minimum lim[562]*562its of $5,000/$10,000/$25,000 in 1965 and limits of $500,000/$l,000,000/ $1,000,000 in 1966.3
4) Travelers grouped the insurance policies purchased by Wallace & Gale into three-year periods for purposes of retrospectively rating the premiums.4 Travelers treated Wallace & Gale’s 1962,1963, and 1964 policies as one group for this purpose and its 1965, 1966, and 1967 policies as a second group. All six of these policies were rated under the same retrospective premium plan, “Plan D,” and all were subject to the same $10,000 loss limit per line of insurance.5
5) According to the expert, it would be quite unusual to group a policy with minimum limits of $5,000/$10,000/$25, 000 in a retrospective Plan D three-year rating plan with other policies, such as the 1966 and 1967 policies, which had limits of $500,000/$l,000, 000/$l,000,000.
6) The initial premiums for bodily injury liability coverage paid by Wallace & Gale for coverage for the 1962 through 1966 policies were consistent from year to year. Travelers’ documents show that in 1962 the initial premium was $705, in 1963 it was $779, in 1964 it was $783, and in 1966 it was $846.
7) All policies issued to Wallace & Gale between 1962 and 1973 were combined in • Travelers’ internal documents for the purpose of analyzing loss experience and determining earned premium analysis credits. The retrospective premiums for these policies, which were based on sales and payroll, remained relatively consistent over these years, given the fluctuations in Wallace & Gale’s sales over these years.
8)Both Travelers’ expert and Intervenors’ expert agreed that the retrospective premium “Plan D” policies between 1962 through 1967 contained limits greater than minimum limits.

Travelers’ expert testified that he had never encountered an insured which maintained the same limits of insurance for as many as 10 years. He further testified that, as of 1962, CGL limits of $500,000/ $1,000,000/$1,000,000 were “rare” for contractors of Wallace & Gale’s size, that they were typically purchased only by Fortune 500 manufacturers and national contractors. Only in the middle to late 1960s through the 1970s, he said, did contractors and other insureds start to buy higher limits. Even then, limits would ordinarily only have been increased on account of (a) a major loss sustained by the insured or by someone else in their industry; (b) the advice of a broker or a consultant; or (c) a principal on a new job which required its contractors to carry limits at a certain level. By this, Travelers apparently in[563]*563tends to suggest that Wallace & Gale had low limits between 1962 and 1965, but thereafter, because of intervening events, it radically raised them. This argument, however, apart from its speculative premises, is refuted by the facts:

Contrary to what Travelers suggests, the evidence shows that:

1) Wallace & Gale had a very good loss experience under the policies issued by it from 1962 through 1980 and in fact earned returns of premium based on that loss experience. (At the same time the policies were profitable for Travelers, losses being only 1/3 of the premiums collected). There is no evidence that others in Wallace & Gale’s industry suffered significant losses between 1962 and 1980 such that Wallace & Gale might have elected to dramatically increase its limits.
2) No evidence suggests that Wallace &

Free access — add to your briefcase to read the full text and ask questions with AI

Aetna Casualty & Surety Co. v. Wallace & Gale Co. (In re Wallace & Gale Co.), 284 B.R. 560, 2002 U.S. Dist. LEXIS 20830 (D. Md. 2002).

284 B.R. 560 (Aetna Casualty & Surety Co. v. Wallace & Gale Co. (In re Wallace & Gale Co.)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Emons Industries, Inc. v. Liberty Mutual Fire Insurance
545 F. Supp. 185 (S.D. New York, 1982)
City of Tacoma v. Great American Ins. Companies
897 F. Supp. 486 (W.D. Washington, 1995)
Krouse v. Krouse
617 A.2d 1098 (Court of Special Appeals of Maryland, 1993)
Barranco v. Kostens
54 A.2d 326 (Court of Appeals of Maryland, 1947)