Celotex Corp. v. AIU Insurance (In re Celotex Corp.)

149 B.R. 997, 6 Fla. L. Weekly Fed. B 372, 1993 Bankr. LEXIS 68
United States Bankruptcy Court, M.D. Florida·Decided January 26, 1993·No. Bankruptcy Nos. 90-10016-8B1, 90-10017-8B1; Adv. No. 91-40·Published·Cited by 5 cases

Opinion

ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT

THOMAS E. BAYNES, Jr., Bankruptcy Judge.

THIS CAUSE came on for hearing upon the Insurance Company’s1 Motion for Partial Summary Judgment as to Count One Regarding Debtor’s Claim for Insurance Outside of the “Products Hazard” for Asbestos-in-Building Claims and Debtor’s Motion for Partial Summary Judgment that the Definition of “Products Liability” Claims Does Not Include Alleged Negligent Failure to Provide Warnings in Connection with the Sale of Products Containing Asbestos. The Court, having heard the argument of counsel and having reviewed the record, finds as follows:

Debtor seeks a declaration that the definition of “products liability” or “products hazard” does not encompass liability for asbestos-related property damage2 resulting from Debtor’s alleged negligent failure to warn of the potential hazards arising from Debtor’s asbestos-containing products and Debtor’s insurance coverage is therefore not subject to the limits of liability imposed by the products hazard provisions.3 Debtor asserts a distinction must be made between those claims founded in strict liability, which requires a showing of a defective product, and those claims alleging mere negligent failure to warn, which does not require a showing of a defect in [1000]*1000the product involved in the injury. Debtor maintains the claims for negligent failure to warn only involve Debtor’s alleged negligent failure to warn of the potential harm that could result from using asbestos-containing products, rather than a failure to warn of actual defects in those products. Thus, Debtor argues the claims are not directly related to products liability. Debt- or’s Motion further asserts that its asbestos-containing products were not defective since they complied with existing government regulations as to permissible levels for exposure to asbestos at the time the products were supplied and the products performed as specified.

Debtor goes on to state since 1972 courts have widely recognized the term “products liability” in standard form insurance policies does not include liability where the product was not defective or where no faulty manufacture was involved. Debtor states that despite the existence of these cases, the Insurance Company did not alter its policies to provide a specific inclusion of failure to warn claims in the definition of products liability.

The Insurance Company’s Motion seeks a determination that the asbestos-related property damage claims are covered, if at all, under the products hazard provisions of the relevant policies and are therefore subject to the applicable limits of liability for products hazard coverage. The Insurance Company contends the property damage claims, which generally seek recovery for costs associated with inspection of buildings for asbestos-related problems and the costs of encapsulation and removal of asbestos from the buildings, are directly related to Debtor’s products regardless of the theory upon which recovery is based (e.g., negligence, strict liability, breach of warranty, conspiracy, intentional conduct). The Insurance Company cites various cases to support its theory that as long as the claims arise out of Debtor’s products, they are covered exclusively by the products hazard policy provisions. The Insurance Company goes on to argue that permitting coverage to Debtor under the general liability provisions of the policies would mean Debtor would be able to avoid the restrictions of the products hazard provisions in every case in which the underlying claimant alleged wrongdoing on Debtor’s part beyond the mere production of a defective product. Consequently, the Insurance Company asserts, under Debtor’s theory, the more reprehensible Debtor’s conduct, the more insurance coverage available.

The Insurance Company also points to the following language as illustrative of the relevant policies’ definition of products hazard:4

“Products hazard” includes bodily injury and property damage arising out of the named insured’s products ..., but only if the ... property damage occurs away from the premises owned by ... the named insured and after physical possession of such products has been relinquished to others.

Thus, the Insurance Company urges the relevant inquiry is not necessarily the theory of liability pursued by an injured party, but the manner in which the victim was injured. If the injury arose out of Debtor’s products, occurred away from Debtor’s premises and occurred after physical possession of the product had been transferred, the claim is covered solely as products liability.5

DISCUSSION

This Court finds the clear language of the relevant insurance policies and the [1001]*1001case law support the conclusion that damages resulting from negligent failure to warn of the risks of use of asbestos-containing products in buildings are intimately related to the products themselves and should be covered exclusively by the products liability provisions of the insurance policies. The key language in the definition of products hazard or products liability claims, as stated above, is “property damage arising out of the named insured’s products.” The primary issue here is what claims do or do not arise out of Debtor’s products.

Debtor has cited several cases involving negligent actions on the part of an insured that were sufficiently separate from the nature of the products so as to avoid the products liability provisions of the insured’s policies. Scarborough v. Northern Assur. Co. of America, 718 F.2d 130 (5th Cir.1983) (injury resulting from use of sand in sandblasting operations is not within products liability provision of policy where there was no defect in the product, merely negligent failure to warn of dangers in using and inhaling product); Florida Farm Bureau Mut. Ins. Co. v. Gaskins, 405 So.2d 1013 (Fla. 1st DCA 1981) (product merely an instrumentality of the injury, and therefore not within products hazard provision of policy, where chemical supplier negligently supplied herbicide rather than insecticide to customer); Hartford Mut. Ins. Co. v. Moorhead, 396 Pa.Super. 234, 578 A.2d 492 (1990), appeal denied, 527 Pa. 617, 590 A.2d 757 (1991) (injury from explosion resulting from improper utilization of sulfur strips to fumigate used whiskey barrel not covered by products hazard provision). Debtor claims its own liability for alleged negligent failure to warn is sufficiently removed from the nature of its asbestos-containing products to warrant classification as something other than products liability. Debtor asserts that unless the claim of failure to warn necessarily involves an allegation of the existence of a defective product, the products liability exclusions are not implicated.

In this case, however, the Court finds the alleged damages resulting from the failure to warn of the dangers involved in the use of the asbestos-containing products are sufficiently tied to the nature of Debtor’s products to warrant denominating the liability as products hazard. The damages are not alleged to have resulted from the misuse of a product which is ordinarily not dangerous.

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Celotex Corp. v. AIU Insurance (In re Celotex Corp.), 149 B.R. 997, 6 Fla. L. Weekly Fed. B 372, 1993 Bankr. LEXIS 68 (Fla. 1993).

149 B.R. 997 (Celotex Corp. v. AIU Insurance (In re Celotex Corp.)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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