R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indemnity Co.
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Opinion
*********************************************** The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** R.T. VANDERBILT COMPANY, INC. v. HARTFORD ACCIDENT AND INDEMNITY COMPANY ET AL. (SC 20000) (SC 20001) (SC 20003) Robinson, C. J., and Palmer, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff, which previously mined and sold industrial talc that allegedly contained asbestos, sought, inter alia, a declaratory judgment to deter- mine, inter alia, its rights and obligations under certain insurance policies issued by the defendant insurance companies as to the costs of defending and indemnifying the plaintiff in numerous civil actions brought against it for personal injuries sustained allegedly as a result of exposure to asbestos. The defendants consisted of approximately thirty insurance companies, including H Co. and C Co., primary insurers that issued certain insurance policies to the plaintiff between 1948 and 2008, when it mined and sold talc, and L Co., M Co., and P Co., secondary insurers that issued umbrella or excess coverage to the plaintiff during that same period. Prior to trial, the court issued certain scheduling orders separating the trial into four phases, the first two of which were tried to the court and focused on issues pertaining to how defense and indem- nification costs were to be allocated between the plaintiff and the defen- dants, specifically with respect to long latency claims alleging that the claimants’ exposure to asbestos caused a series of injuries that devel- oped gradually over the course of years, thereby implicating multiple insurance policy periods. The court also considered, inter alia, whether certain pollution and occupational disease exclusions in some of the secondary insurance policies precluded coverage. After the first two phases of the trial were complete, the trial court issued memoranda of decision applying the time on the risk rule of contract law, which pro- vides for pro rata allocation of defense and indemnity costs for asbestos related disease claims, in order to determine how to allocate those costs among the parties. In doing so, the trial court adopted the continuous trigger theory of insurance coverage, pursuant to which every insurer that had issued a policy in effect from the date that a claimant was first exposed to asbestos until the date the claimant manifested an asbestos related disease is potentially liable for defense and indemnity costs. To that end, the trial court precluded the admission of expert testimony regarding the adoption of the trigger theory of liability and medical science about the timing of bodily injury from asbestos related disease. The court also adopted the unavailability of insurance exception to the time on the risk rule, pursuant to which defense and indemnity costs are allocated to the insured for periods of time during which insurance is not available. With respect to the pollution exclusions at issue, the trial court concluded that they were ambiguous as to whether they encompassed claims arising from exposure to asbestos, as opposed to claims strictly involving traditional environmental pollution, and, there- fore, that those exclusions did not preclude coverage. As to the occupa- tional disease exclusions contained in two policies issued by L Co. and P Co., the trial court concluded that those exclusions were unambiguous and that they barred coverage only for claims brought by the plaintiff’s own employees, not for claims brought by nonemployees who developed occupational diseases while using the plaintiff’s talc in the course of working for other employers. Thereafter, the plaintiff and certain defen- dants were granted permission to file interlocutory appeals with the Appellate Court pursuant to the rules of practice (§ 61-4 [a]). The Appel- late Court concluded that the trial court properly adopted, as a matter of law, a continuous trigger theory of coverage for asbestos related disease claims and, accordingly, upheld the preclusion of expert testi- mony proffered by M Co. on the timing of bodily injury from asbestos related disease. The Appellate Court also upheld the trial court’s adop- tion of an unavailability of insurance exception to the time on the risk rule and agreed with the trial court that the pollution exclusions were ambiguous and did not bar coverage for the underlying claims outside of the context of traditional environmental pollution. With respect to the occupational disease exclusions, however, the Appellate Court dis- agreed with the trial court’s determination that those exclusions were ambiguous and concluded that those exclusions unambiguously barred coverage for occupational disease claims brought not only by the plain- tiff’s own employees, but also by nonemployees who developed an occupational disease while using the plaintiff’s talc in the course of working for other employers. The Appellate Court reversed in part the judgment of the trial court, and the plaintiff and certain defendants, on the granting of certification, filed separate appeals with this court. Held: 1. The Appellate Court properly upheld the decision of the trial court to adopt a continuous trigger theory of coverage for asbestos related dis- ease claims and an unavailability of insurance exception to the time on the risk rule of contract law, and to preclude M Co.’s proffered expert testimony regarding medical science and the timing of bodily injury from asbestos related disease, and also properly upheld the trial court’s conclusion that the pollution exclusions do not bar coverage for asbestos related disease claims: following a careful examination of the appellate record and consideration of the briefs and arguments presented as to those issues, this court concluded that the Appellate Court sufficiently addressed those issues and, accordingly, adopted the relevant parts of that court’s opinion as the proper statement of the issues and the applica- ble law concerning those issues. 2. The Appellate Court correctly concluded that the language of the occupa- tional disease exclusions in the secondary insurance policies issued by L Co. and P Co. applied not only to claims brought against the plaintiff by its own employees, but clearly and unambiguously excluded from coverage claims brought by nonemployees of the plaintiff who developed asbestos related diseases while using the plaintiff’s talc in the course of working for other employers: contrary to the plaintiff’s claim that the term ‘‘occupational disease,’’ which was not specifically defined by the policies issued by L Co.
