09/10/73

Borel v Fibreboard Products, 493 F.2d 1076 (District Court decision unpublished) (5th Cir. September 10, 1973), cert. denied, 419 U.S. 869 (October 15, 1974): Court of Appeals for the Fifth Circuit applied the doctrine of strict liability in asbestos disease cases and subjected producers to joint and several liability. Plaintiffs, in order to state a viable claim, need only show their exposure to defendants' asbestos or asbestos containing product and an asbestos-related disease. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

25/11/77

Porter v American Optical Corp., 1977 U.S. Dist. LEXIS 12735 (E.D. La. 1977): District Court applied manifestation trigger of coverage for asbestos bodily injury claims. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

04/05/78

INA v Forty-Eight Insulations, 451 F.Supp. 1230 (E.D. Mich. S.D. 1978): District Court applied exposure theory of coverage for asbestos bodily injury claims, with liability being apportioned on the basis of the relative lengths of their respective coverage. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

21/10/80

INA v Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. October 21, 1980). op. clarified 657 F.2d 814 (March 5, 1981): Court of Appeals for the Sixth Circuit upheld application of exposure theory and concluded that insurers have a duty to defend asbestos bodily injury claims brought against the manufacturers of asbestos. Court held that insurance liability would be pro-rated among all insurers on risk during exposure period, with the burden of any uninsured years falling on the producer. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

30/01/81

Keene Corp v INA 513 F.Supp.47 (D.C. Dist.Col. 1981.): District Court applied exposure theory of coverage for asbestos bodily injury claims (i.e., the same as the decision in the INA v Forty-Eight Insulations case, not triple trigger). Federal Court decision interpreting state law in the absence of a definitive State Court decision.

08/04/81

Porter v American Optical Corp., Case No. 78-1953 (U.S.D.C. E.D. La. November 25, 1977), aff'd and rev'd in part, 641 F.2d 1128 (5th Cir. April 8, 1981). Court of Appeals for the Fifth Circuit reversed District Court's application of the manifestation trigger of coverage and applied the exposure trigger for asbestos bodily injury claims. Court expressly concurred with the Sixth Circuit's Forty-Eight Insulations decision and held that insurance liability would be pro-rated among all insurers on risk during exposure period. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

14/08/81

Eagle-Picher Industries Inc v Liberty Mutual Ins. Co, 523 F.Supp. 110 (E.D. Mass. August 1981): District Court held that coverage for asbestos bodily injury is triggered when signs or symptoms become manifest, as determined by the date of actual diagnosis or, with respect to those cases in which no diagnosis was made prior to death, the date of death. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

01/10/81

Keene Corp. v INA, 513 F. Supp. 47 (D.C.C. January 30 1981) rev'd 667 F.2d 1034 (D.C. Cir. October 1, 1981): Court of Appeals for the District of Columbia Circuit applied a triple/continuous trigger of coverage for asbestos bodily injury claims. In doing so, the Circuit Court reversed the decision of the District Court limiting coverage to the exposure period. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

04/12/81

Commercial Union Ins. Co. v Pittsburgh Corning Corp. (E.D. Pa. 1981) 553 F.Supp. 425: District Court applied the exposure theory of coverage to asbestos bodily injury cases, holding in addition that the primary insurer owed an unlimited duty to defend despite exhaustion of liability limits. In 1988, in the case of Pittsburgh Corning v Travelers, cited below, the same court broadened its decision to incorporate continuous trigger, following Keene. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

07/12/81

INA v Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. Mich. October 21, 1980), op. clarified, 657 F.2d 814 (March 5, 1981), cert. denied, 454 U.S. 1109 (December 7, 1981): US Supreme Court denial of petition for writ of certiorari.

07/12/81

Porter v American Optical Corp., Case No. 78-1953 (U.S.D.C. E.D. La. November 25, 1977), aff'd and rev'd in part, 641 F.2d 1128 (5th Cir. April 8, 1981), cert. denied, 454 U.S. 1109 (December 7, 1981): US Supreme Court denial of petition for writ of certiorari.

