While only a non-binding trial court decision, the much publicized case of North River Insurance v. Mine Safety Appliances, et al., GD-10-7432, Allegheny County, PA, Hon. S. Wettick, is a detailed discussion of whether, in asbestos cases, the continuous-trigger coverage theory in Pennsylvania, first adopted in JH France v. Allstate, 534 pa. 29 (1993), remains good law. Specifically, in North River, Judge Wettick was asked to decide whether, since science no longer supports the idea that mesothelioma begins at first exposure to asbestos, insurance coverage should continue to attach at that first exposure and continue until disease manifestation. Judge Wettick ruled that the answer is “yes” and that, notwithstanding increased scientific understanding of mesothelioma, JH France remains good law.
In reaching this decision, Judge Wettick first discussed the four possible schools of thought as to when coverage attaches in mesothelioma cases. He described the four schools thusly:
Construction 1: Only the policies in effect on the date the claimant’s disease first manifests itself provide coverage.
Construction 2: Every policy in effect at any time the claimant was exposed to asbestos provides coverage; there is no coverage after the claimant was no longer exposed to asbestos.
Construction 3: Every policy that provides coverage at any time from the date of the initial exposure to the date of manifestation covers the entire claim
Construction 4: Same as Constructions 2 and 3 with the following modification: Each insurer is required to pay only a pro rata share of the insured’s liability to be determined by the duration of a claimant’s exposure to the insured’s products during the policy periods in relation to the entire duration of the claimant’s exposure to the insured’s product.
Consistent with JH France, Judge Wettick adopted “Construction 3” and ruled that the policy period for asbestos-related cancer extends from the date of initial exposure to manifestation of the disease. Thus, every insurer which was on the risk at any time during the development of a claimant’s asbestos-related disease has an obligation to indemnify. Judge Wettick ruled that this construction was most consistent with the insured’s reasonable expectations.
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