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*********************************************** The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** R.T. VANDERBILT COMPANY, INC. v. HARTFORD ACCIDENT AND INDEMNITY COMPANY ET AL. (SC 20000) (SC 20001) (SC 20003) Robinson, C. J., and Palmer, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff, which previously mined and sold industrial talc that allegedly contained asbestos, sought, inter alia, a declaratory judgment to deter- mine, inter alia, its rights and obligations under certain insurance policies issued by the defendant insurance companies as to the costs of defending and indemnifying the plaintiff in numerous civil actions brought against it for personal injuries sustained allegedly as a result of exposure to asbestos. The defendants consisted of approximately thirty insurance companies, including H Co. and C Co., primary insurers that issued certain insurance policies to the plaintiff between 1948 and 2008, when it mined and sold talc, and L Co., M Co., and P Co., secondary insurers that issued umbrella or excess coverage to the plaintiff during that same period. Prior to trial, the court issued certain scheduling orders separating the trial into four phases, the first two of which were tried to the court and focused on issues pertaining to how defense and indem- nification costs were to be allocated between the plaintiff and the defen- dants, specifically with respect to long latency claims alleging that the claimants’ exposure to asbestos caused a series of injuries that devel- oped gradually over the course of years, thereby implicating multiple insurance policy periods. The court also considered, inter alia, whether certain pollution and occupational disease exclusions in some of the secondary insurance policies precluded coverage. After the first two phases of the trial were complete, the trial court issued memoranda of decision applying the time on the risk rule of contract law, which pro- vides for pro rata allocation of defense and indemnity costs for asbestos related disease claims, in order to determine how to allocate those costs among the parties. In doing so, the trial court adopted the continuous trigger theory of insurance coverage, pursuant to which every insurer that had issued a policy in effect from the date that a claimant was first exposed to asbestos until the date the claimant manifested an asbestos related disease is potentially liable for defense and indemnity costs. To that end, the trial court precluded the admission of expert testimony regarding the adoption of the trigger theory of liability and medical science about the timing of bodily injury from asbestos related disease. The court also adopted the unavailability of insurance exception to the time on the risk rule, pursuant to which defense and indemnity costs are allocated to the insured for periods of time during which insurance is not available. With respect to the pollution exclusions at issue, the trial court concluded that they were ambiguous as to whether they encompassed claims arising from exposure to asbestos, as opposed to claims strictly involving traditional environmental pollution, and, there- fore, that those exclusions did not preclude coverage. As to the occupa- tional disease exclusions contained in two policies issued by L Co. and P Co., the trial court concluded that those exclusions were unambiguous and that they barred coverage only for claims brought by the plaintiff’s own employees, not for claims brought by nonemployees who developed occupational diseases while using the plaintiff’s talc in the course of working for other employers. Thereafter, the plaintiff and certain defen- dants were granted permission to file interlocutory appeals with the Appellate Court pursuant to the rules of practice (§ 61-4 [a]). The Appel- late Court concluded that the trial court properly adopted, as a matter of law, a continuous trigger theory of coverage for asbestos related disease claims and, accordingly, upheld the preclusion of expert testi- mony proffered by M Co. on the timing of bodily injury from asbestos related disease. The Appellate Court also upheld the trial court’s adop- tion of an unavailability of insurance exception to the time on the risk rule and agreed with the trial court that the pollution exclusions were ambiguous and did not bar coverage for the underlying claims outside of the context of traditional environmental pollution. With respect to the occupational disease exclusions, however, the Appellate Court dis- agreed with the trial court’s determination that those exclusions were ambiguous and concluded that those exclusions unambiguously barred coverage for occupational disease claims brought not only by the plain- tiff’s own employees, but also by nonemployees who developed an occupational disease while using the plaintiff’s talc in the course of working for other employers. The Appellate Court reversed in part the judgment of the trial court, and the plaintiff and certain defendants, on the granting of certification, filed separate appeals with this court. Held: 1. The Appellate Court properly upheld the decision of the trial court to adopt a continuous trigger theory of coverage for asbestos related dis- ease claims and an unavailability of insurance exception to the time on the risk rule of contract law, and to preclude M Co.’s proffered expert testimony regarding medical science and the timing of bodily injury from asbestos related disease, and also properly upheld the trial court’s conclusion that the pollution exclusions do not bar coverage for asbestos related disease claims: following a careful examination of the appellate record and consideration of the briefs and arguments presented as to those issues, this court concluded that the Appellate Court sufficiently addressed those issues and, accordingly, adopted the relevant parts of that court’s opinion as the proper statement of the issues and the applica- ble law concerning those issues. 