08/03/82

Keene Corp. v I.N.A, 513 F. Supp. 47 (D.C.C. January 30, 1981), rev'd 667 F.2d 1034 (D.C. Cir. October 1, 1981), cert. denied, 455 U.S. 1007 (March 8, 1982): US Supreme Court denial of petition for writ of certiorari.

Also, on the same day, US Supreme Court denied rehearing of prior denials of petitions for writs of certiorari in Porter v American Optical Corp. 455 U.S. 1009 (March 8, 1982) and INA v Forty-Eight Insulations, Inc. 455 U.S. 1009 (March 8, 1982). The US Supreme Court denied a rehearing in Keene on 26 April 1982, 456 U.S. 951 (April 26, 1982).

30/06/82

Eagle-Picher Industries. Inc. v Liberty Mutual Ins. Co., 682 F.2d 12 (1st Cir. June 30, 1982): Court of Appeal for the First Circuit affirmed the District Court's application of the manifestation theory of coverage for asbestos bodily injury claims, rejecting Keene, but modified the appropriate definition of "manifestation date" to be not when the disease was actually diagnosed but when it becomes reasonably capable of medical diagnosis. Remanded to District Court for factual investigation as to when manifestation occurred. In August 1984, on remand, the District Court determined that asbestos-related disease becomes reasonably capable of medical diagnosis "six years prior to the date of actual diagnosis". Federal Court decision interpreting state law in the absence of a definitive State Court decision.

07/03/83

Eagle-Picher Industries. Inc. v Liberty Mutual Ins. Co., 682 F.2d 12 (1st Cir. June 30, 1982), cert. denied, 460 U.S. 1028 (March 7, 1983): US Supreme Court denial of petition for writ of certiorari.

13/06/83

American Home Products v Liberty Mutual Ins. Co., 565 F. Supp. 1485 (S.D.N.Y. 1983): The District Court refused to apply Keene to a DES case, criticizing Keene as "result-oriented" and instead applied an "injury-in-fact" trigger focusing on when disease was diagnosable and compensable. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

07/07/83

Emons Industries, Inc. v. Liberty Fire Ins. Co. United States District Court, S.D. New York 567 F.Supp. 335 (S.D.N.Y., 1983): DES case. A denial of a motion for summary judgment. In doing so the Court criticized the Keene decision on the grounds that the manifestation trigger is not an unreasonable trigger of coverage for long term disease claims. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

02/08/83

Crown, Cork & Seal Co., Inc v Aetna Casualty and Surety Co., No 1292, slip op. (Court of Common Pleas, Philadelphia August 2, 1983) (Mealey's, Asbestos Litigation Reporter, 12 August 1983 page 7,022): Pennsylvania State Trial Court, in an unpublished decision, triggered all policies in effect during exposure, exposure in residence or manifestation to indemnify and defend the insured, following Keene. A first instance State Trial Court decision and so not binding on any other court (i.e., without stare decisis, decided case status).

25/11/83

AC&S, Inc v Aetna Casualty and Surety Co., 576 F. Supp. 936 (E.D. Pa. 1983): District Court followed Keene and held that coverage was triggered by exposure, exposure in residence and manifestation and that the duty of liability insurer to defend is separate from, and broader than, the duty to indemnify, and insurers must continue to defend their insureds even after exhaustion of policy limits. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

13/11/84

American Home Products v Liberty Mutual Ins. Co., 565 F. Supp. 1485 (S.D.N.Y. 1983), aff'd as modified 748 F.2d 760 (2d Cir., 1984): The Court of Appeals for the Second Circuit affirmed the District Court's choice of "injury-in-fact" but disagreed with the District Court's finding that "injury-in-fact" was the same as "diagnosable" or "compensable" and remanded the case to the District Court for further proceedings to determine when "injury-in-fact" occurred. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

21/11/84

Owens Illinois, Inc. v Aetna Casualty & Surety Co. 597 F. Supp. 1515 (D.D.C. 1984). District Court bound by Circuit Court decision in Keene. Applied triple trigger theory of coverage for asbestos bodily injury claims. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

22/03/85

Vale Chemical v Hartford Accident and Indemnity Co. (Pa. Super. Ct. 1985), 490 A.2d 806, rev'd. on other grounds, 17 October 1986, 516 A.2d Pennsylvania: Pennsylvania Intermediate Appellate Court found DES claims implicated continuous injury from ingestion to discovery of cancer in offspring and triggered all policies in effect during the time frame, following Keene. The Pennsylvania Supreme Court reversed on procedural grounds, erasing the intermediate and lower court decisions as precedents.

