Continental Casualty Co. v. Rapid-American Corp.

609 N.E.2d 506, 80 N.Y.2d 640, 593 N.Y.S.2d 966, 1993 N.Y. LEXIS 81
CourtNew York Court of Appeals
DecidedFebruary 11, 1993
StatusPublished
Cited by434 cases

This text of 609 N.E.2d 506 (Continental Casualty Co. v. Rapid-American Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Casualty Co. v. Rapid-American Corp., 609 N.E.2d 506, 80 N.Y.2d 640, 593 N.Y.S.2d 966, 1993 N.Y. LEXIS 81 (N.Y. 1993).

Opinion

OPINION OF THE COURT

Kaye, J.

At issue before us is an insurer’s duty to defend actions for personal injuries sustained through exposure to asbestos products manufactured by the insured’s predecessor corporation. We resolve the questions raised in favor of the insured, concluding that in the circumstances presented, the standard form comprehensive general liability (CGL) policy requires defense of the actions.

Plaintiffs, Continental Casualty Company and Transportation Insurance Company (collectively CNA), issued four CGL policies covering the period January 1, 1971 through January 1, 1980 to defendant Rapid American Corporation (Rapid) and its predecessor Glen Alden Corporation, both successor corporations to Philip Carey Manufacturing Corporation. The policies require CNA to pay on behalf of the insured all damages for bodily injury, property damage, personal injury or employer’s malpractice liability "caused by or arising out of an occurrence happening during the policy period.” "Occurrence” is defined as "an accident or a happening or event or a continued or repeated exposure to conditions which unexpectedly and unintentionally results during the policy period in Bodily Injury, or Property Damage or Personal Injury, or Employer’s Malpractice Liability.” "Bodily Injury” is defined as "bodily injury, mental injury, mental anguish, shock, sickness, disease or disability, including death resulting therefrom sustained by any person.”

The policies also contain "pollution exclusions” providing that they do not apply:

"To personal injury or property damage arising out of the discharge, dispersal, release or escape of [647]*647smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”

Finally, the policies impose upon CNA the duty to defend any suit against the insured seeking damages payable under the policies "even if any of the allegations of the suit are groundless, false or fraudulent.”

Defendant National Union Fire Insurance Company of Pittsburgh (National) became Rapid’s primary CGL carrier after January 1, 1979. On or about that date, CNA and National entered into an indemnity agreement acknowledging the intention of CNA and National that all CGL-covered losses occurring on or after January 1, 1979 would be covered by National and not CNA.

Philip Carey Manufacturing Corporation was engaged in manufacturing and distributing asbestos products, and Rapid, as one of its successors, inherited Philip Carey asbestos-related liabilities. From October 1990 forward, Rapid timely notified CNA of 14 asbestos-related bodily injury actions brought against it and requested CNA to defend and indemnify. The complaints alleged personal injury and wrongful death suffered by contractors such as electricians, insulators, steelworkers and carpenters who had worked with or around the Philip Carey asbestos products for sustained periods of time from the 1950’s through the 1980’s. CNA disclaimed coverage and brought this action to declare the parties’ rights and responsibilities under the policies.

Rapid thereafter sought partial summary judgment declaring that CNA was obligated to defend the underlying asbestos suits. CNA cross-moved for summary judgment declaring it had no liability under its policies and thus no duty to defend, and argued alternatively that if the court found a duty to defend, National and Rapid itself must share defense costs pro rata.

Supreme Court granted summary judgment to CNA, declaring it had no obligation to defend. The Appellate Division reversed and granted partial summary judgment to Rapid declaring that CNA must defend Rapid in the underlying suits. The Appellate Division refused to declare that National

[648]*648or Rapid should share in defense costs, finding such request premature. We now affirm.

I.

Analysis begins by setting the framework for determining the particular issues raised. This appeal involves an insurer’s duty to defend, which is "exceedingly broad” (Colon v Aetna Life & Cas. Ins. Co., 66 NY2d 6, 8). An insurer must defend whenever the four corners of the complaint suggest — or the insurer has actual knowledge of facts establishing — a reasonable possibility of coverage (Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 66-67; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311-312). The duty is broader than the insurer’s obligation to indemnify: "[t]hough policy coverage is often denominated as liability insurance’, where the insurer has made promises to defend It is clear that [the coverage] is, in fact, "litigation insurance” as well.’ ” (Seaboard Sur., 64 NY2d, at 310, supra.) Applying these established principles, we conclude that CNA must defend its insured in the asbestosrelated actions.

II.