2. The Appellate Court correctly concluded that the language of the occupa- tional disease exclusions in the secondary insurance policies issued by L Co. and P Co. applied not only to claims brought against the plaintiff by its own employees, but clearly and unambiguously excluded from coverage claims brought by nonemployees of the plaintiff who developed asbestos related diseases while using the plaintiff’s talc in the course of working for other employers: contrary to the plaintiff’s claim that the term ‘‘occupational disease,’’ which was not specifically defined by the policies issued by L Co. and P Co., is a term of art devoid of meaning outside of the employer-employee relationship and workers’ compensation law, that term has a meaning, as gleaned from dictionaries in print at the time the policies were issued, outside of the context of workers’ compensation law that contemplates an illness caused by fac- tors or conditions arising out of one’s employment; moreover, the occu- pational disease exclusions did not expressly limit their application to the plaintiff’s employees, whereas other exclusions in those policies expressly contained such limiting language, and the Appellate Court’s reading of the exclusion did not render the liability coverage provided by the policies meaningless, because, although the exclusions may signif- icantly limit coverage, the parties had stipulated that there were addi- tional classes of nonemployees whose claims were not barred by the occupational disease exclusions. Argued March 28—officially released October 8, 2019
Procedural History
Action for, inter alia, a declaratory judgment to deter- mine the rights of the parties in connection with certain insurance policies as to the defense and indemnification of the plaintiff in numerous civil actions brought against it for personal injuries allegedly sustained as a result of asbestos exposure, and for other relief, brought to the Superior Court in the judicial district of Hartford and transferred to the judicial district of Waterbury, Complex Litigation Docket, where Columbia Casualty Company et al. were joined as defendants; thereafter, the court, Shaban, J., denied the motions for summary judgment filed by the defendant Mt. McKinley Insurance Company et al.; subsequently, the plaintiff withdrew the complaint as against the defendant TIG Insurance Company; thereafter, the court bifurcated the trial and ordered that the parties’ declaratory judgment claims be tried to the court in four phases; subsequently, the court granted the motions for summary judgment filed by the defendant Government Employees Insurance Company and to dismiss filed by the defendant National Union Fire Insurance Company of Pittsburgh, PA, and denied the motions for summary judgment filed by the defendant National Casualty Company et al.; there- after, the first phase was tried to the court; subse- quently, Vanderbilt Minerals, LLC, was substituted as the plaintiff; thereafter, the second phase was tried to the court; subsequently, the court issued memoranda of decision; thereafter, the defendant Everest Reinsurance Company appealed and the substitute plaintiff cross appealed to the Appellate Court; subsequently, the court, Shaban, J., granted the motions filed by the sub- stitute plaintiff and the defendant Mt. McKinley Insur- ance Company for permission to appeal to the Appel- late Court; thereafter, the Appellate Court granted the motions for permission to appeal filed by the substi- tute plaintiff and the defendant Mt. McKinley Insurance Company; subsequently, the substitute plaintiff and the defendant Mt. McKinley Insurance Company filed sepa- rate appeals with the Appellate Court; thereafter, the substitute plaintiff and the defendant Everest Reinsur- ance Company filed amended appeals; subsequently, the defendant St. Paul Fire and Marine Insurance Com- pany et al. filed separate appeals and cross appeals with the Appellate Court, which consolidated the appeals and cross appeals; thereafter, the Appellate Court, Lavine, Beach, and Bear, Js., reversed in part the judg- ment of the trial court and remanded the case for further proceedings, and the substitute plaintiff and the defen- dant Mt. McKinley Insurance Company et al., on the granting of certification, filed separate appeals with this court. Affirmed. Michael J. Smith, pro hac vice, with whom were Jeffrey R. Babbin and, on the brief, Michael Menapace, Bryan W. Petrilla, pro hac vice, Laura P. Zaino, Law- rence A. Serlin, pro hac vice, Michael G. Albano, Peter R. Reynolds, Amy R. Paulus, pro hac vice, Michael L. Duffy, pro hac vice, William A. Meehan, Alexander J. Mueller, pro hac vice, Stephen T. Roberts, Robert M. Flannery, pro hac vice, Louis B. Blumenfeld, Lawrence A. Levy, pro hac vice, Matthew G. Conway, Kevin M. Haas, pro hac vice, Marianne May, pro hac vice, Michael F. Lettiero, Lawrence D. Mason, pro hac vice, John A. Lee, pro hac vice, James P. Sexton, Daniel Hargraves, pro hac vice, David A. Slossberg, John E. Rodewald, pro hac vice, and Heather L. McCoy, for the appellants in SC 20001 (defendant TIG Insurance Company et al.). John W. Cerreta, with whom were Kathleen D. Mon- nes and, on the brief, Erick M. Sandler, for the appel- lants in SC 20000 (defendant Travelers Casualty and Surety Company et al.). Jacob M. Mihm and Marilyn B. Fagelson, with whom were Proloy K. Das, Rachel Snow Kindseth and, on the brief, Stephen Hoke, for the appellant in SC 20003 and the appellees in SC 20000 and SC 20001 (substitute plaintiff). Lawrence D. Mason, pro hac vice, with whom, on the brief, were John A. Lee, pro hac vice, Michael F. Lettiero, Laura P. Zaino, Lawrence A. Serlin, pro hac vice, William A. Meehan, Alexander J. Mueller, pro hac vice, Stephen T. Roberts, pro hac vice, Robert M. Flannery, Heather L. McCoy, Jeffrey R. Babbin, Michael Menapace, Michael J. Smith, pro hac vice, Bryan W. Petrilla, pro hac vice, Matthew G. Conway, Kevin M. Haas, pro hac vice, Marianne May, pro hac vice, Louis B. Blumenfeld and Lawrence A. Levy, pro hac vice, for the appellees in SC 20003 (defendant National Casualty Company et al.). Alexander J. Mueller, pro hac vice, with whom was William A. Meehan, for the appellees (defendant Cer- tain London Market Insurers et al.). Stephanie V. Corrao and Laura A. Foggan, pro hac vice, filed a brief for the Complex Insurance Claims Litigation Association as amicus curiae in SC 20000 and SC 20001. Michael T. McCormack filed briefs for the National Association of Manufacturers as amicus curiae in SC 20000, SC 20001 and SC 20003. Opinion
