Norfolk & Western Railway Co. v. Accident & Casualty Insurance

41 F.3d 928
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 7, 1994
DocketNo. 92-2031
StatusPublished
Cited by4 cases

This text of 41 F.3d 928 (Norfolk & Western Railway Co. v. Accident & Casualty Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norfolk & Western Railway Co. v. Accident & Casualty Insurance, 41 F.3d 928 (4th Cir. 1994).

Opinion

Affirmed in part, appeal dismissed in part, and remanded by published opinion. Judge WIDENER wrote the opinion, in which Judge NIEMEYER and Senior Judge CHAPMAN joined.

OPINION

WIDENER, Circuit Judge:

This dispute arises out of several excess liability insurance policies purchased by Norfolk and Western Railway and is before us on an interlocutory appeal from the district court’s order denying N & W’s motion for partial summary judgment and making two declarations relevant to the insurance policies. We affirm in part and dismiss the appeal in part as having been improvidently granted.

I.

The Norfolk and Western Railway Company (N & W) has been in operation for more than eighty years. N & W has operated both freight and passenger trains. A number of N & Ws present and former employees brought FELA1 damage claims against N & W for hearing loss which they claimed was caused by N & W’s negligence. More specifically, they alleged that their hearing loss was a result of N & W’s negligent operation of its railroad because of an unreasonable level of noise, its failure to abate the noise, failure to take steps to protect its employees from the noise, and failure to warn the employees about the noise.

N & W purchased numerous policies of insurance that covered the period from July 11, 1960 to July 11, 1986.2 Anticipating that a large number of noise-induced hearing loss claims will be filed against it in the future and seeking reimbursement for past claims paid, N & W filed a declaratory judgment action against several insurance company defendants. After extensive discovery, N & W filed a motion for partial summary judgment, which asked the district court to declare that noise-induced hearing loss claims are “bodily injuries” that arose out of a “single occurrence” within the terms of the policies. The defendants opposed the motion, and certain of the defendants filed a cross-motion for summary judgment. They sought a declaration that noise-induced hearing loss is an “occupational disease.”3 The district court declared that noise-induced hearing loss is an occupational disease and that a limitation of liability provision known as Paragraph 6 denies coverage for any claim in which the employee failed to cease work during the policy period. 796 P.Supp. 929. The district court also denied N & W’s motion for partial summary judgment to the extent it sought a declaration that the employees’ claims arose out of a single occurrence. N & W petitioned for permission to take an interlocutory appeal, which we granted.4

[931]*931There are three issues before us: (1) whether noise-induced hearing loss is an occupational disease within the meaning of the policies; (2) whether the Paragraph 6 limitation of liability provision correctly denies coverage for claims from employees who did not cease work because of their occupational disease; and (3) whether N & Ws negligence causing noise-induced hearing loss is a single “occurrence” out of which the employees’ claims arose within the meaning of the policies.

II.

We first turn to the issue of whether noise-induced hearing loss is an “occupational disease,” as the insurance companies contend. The district court declared that noise-induced hearing loss is an “occupational disease”. We agree with the district court. We decided that very point in a Jones Act case under FELA law in Barger v. Mayor & City Council of Baltimore, 616 F.2d 730, 732 n. 1 (4th Cir.) (recognizing hearing loss from on-the-job noise as an occupational disease), cert. denied, 449 U.S. 834, 101 S.Ct. 105, 66 L.Ed.2d 39 (1980). Present Virginia law is to the same effect. See Childress v. Beatrice Pocahontas Co., 6 Va.App. 88, 366 S.E.2d 722 (1988); Island Creek Coal Company v. Breeding, 6 Va.App. 1, 365 S.E.2d 782 (1988). We adhere to our • decision in Barger and affirm the district court on that point.

III.

We next turn to the issue of whether the district court correctly declared that Paragraph 6,5 denies coverage for claims for an occupational disease in which the employees did not cease work. Paragraph 6 reads:

This policy shall only indemnify the Assured against their liability for occupational disease in cases where the employee’s (employees’) cessation from work, as a result thereof, first occurs during the period of insurance covered by this policy.

The district court decided that Paragraph 6 was not ambiguous and that under its plain meaning, there was no coverage for liability of N & W for an occupational disease in which the employee did not cease working. It correctly relied upon Carter v. Carter, 202 Va. 892, 121 S.E.2d 482, 485 (1961), for the proposition that where the meaning of language in an insurance contract is clear, it needs no interpretation. We thus affirm the district court’s decision as it relates to Policy No. 509/68 D.D.1040.

[932]*932It should be remembered that the district court’s opinion recognized that all of the provisions in all of the policies at issue in this case are not the same, and it stated in its opinion that its decision only determined the rights of insurers whose policies contained “provisions similar in all material respects to the quoted language [used in its opinion].” We are provided in the appendix with five of the policies, four in addition to Policy No. 509/68 D.D.1040. An examination of Paragraph 6 in those four additional policies shows that at least one of them, Policy No. 509/PY333485, has a Paragraph 6 significantly different, at least in wording, from that in Policy No. 509/68 D.D.1040. Paragraph 6 in Policy No. 509/PY333485 provides:

This policy covers liability for occupational disease where the first diagnosis of the disease is made during the term of its policy.

It is apparent that because of the difference in the two Paragraphs 6 the same decision as to liability on a particular set of facts might not be called for or even permitted. We have not attempted any analysis of all of the insurance policies at issue in this ease, nor did the district court distinguish them, nor have the attorneys furnished us with any such analysis in their briefs on appeal. But because of the differences in the policy provisions we have just mentioned, we think the better course is to decide that our opinion is binding as a matter of law only as to Policy No. 509/68 D.D.1040. Whether or not the provisions of the other policies at issue in this case are similar enough for this decision to have stare decisis effect is a question which will have to be decided in the first instance by the district court on remand. Thus, we affirm the decision of the district court so far as it concerns Policy No. 509/68 D.D.1040. The appeal, so far as it concerns a construction of Paragraph 6 for all the remaining policies involved here, is dismissed without prejudice as improvidently granted. See, e.g., Parcel Tankers v.

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Bluebook (online)
41 F.3d 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-western-railway-co-v-accident-casualty-insurance-ca4-1994.