Benjamin Moore & Co. v. Aetna Casualty & Surety Co.

843 A.2d 1094, 179 N.J. 87, 2004 N.J. LEXIS 151
CourtSupreme Court of New Jersey
DecidedMarch 24, 2004
StatusPublished
Cited by56 cases

This text of 843 A.2d 1094 (Benjamin Moore & Co. v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benjamin Moore & Co. v. Aetna Casualty & Surety Co., 843 A.2d 1094, 179 N.J. 87, 2004 N.J. LEXIS 151 (N.J. 2004).

Opinions

Justice LONG

delivered the opinion of the Court.

Because of the scientific uncertainties inherent in pinpointing the onset and course of progressive environmental injury, tradi[91]*91tional liability insurance contract language did not resolve the question of when an “occurrence” takes place in that context. In Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 650 A.2d 974 (1994), we adopted the continuous-trigger theory, which posits that such injury occurs during each phase of environmental contamination from exposure to manifestation. Id. at 451, 650 A.2d 974. We held such injury to be an “occurrence” triggering each applicable insurance policy. We likewise devised a method to quantify the amount of injury to which each policy would be required to respond, thereafter allowing long-tail environmental damage to fall within the ordinary insurance paradigm (coverage for losses within the policy period in accordance with the terms and conditions of the applicable insurance contract). In Carter-Wallace, Inc. v. Admiral Insurance Co., 154 N.J. 312, 712 A.2d 1116 (1998), we applied the Owens-Illinois methodology to evaluate the relative responsibility of primary and excess insurers, holding that although damages are determined without reference to excess layers, each layer of excess insurance must be exhausted in each policy year before the next layer is reached.

This ease presents the novel issue of whether, in a long-tail environmental exposure case, an insured must satisfy the full deductible for each triggered policy before it is entitled to indemnity from the insurer, or whether the deductibles should be allocated in some fashion. The trial court and the Appellate Division both held that the full per-oeeurrenee deductible in each triggered policy must be satisfied before the insured is entitled to indemnity. Because that conclusion fully accords with what we envisioned in Owens-Illinois, we now affirm.

I

In 2000, Benjamin Moore & Company filed a declaratory judgment action seeking defense and indemnity from Lumbermens Mutual Casualty Company in connection with two class action law suits alleging bodily injury and property damage as a result of exposure to lead paint distributed by Benjamin Moore. The suit [92]*92was based on Lumbermens’s issuance of five Comprehensive General Liability (CGL) insurance policies to Benjamin Moore covering the eleven year period between September 30, 1990, and September 30, 2001. The policies can be described as follows:

Policy Number Policy Period Limits Deductible

3YL 950 740-00 9/30/90-9/30/91 $1 million per occurrence $500,000

3YL 950 894-00 9/30/91-9/30/92 $1 million per occurrence $500,000

3YL 950 894-01 9/30/92-9/30/93 $1 million per occurrence $250,000 1

5YL 950 894-02 9/30/93-9/30/94 $1 million per occurrence $250,000

9/30/94-9/30/95 $1 million per occurrence $250,000

9/30/95-9/30/96 $1 million per occurrence $250,000

9/30/96-9/30/97 $1 million per occurrence $250,000

9/30/97-9/30/98 $1 million per occurrence $250,000

5YL 950 894-03 9/30/98-9/30/99 $1 million per occurrence $250,000

9/30/99-9/30/00 $1 million per occurrence $250,000

9/30/00-9/30/01 $1 million per occurrence $250,000

It is undisputed that for each “occurrence” covered under the several policies, Benjamin Moore had agreed to pay either the first $500,000 or the first $250,000 of the loss, and Lumbermens had agreed to pay the remaining $500,000 or $750,000 of the loss, depending on the applicable deductible. An underwriting consultant employed by Lumbermens expressed the view that due to the deductibles, the premiums that Benjamin Moore paid were lower than they would have been had it sought “guaranteed cost or first-[93]*93dollar primary coverage for the same limits in the same policy period[.]”

The deductibles are contained in what is denominated as the “Deductible Liability Endorsement” (DLE). The DLE modifies and amends' certain aspects of the policies. Although the language contained in the DLE varies slightly from policy to policy, the parties do not claim that any minor language variation is material to the issue presented for our review.

The following language comes from a representative DLE. The section entitled “Deductible Amount” states:

A. Our obligation to pay damages on behalf of the insured applies only to that amount of the limits of insurance that remains after deducting the Deductible Amount stated in the schedule of this endorsement.
B. The Deductible Amount applies to all damages and claim expense for all coverage of this policy combined as the result of any one “occurrence” for bodily injury and property damage combined, and per person or organization for any other covered injury or damage.
C. In addition to amounts we pay as damages, amounts you pay or reimburse us for damages paid within the deductible will use up the applicable limits of insurance, including the aggregate limits.
D. Nothing in this endorsement shall obligate us to pay any amount after the applicable limit of insurance has been used up in the payment of judgments or settlements.

The subject of “Allocation of Costs of Defense, Investigation and Settlement” contains the following language:

A. When the total amount of all damages and claim expense paid for all claims or “suits” as a result of any one “occurrence” or offense does not exceed the Deductible Amount, we will not be obligated to pay any part of the claim expense.
B. When the total amount of damages and claim expense paid for all claims or “suits” as a result of any one “occurrence” of offense is in excess of the Deductible Amount, we will be obligated to pay that part of the claim expense that exceeds the Deductible Amount.

In essence, the DLE provides that the insurer is obligated to pay only the amount of the insurance limit left after subtracting the deductible and that the deductible applies on a per occurrence basis.

The parties filed cross-motions for summary judgment. Benjamin Moore sought an order permitting it to choose the Lumber[94]*94mens’s policy under which it would be defended and ordering that it only be required to pay one deductible. Alternatively, Benjamin Moore requested that the trial court “order that deductibles in multiple, consecutively triggered insurance policies be allocated on the same basis as insurance coverage is allocated” under Owens-Illinois and Carter-Wallace. Lumbermens sought a declaration that Benjamin Moore must “satisfy each per occurrence deductible in each triggered policy without proration before Benjamin Moore [is] entitled to coverage.”

The trial court recognized that neither Owens-Illinois nor Carter-Wallace had addressed the precise question before it but took guidance from the principles established in those cases.

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Bluebook (online)
843 A.2d 1094, 179 N.J. 87, 2004 N.J. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-moore-co-v-aetna-casualty-surety-co-nj-2004.