We first address whether the underlying complaints allege an "occurrence” covered by the CNA policies. Prior to 1966, the standard CGL policy provided coverage for injury "caused by accident.” The insurance industry changed to occurrence-based coverage in 1966 to make clear that gradually occurring losses would be covered so long as they were not intentional. Thus, "occurrence” was defined to include "continuous or repeated exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected or intended from the standpoint of the insured.” (Olin Corp. v Insurance Co., 762 F Supp 548, 556 [SD NY], affd 966 F2d 718 [2d Cir]; Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo LJ 1237, 1241-1251 [1986].) The definition of occurrence in the CNA policies is a later version of this standard clause — "continued or repeated exposure to conditions which unexpectedly or unintentionally results during the policy period in Bodily Injury” — with substantially the same meaning (Olin Corp., 762 F Supp, at 562-564, supra).

CNA argues that the underlying complaints allege no "occurrences” covered by the CNA policies, that it therefore has [649]*649no indemnity liability and thus no duty to defend. This argument has two parts. First, CNA contends, the asbestos contamination alleged in the underlying suits was not "unexpected or unintentional.” Second, if there were occurrences, by Rapid’s own practical construction, they were not within the CNA policy periods. We disagree with both contentions and conclude the underlying complaints allege covered occurrences that trigger CNA’s duty to defend.

A.

For an occurrence to be covered under the CNA policies, the injury must be unexpected and unintentional. We have read such policy terms narrowly, barring recovery only when the insured intended the damages. Resulting damage can be unintended even though the act leading to the damage was intentional (McGroarty v Great Am. Ins. Co., 36 NY2d 358, 364; see also, Miller v Continental Ins. Co., 40 NY2d 675). A person may engage in behavior that involves a calculated risk without expecting that an accident will occur — in fact, people often seek insurance for just such circumstances (Allstate Ins. Co. v Zuk, 78 NY2d 41, 46; see also, City of Johnstown v Bankers Std. Ins. Co.,

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

Related

Black & Veatch Corporation v. Aspen Insurance
882 F.3d 952 (Tenth Circuit, 2018)
Olin Corp. v. Insurance Co. of North America
218 F. Supp. 3d 212 (S.D. New York, 2016)
QBE Insurance v. Adjo Contracting Corp.
121 A.D.3d 1064 (Appellate Division of the Supreme Court of New York, 2014)
Narragansett Electric Co. v. American Home Assurance Co.
999 F. Supp. 2d 511 (S.D. New York, 2014)
United Parcel Service v. Lexington Insurance Group
983 F. Supp. 2d 258 (S.D. New York, 2013)
Travelers Indemnity Co. v. Northrop Grumman Corp.
956 F. Supp. 2d 494 (S.D. New York, 2013)
RSUI Indemnity Co. v. RCG Group (USA)
890 F. Supp. 2d 315 (S.D. New York, 2012)
Xl Specialty Insurance v. Level Global Investors
874 F. Supp. 2d 263 (S.D. New York, 2012)
SPX Corp. v. Liberty Mutual Insurance
709 S.E.2d 441 (Court of Appeals of North Carolina, 2011)
Jobim v. Songs of Universal, Inc.
732 F. Supp. 2d 407 (S.D. New York, 2010)
Svensson v. Securian Life Insurance
706 F. Supp. 2d 521 (S.D. New York, 2010)
Essex Insurance Company v. Café Dupont, LLC
674 F. Supp. 2d 166 (District of Columbia, 2009)
Newmont USA Ltd v. American Home Assurance Co.
676 F. Supp. 2d 1146 (E.D. Washington, 2009)
Viking Pump, Inc. v. Century Indemnity Co.
2 A.3d 76 (Court of Chancery of Delaware, 2009)
Janart 55 West 8th L.L.C. v. Greenwich Insurance
614 F. Supp. 2d 473 (S.D. New York, 2009)
SPECIALTY NAT. INS. v. English Bros. Funeral Home
606 F. Supp. 2d 466 (S.D. New York, 2009)
U.S. Underwriters Insurance v. Tauber
604 F. Supp. 2d 521 (E.D. New York, 2009)
United National Insurance v. Granoff, Walker & Forlenza, P.C.
598 F. Supp. 2d 540 (S.D. New York, 2009)
Ocean Partners, LLC v. North River Insurance
546 F. Supp. 2d 101 (S.D. New York, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
609 N.E.2d 506, 80 N.Y.2d 640, 593 N.Y.S.2d 966, 1993 N.Y. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-casualty-co-v-rapid-american-corp-ny-1993.