17/06/85

AC&S, Inc v Aetna Casualty and Surety Co., 576 F. Supp. 936 (E.D. Pa. 1983), 764 F.2d 968 (3rd Cir. June 17, 1985): Court of Appeals for the Third Circuit affirmed the District Court's decision that exposure, exposure in residence and manifestation all trigger coverage, following Keene, but overturned the District Court's decision that there was an unlimited duty to defend, holding that an insurer has no duty to defend if it is established at the outset of the action that the insurer cannot possibly be liable for indemnification because policy limits have been exhausted (explicitly refusing to determine whether or under what circumstances an insurer may terminate its defense of a claim in "mid-course"). Federal Court decision interpreting state law in the absence of a definitive State Court decision.

23/07/85

Commercial Union Insurance Co. v Sepco Corp., 765 F.2d 1543 (11th Cir. July 23, 1985): Court of Appeals for the Eleventh Circuit upheld exposure trigger of coverage, following Porter. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

31/07/85

Lac D'Amiante du Quebec, Ltee. v American Home Assurance Co., 613 F. Supp. 1549 (D.N.J. July 31, 1985): District Court in New Jersey adopted the continuous/triple trigger of coverage for asbestos property damage and bodily injury claims. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

02/12/85

Hancock Laboratories, Inc. v. Admiral Ins. Co., 777 F.2d 520 (9th Cir. 1985): Coverage dispute arising from allegedly defective heart valves. Court of Appeal for the Ninth Circuit rejected Keene theory on the grounds that it was adopted because it was difficult to discern from medical evidence when and how an injury occurs from asbestos inhalation. Instead, it applied the exposure theory, holding that the bodily injury occurred when the defective heart valve was implanted. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

14/02/86

Aetna Casualty & Surety v Abbott Laboratories, Inc., (D.C. Circuit) 636 F.Supp. 546: District Court in Connecticut applied an "injury-in-fact" trigger of coverage to a DES case.

03/04/86

Standard Asbestos Manufacturing & Insulating Co. v Royal Indemnity Ins. Co., No. CV-80-14909, slip op. at 9 (Mo. Cir. Ct. Jackson Co. April 3, 1986) (Mealey's Litigation Reports, Insurance, 1986, page 2,424): Missouri State Trial Court, in an unpublished decision, triggered policies in effect at the time of injurious exposure only ("injury-in-fact"), rejecting Keene and following INA v Forty-Eight Insulations.

The Court commented in regard to the asbestos coverage issues: "One of the problems in insurance law is that it is result oriented. In an effort to compensate litigants, the courts have manipulated concepts of contract law and interpretations of insurance contracts and have vastly expanded theories of liability and contractual relationships. While the motive may be laudable, the result is that there is no stability in the law and no one can predict the result in any given case." A first instance State Trial Court decision and so not binding on any other court (i.e., without stare decisis, decided case status).

09/05/86

Abex Corp. v Maryland Casualty, 790 F.2d 119 (D.C. Cir. May 9, 1986): Court of Appeals for the District of Columbia applied "injury-in-fact" as trigger, refusing to follow Keene because it recognised that a different rule would result under New York law, and following the American Home Products case. In the Abex case the Court was concerned with interpreting New York law. The panel of the Court of Appeals for the District of Columbia Circuit expressed disagreement with the same Court's earlier decision in Keene. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

27/05/86

Zurich Insurance Company v Raymark Industries, Inc, 145 Ill. App. 3d 175, 494 N.E. 2d 634: Appellate Court of Illinois upheld the trial court's decision that insurance coverage for asbestos-related claims was triggered both by exposure and by manifestation but not exposure in residence (although the court did affirm the trial court's finding that if, during the "pre-disease" state, an individual "suffers from a disordered, weakened or unsound condition but it has not yet progressed to the point of impairment", he may be classified as having "sickness", which would trigger liability) ("dual trigger"). However, the court overturned the trial court's decision that insurers had a duty to defend claims even after the limits of their policies were exhausted by the payments of judgments or settlements, even in respect of pending claims. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