ROBINSON, C. J. These certified appeals, which pres- ent us with several significant questions of insurance law, arise from coverage disputes between the plaintiff, R.T. Vanderbilt Company, Inc. (Vanderbilt),1 and the defendants, who are numerous insurance companies (insurer defendants)2 that issued primary and second- ary comprehensive general liability insurance policies to Vanderbilt between 1948 and 2008, stemming from thousands of underlying lawsuits alleging injuries from exposure to industrial talc containing asbestos that Vanderbilt mined and sold. Vanderbilt and the insurer defendants appeal, upon our granting of their petitions for certification,3 from the judgment of the Appellate Court affirming in part and reversing in part numerous interlocutory decisions made by the trial court in con- nection with the first and second phases of a complex trial between the parties. R.T. Vanderbilt Co. v. Hart- ford Accident & Indemnity Co., 171 Conn. App. 61, 75–76, 156 A.3d 539 (2017). On appeal, the insurer defen- dants claim that the Appellate Court improperly (1) upheld the trial court’s adoption of a ‘‘continuous trig- ger’’ theory of coverage for asbestos related disease claims as a matter of law and the trial court’s related preclusion of expert testimony on current medical sci- ence regarding the actual timing of bodily injury from such disease, (2) upheld the trial court’s adoption of an ‘‘unavailability of insurance’’ exception to the ‘‘time on the risk’’ rule of contract law, which provides for pro rata allocation of defense costs and indemnity for asbestos related disease claims, and (3) interpreted pollution exclusion clauses in certain insurance policies as applicable only to claims arising from ‘‘traditional’’ environmental pollution, rather than to those arising from asbestos exposure in indoor working environ- ments. In its appeal, Vanderbilt claims that the Appel- late Court improperly construed occupational disease exclusions present in certain policies as not limited to claims brought by Vanderbilt’s own employees. Because we conclude that the Appellate Court’s com- prehensive opinion properly resolved these significant issues, we affirm the judgment of the Appellate Court. The opinion of the Appellate Court aptly sets forth the relevant background facts and procedural history.4 ‘‘Vanderbilt is a Connecticut corporation engaged in the mining and sale of various chemical and mineral products. In 1948, it began to produce industrial talc through its subsidiary, Gouverneur Talc Company. Vanderbilt continued to mine and sell talc until 2008, when it ceased production and sold off the last of its inventory. ‘‘Over the past several decades, thousands of underly- ing actions have been filed against Vanderbilt in vari- ous jurisdictions throughout the United States, many of which remain pending. Those actions alleged that talc and silica mined and sold by Vanderbilt contained asbestos or otherwise caused diseases that are corre- lated to asbestos exposure, such as mesothelioma, other asbestos related cancer, and asbestosis (collec- tively, asbestos related disease). In response, Vanderbilt has taken the position that its industrial talc does not contain asbestos. From the time that it started mining talc, Vanderbilt purchased or attempted to purchase primary and secondary comprehensive general liability insurance to cover the defense and indemnity costs of asbestos related claims. ‘‘Vanderbilt brought the present action against sev- eral insurance companies that issued it primary insur- ance policies between 1948 and 2008 . . . .’’ Id., 76–77; see footnote 2 of this opinion (listing defendants). In particular, Vanderbilt alleged that its primary insurers— Hartford Accident and Indemnity Company, and Conti- nental Casualty Company, Columbia Casualty Company and Continental Insurance Company (collectively, Con- tinental) ‘‘had breached their contractual obligations to pay their proper shares of defense and indemnity costs in the underlying actions. Vanderbilt also sought a declaratory judgment as to the parties’ respective rights and responsibilities under the policies at issue. ‘‘Continental subsequently filed a [third-party] com- plaint against various insurance companies that had provided secondary coverage—umbrella or excess5— to Vanderbilt during the time that it was in the talc business.’’ (Footnote altered.) R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn. App. 77. ‘‘Vanderbilt thereafter brought direct claims against these [third-party] secondary insurers.’’ Id., 78. ‘‘Prior to the start of trial, the trial court issued a series of scheduling orders, pursuant to which it sepa- rated the trial into four phases. In the first two phases, which were tried to the court and have been completed, the court addressed Vanderbilt’s declaratory judgment claims and related counterclaims and cross claims. The primary issue before the court in those phases was how insurance obligations are to be allocated with respect to long latency6 asbestos related claims alleging injuries that occur over the course of years or even decades and, therefore, potentially implicate multiple insurance policy periods. Specifically, in Phase I, the court addressed the question of how defense costs for the underlying actions were to be allocated as between Vanderbilt and its insurers. That required a determina- tion of (1) the periods during which the defendants’ insurance policies were in effect and (2) whether Vand- erbilt should be treated as self-insured for any period so as to create an equitable obligation to contribute to the costs of its defense. In Phase II, the court considered the same questions with respect to indemnity costs. In that phase, the court also issued rulings with respect to the meaning of various policy provisions, the exhaus- tion of Vanderbilt’s primary policies, and related issues. In Phase III of the trial, which also will be tried to the court, the court plans to adjudicate the defendants’ claims for recovery of overpayment of insurance costs. In Phase IV, Vanderbilt’s breach of contract claims against its insurers are to be tried to a jury.’’ (Footnote altered.) Id., 78–79. ‘‘In addressing the allocation questions in Phases I and II, the trial court proceeded on the assumption that Connecticut follows a pro rata, [time on the risk] approach to allocating insurance obligations in long- tail cases. See footnote [6] of this opinion. Under that allocation scheme, the court assumed that a victim of asbestos related disease suffers continuous injuries commencing at the time of initial exposure to asbestos and extending until disease manifests and, therefore, that defense and indemnity costs must be allocated across all of the insurance policies on the risk (i.e., potentially liable) during that period (allocation block). The court further assumed that (1) the policyholder is responsible for a pro rata share of costs for any period during which it is uninsured or underinsured (proration to the insured), including so-called ‘orphan share’ peri- ods covered by policies that were lost, destroyed, or issued by insurers that subsequently became insolvent; but (2) Connecticut has embraced an unavailability of insurance exception pursuant to which there is no pro- ration to the insured for periods during which insurance is not available. Applying these principles to the present case, the court held evidentiary hearings during Phases I and II to determine, among other things, whether defense and indemnity insurance coverage, respectively, was available for asbestos related claims between 1948 and 2008 and, if so, whether Vanderbilt availed itself of such coverage.’’ Id., 79–80. On the basis of findings of fact rendered after Phase I,7 the trial court ‘‘determined that the allocation of defense and indemnity costs would be applied prospectively in the following manner, on the basis of a total potential exposure period of [732] months running from 1948 through 2008:8 (1) as to defense costs, Vanderbilt would be liable for 265 of the [732] months; (2) as to indemnity costs, Vanderbilt would be liable for [96] of the [732] months; and (3) Vanderbilt’s responsibility as to both defense and indemnity costs would be adjusted upward for any additional periods when there was a gap in cover- age or an insolvent insurer. The court applied these same findings, principles, and allocation rules to underlying actions that alleged harms arising from nonasbestos par- ticulates such as silica. Specifically, the court credited testimony that all of the underlying actions, whether on their face or through subsequent discovery or investiga- tion, involved claims of exposure to asbestos. ‘‘In its Phase II decision, the court also considered the applicability of two types of exclusions contained in certain of Vanderbilt’s excess and umbrella policies. The court first addressed the claim by several secondary insurers that the pollution exclusion clauses contained in their policies barred coverage for the underlying actions. The court concluded that the relevant policy language was ambiguous as applied to the asbestos related claims and, therefore, that the exclusions did not preclude coverage. The court also addressed the issue of whether occupational disease exclusions con- tained in certain secondary policies applied only to claims brought by the policyholder’s own employees. The court found that the exclusions were unambiguous and that they did, in fact, bar coverage only for claims brought by Vanderbilt’s own employees.’’ (Footnote altered.) Id., 82–83. ‘‘Following the completion of the Phase II trial, Vand- erbilt and several defendants filed appeals and cross appeals [with the Appellate Court], challenging approxi- mately twenty of the court’s conclusions and findings.’’9 Id., 83. The Appellate Court subsequently issued an opin- ion of extraordinary complexity and comprehensive- ness addressing a plethora of issues.10 With respect to the issues now before us in this certified appeal, the Appellate Court first concluded that the trial court prop- erly adopted a ‘‘continuous trigger’’ theory of coverage for asbestos related disease claims as a matter of law and, accordingly, properly precluded the admission of expert testimony on current medical science regarding the actual timing of bodily injury from such disease. Id., 118–19. The Appellate Court further upheld the trial court’s adoption of an ‘‘unavailability of insurance’’ exception to the ‘‘time on the risk’’ rule of contract law, which provides for the pro rata allocation of defense costs and indemnity for asbestos related disease claims. Id., 143. The Appellate Court then interpreted the pollu- tion exclusion clauses as applicable only to claims aris- ing from ‘‘traditional environmental pollution,’’ rather than those arising from asbestos exposure in indoor working environments. Id., 252. Finally, the Appellate Court concluded that the trial court had improperly construed the occupational disease exclusions as ‘‘bar- [ring] coverage only for occupational disease claims brought by a policyholder’s own employees and that the exclusions do not apply to complainants who developed occupational disease while using the policyholder’s pro- ducts in the course of working for another employer.’’ Id., 256. The Appellate Court rendered judgment reversing the decisions of the trial court ‘‘with respect to [its] determi- nations that (1) Vanderbilt is responsible for defense costs for the period of March 3, 1993 through April 24, 2007, (2) a default date of first exposure of January 1, 1962, applies to pending and future claims, and (3) the occupational disease exclusions in certain secondary policies apply only to claims brought by Vanderbilt’s own employees; the proper allocation methodology and the prospective application of that methodology are clarified as set forth herein . . . .’’ Id., 309. The Appel- late Court then remanded the case to the trial court ‘‘for further proceedings consistent with [its] opinion.’’ Id. These certified appeals followed. See footnote 3 of this opinion. I We begin with the claims of the numerous insurer defendants in the certified appeals docketed as Docket Nos. SC 20000 and SC 20001. See footnote 2 of this opin- ion. Specifically, they contend that the Appellate Court improperly upheld the decision of the trial court (1) adopting a ‘‘continuous trigger’’ theory of coverage for asbestos related disease claims as a matter of law, (2) precluding expert testimony on current medical science regarding the actual timing of bodily injury from asbes- tos related diseases, and (3) adopting an ‘‘unavailability of insurance’’ exception to the ‘‘time on the risk’’ rule of contract law. The insurer defendants also claim that the Appellate Court improperly interpreted pollution exclusion clauses in certain insurance policies as appli- cable only to claims arising from ‘‘traditional environ- mental pollution,’’ rather than to those arising from asbestos exposure in indoor working environments. After carefully examining the record on appeal and considering the briefs and arguments of the parties, we have concluded that the judgment of the Appellate Court should be affirmed with respect to these issues. The Appellate Court’s thorough and well reasoned opin- ion more than sufficiently addresses these certified questions, and there is no need for us to repeat the discussion contained therein. We therefore adopt parts III A, III B, and IV A of the Appellate Court’s opinion as the proper statement of the issues and the applicable law concerning those issues. See, e.g., Deutsche Bank AG v. Sebastian Holdings, Inc., 331 Conn. 379, 384, 204 A.3d 664 (2019); State v. Henderson, 330 Conn. 793, 799, 201 A.3d 389 (2019). II We next turn to Vanderbilt’s claim, in Docket No. SC 20003, that the Appellate Court incorrectly determined that occupational disease exclusion clauses in two excess policies apply to claims brought by nonemploy- ees of Vanderbilt who allegedly developed an occu- pational disease while using Vanderbilt talc at any work- place. The Appellate Court’s opinion sets forth the fol- lowing additional facts and procedural history relevant to this claim. ‘‘At trial, several of Vanderbilt’s secondary insurers [secondary insurers]11 either sought declara- tory judgments determining or raised special defenses or claims alleging that occupational disease exclusions in their policies precluded coverage for some of the underlying actions. Two versions of the occupational disease exclusion, contained in policies issued by Cer- tain Underwriters at Lloyd’s, London (Lloyd’s), and Pacific Employers Insurance Company (Pacific), are at issue.12 ‘‘The first policy at issue, Lloyd’s policy number 77/ 18503/1/PNB21250D, was in effect from May 17, 1977 through March 3, 1979. The policy contains an endorse- ment clause stating in relevant part that ‘this policy shall not apply . . . to personal injury (fatal or nonfatal) by occupational disease.’ Several other defendants issued secondary policies following form to the Lloyd’s policy.13 ‘‘The second policy at issue, Pacific policy num- ber XMO017535 (NCA15), was in effect from March 3, 1985 through March 3, 1986. It contains the following endorsement clause: ‘This policy does not apply to any liability arising out of: Occupational Disease.’ National Casualty [Company (National Casualty)], [a secondary insurer that] has taken the lead in challenging the trial court’s rulings regarding the occupational disease exclusions, issued an excess policy, number XU000233, which follows form to the Pacific policy. Lloyd’s also issued an excess policy that follows form to the Pacific policy. None of the relevant policies defines the term ‘occupational disease.’ ‘‘In addition to these occupational disease exclusions, the Lloyd’s and Pacific policies contain employers’ lia- bility exclusions. The Lloyd’s policy provides that ‘this policy shall not apply . . . to the liability of employ- ees.’ The Pacific policy provides that ‘[t]his policy does not apply to personal injury to any employee of the insured arising out of and in the course of his employ- ment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury.’ In addition, National Casualty’s excess policy, while following form to the Pacific policy, also includes its own ‘employers liability exclusion,’ which is somewhat broader than the one in the Pacific policy. It provides in relevant part: ‘[T]his policy shall not apply to any liability for bodily injury, sickness, disease, disability or shock, including death at any time resulting therefrom . . . sustained by any employee of the insured and arising out of and in the course of his employment by the insured.’ Last, both the Lloyd’s and Pacific policies contain exclusions for obligations for which the insured may be held liable under workers’ compensation, unemployment compensation, or dis- ability benefits laws. ‘‘To facilitate the trial court’s resolution of the issue, the parties stipulated during the second phase of the trial that none of the claimants in the underlying actions [is] or ever [was a] Vanderbilt [employee]. The parties further stipulated that the underlying complaints fall into three categories: those that allege (1) exposure to Vanderbilt products solely through the workplace of another employer, (2) exposure both in and outside the workplace, and (3) exposure solely outside the work- place. Accordingly, if the occupational disease exclu- sions do apply to nonemployees of Vanderbilt, they likely will bar coverage for some but not all of the underlying complaints during the relevant policy years.14 ‘‘In its Phase II decision, the trial court concluded that the occupational disease exclusions apply only to claims brought by Vanderbilt’s own employees. Because the policies themselves do not define the term ‘occupational disease,’ the court looked to the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., for a definition of the term. Section 31-275 (15) provides that ‘ ‘‘[o]ccupational disease’’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.’ The trial court concluded that the term, as defined in the statute, was unambiguous, and that it applied solely to employ- ees of the insured. The court rejected the defendants’ argument that such a construction would render the occupational disease exclusion superfluous, insofar as the employers’ liability exclusions in the policies already preclude coverage for any claims of workplace injury or disease by employees of the policyholder. The court reasoned that the act draws a distinction between occupational diseases; General Statutes § 31-275 (15); and ‘ ‘‘[p]ersonal injur[ies]’’ ’; General Statutes § 31-275 (16); and that the policies at issue incorporate that distinction—whereas the occupational disease exclu- sion applies to employees of an insured who allege occupational diseases, the employers’ liability exclu- sion applies to employees who allege that they have suffered sudden personal injuries while on the job. ‘‘Because the court agreed with Vanderbilt that the occupational disease exclusions do not apply to any of the underlying claims, the court did not address Vander- bilt’s alternative arguments that (1) in the event that the policy language is determined to be ambiguous, the exclusions should be construed in favor of the insured pursuant to the doctrine of contra proferentem, and (2) certain of the defendants have waived their right to invoke the exclusions.’’ (Footnote added; footnote altered; footnotes in original.) R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn. App. 256–59. On appeal, the Appellate Court disagreed with the trial court’s construction of the occupational disease exclusions, concluding instead that they ‘‘unambig- uously bar coverage for occupational disease claims brought not only by employees of Vanderbilt but also by individuals who contracted an occupational disease in the course of their work for other employers.’’ (Foot- note omitted.) Id., 269–70. In concluding that the lan- guage of the exclusions was plain and unambiguous, the Appellate Court rejected Vanderbilt’s ‘‘primary argu- ment,’’ namely, ‘‘that the term occupational disease is so interwoven with the concept of workers’ compensation and other claims by an employee against his employer as to be meaningless outside of that particular context.’’ (Internal quotation marks omitted.) Id., 262–63. The Appellate Court also observed that, when the policies were drafted ‘‘between the late 1970s and mid-1980s, ‘occupational disease’ had a common and ordinary meaning within the legal and insurance fields.’’15 Id., 263–64. The Appellate Court also relied on the rules of contract construction and noted that the employer liability exclusions were expressly limited to employ- ees of the insured, whereas the ‘‘occupational disease exclusions are framed broadly and do not contain any similar language of limitation . . . .’’ Id., 269. Accord- ingly, the Appellate Court reversed the judgment of the trial court with respect to the occupational disease exclusions and remanded the case to the trial court with direction ‘‘to consider Vanderbilt’s alternative argument that certain defendants are precluded from invoking the exclusions because they failed to timely plead the exclusions as a special defense.’’ Id., 270. On appeal, Vanderbilt claims that the Appellate Court improperly failed to limit the application of the occupa- tional disease exclusions to claims brought against Vanderbilt by its own employees. Vanderbilt relies on case law and legal dictionaries; see, e.g., Ins. Co. of North America v. Forty-Eight Insulations, Inc., 451 F. Supp. 1230 (E.D. Mich. 1978), aff’d, 633 F.2d 1212 (6th Cir. 1980); Nolan v. Johns-Manville Asbestos & Magne- sia Materials Co., 74 Ill. App. 3d 778, 392 N.E.2d 1352 (1979), aff’d, 85 Ill. 2d 161, 421 N.E.2d 864 (1981); Com- mercial Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 698 A.2d 1167, cert. denied, 348 Md. 205, 703 A.2d 147 (1997); Black’s Law Dictionary (5th Ed. 1979); and argues that the term ‘‘ ‘occupational disease’ is a term of art that refers only to disputes between [the] employer and [the] employee or to statutory compen- sation plans for employees.’’ Vanderbilt also contends that the Appellate Court’s interpretation of the term ‘‘occupational disease’’ is inconsistent with the long- standing rules by which we construe insurance policies and their exclusions, in particular that an insurer bears a heightened burden in proving the applicability of an exclusion and that ambiguous exclusions are construed in favor of the insured. Supported by the amicus curiae National Association of Manufacturers, Vanderbilt con- tends that the Appellate Court’s construction of the exclusion to the contrary ‘‘dramatically reduce[s] gen- eral liability coverage for manufacturers, particularly in the context of claims of disease resulting from alleged exposure to asbestos and other industrial products.’’ In response, National Casualty, leading the secondary insurers, argues that the occupational disease exclu- sions are plain and unambiguous. Citing, among other cases, Ricigliano v. Ideal Forging Corp., 280 Conn. 723, 912 A.2d 462 (2006), National Casualty contends that the phrase ‘‘occupational disease’’ has a plain meaning beyond the narrow workers’ compensation context insofar as ‘‘an ‘occupational disease’ is a disease arising from engaging in one’s occupation—if an employee develops a condition arising out of his or her employ- ment, that employee has an ‘occupational disease,’ no matter where that employee works.’’ (Emphasis added.) Responding to Vanderbilt’s historical and contextual analysis of the term, National Casualty relies on TKK USA, Inc. v. Safety National Casualty Corp., 727 F.3d 782 (7th Cir. 2013), Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011), Wyness v. Armstrong World Industries, Inc., 171 Ill. App. 3d 676, 525 N.E.2d 907 (1988), Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.3d 851 (2013), and United National Ins. Co. v. J.H. France Refractories Co., 36 Pa. D. & C.4th 400, 409–10 (C.P. 1996), to contend that the meaning of the phrase ‘‘occu- pational disease’’ has not changed over time ‘‘from the pre-workers’ compensation era to the present’’; instead, only the remedies available for such illness claims have changed, with the addition of workers’ compensation coverage in the first instance. National Casualty also argues that Vanderbilt’s proffered construction of the occupational disease exclusions violates rules of con- tract interpretation by adding nonexistent language and rendering the exclusions ‘‘redundant, as the policies at issue contain [e]mployers’ [l]iability and [w]orkers’ [c]ompensation exclusions that act specifically to bar Vanderbilt employees’ workplace related claims.’’ National Casualty emphasizes that the occupational dis- ease exclusions were ‘‘stand-alone provisions outside of the base policy forms and, consequently, readily iden- tifiable,’’ meaning that either Vanderbilt or its sophisti- cated brokers, acting as its agent, ‘‘knew exactly the scope and limitations of the coverage Vanderbilt was procuring,’’ rendering that coverage still meaningful with respect to asbestos exposure that was even par- tially outside the workplace. In resolving this question of first impression nationally, we agree with National Casualty and conclude that the Appellate Court prop- erly interpreted the occupational disease exclusions to exclude occupational disease claims brought against Vanderbilt by both its employees and nonemployees. We begin with well established principles governing the interpretation of insurance policies. ‘‘[C]onstruction of a contract of insurance presents a question of law for the [trial] court which this court reviews de novo. . . . The determinative question is the intent of the parties, that is, what coverage the [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . In evalu- ating the expectations of the parties, we are mindful of the principle that provisions in insurance contracts must be construed as laymen would understand [them] and not according to the interpretation of sophisticated underwriters and that the policyholder’s expectations should be protected as long as they are objectively reasonable from the layman’s point of view. . . . [W]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] inter- pretations, that which will sustain the claim and cover the loss must, in preference, be adopted. . . . [T]his rule of construction favorable to the insured extends to exclusion clauses. . . . When construing exclusion clauses, the language should be construed in favor of the insured unless it has a high degree of certainty that the policy language clearly and unambiguously excludes the claim. . . . While the insured bears the burden of proving coverage, the insurer bears the bur- den of proving that an exclusion to coverage applies.’’ (Citations omitted; internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Pasiak, 327 Conn. 225, 238–39, 173 A.3d 888 (2017); see, e.g., Travelers Casu- alty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 740, 95 A.3d 1031 (2014) (‘‘[U]nambigu- ous terms are to be given their plain and ordinary mean- ing. . . . As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading.’’ [Internal quota- tion marks omitted.]). But see Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., supra, 740–41 (noting that contra proferentem rule does not apply in disputes between insurers). ‘‘[A]lthough policy exclusions are strictly construed in favor of the insured . . . the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambig- uous.’’ (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009). We begin with the language of the occupational dis- ease exclusions at issue. The first policy at issue, Lloyd’s policy number 77/18503/1/PNB21250D, was in effect from May 17, 1977 through March 3, 1979. The occupa- tional disease exclusion for this policy is contained in an endorsement stating that ‘‘this policy shall not apply . . . to personal injury (fatal or nonfatal) by occupa- tional disease.’’ The second policy at issue, Pacific pol- icy number XMO017535 (NCA15), was in effect from March 3, 1985 through March 3, 1986. It contains the following endorsement with an occupational disease exclusion: ‘‘This policy does not apply to any liability arising out of: Occupational Disease.’’ Because neither of the policies at issue defines the term ‘‘occupational disease,’’ our analysis begins with its ordinary meaning, as ascertained from dictionaries contemporary to the 1970s and 1980s, when the policies were issued. See, e.g., Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, 42 n.8, 84 A.3d 1167 (2014); R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 463, 870 A.2d 1048 (2005); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 539, 791 A.2d 489 (2002). The Random House Dic- tionary of the English Language Unabridged (1966) p. 996, defines ‘‘occupational disease’’ as synonymous with ‘‘industrial disease,’’ namely, ‘‘a disease caused by the conditions or hazards of a particular occupation.’’ Similarly, Webster’s Third New International Dictionary (1961) pp. 1560–61, defines ‘‘[o]ccupational disease’’ as ‘‘an illness caused by factors arising from one’s occupa- tion
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R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indemnity Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/rt-vanderbilt-co-inc-v-hartford-accident-indemnity-co-conn-2019.