21/01/87

Clemtex, Inc. v Southeastern Fidelity Insurance Co., 807 F.2d 1271 (5th Cir. January 21, 1987): Court of Appeals for the Fifth Circuit, in considering the applicability of deductibility provisions, was not asked to rule on the District Court's determination that the exposure trigger of coverage applied to silicosis under Texas law. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

23/04/87

Clemco Industries v Commercial Union Ins. Co 665 F. Supp. 816, 830 (N.D. Cal 1987), aff'd mem., 848 F.2d 1242 (9th Cir 1988): Silicosis claim applying the exposure trigger and holding that insurer did not act in bad faith by refusing to embrace exposure theory, as law remained unsettled and unclear. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

29/05/87

In re Asbestos Insurance Coverage Litigation, (Armstrong World Industries, GAF, Fibreboard), tentative decision in Phase III, ultimately incorporated in the final decision entered 24 January 1990, California Superior Court, City and County of San Francisco, Judicial Council Coordinated Proceeding, (No.1072), aff'd. Armstrong World Industries 45 CA 4th 1 (Cal. Ct. App. 1996):

The Court applied a Keene type result following its own distinctive analysis of the policy wording and broadened the period of continuous trigger found in Keene, to include the period from first exposure to asbestos or asbestos-containing products until date of death or date of claim, whichever occurs first. The Court followed Keene in requiring any insurer on risk during continuous injury to pay the entire claim up to policy limits, allowed the insureds to choose which insurer would be obligated to defend and relieved the insureds of responsibility for any uninsured or self-insured periods. In addition, the Court held that insurers were not required to defend actions, or even to continue to defend pending cases, once policy limits have been exhausted, although the cost of providing a defense does not reduce primary policy limits. State Superior Court first instance decision.

14/09/87

Zurich Insurance Co. v Raymark Industries, 514 N.E.2d 150 (Ill. Supreme Court, September 14, 1987): The Supreme Court of Illinois affirmed the lower courts' findings that coverage attaches upon bodily injury, which the Court determined is concurrent with exposure, or disease, which the Court determined is diagnosability (i.e., "dual trigger) as well as sickness, which the Court determined is ill-health, a disordered, weakened or unsound condition, but not exposure-in-residence. The Court also upheld the appellate court's finding that there was no unlimited duty to defend. State Supreme Court, so binding upon Courts in that particular State.

16/09/87

Eagle-Picher Industries, Inc. v American Employers Insurance Co.,685 F. Supp. 9 (D. Mass. 1986), appeal after remand, 829 F.2d 227 (1st Cir.1987): Court of Appeals for the First Circuit affirmed and modified the District Court's decision on what constitutes manifestation. The Court of Appeals upheld the District Court's finding that manifestation is six years before the actual date of diagnosis, but allowed an insurer to bring evidence to show otherwise. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

20/01/88

Pittsburgh Corning v Travelers Indemnity Co., Civ.A. No. 84-3985 E.D. Pa. 1988, 1988 WL 5291 and 5301: In the decision reported at 1988 WL 5291 the District Court for the Eastern District of Pennsylvania determined that coverage for asbestos property damage is triggered at the time of discovery. In the decision reported at 1988 WL 5301, the District Court determined coverage for asbestos bodily injury, sickness or diseases is triggered "if any part of the injurious process... from time of exposure to time of manifestation... occurred within" the policy period. Federal Court decision interpreting state law in the absence of a definitive State Court decision.

28/12/88

Lac D'Amiante du Quebec, Ltee. v American Home Assurance Co 613 F. Supp. 1549 (D.N.J. July 31 1985)., vacated on other grounds, 864 F.2d 1033 (3d Cir. Dec. 28, 1988): Court of Appeals for the Third Circuit reversed the District Court with instructions to dismiss this action, and ruled that the District Court should have abstained from exercising jurisdiction. The lower court decision was questioned in the Third Circuit Court of Appeals' decision, but no conclusion was reached.