United States District Court, D. Connecticut
RULING ON MOTIONS FOR PARTIAL SUMMARY
W. Eginton Senior U.S. District Judge.
declaratory judgment action, plaintiff New England
Reinsurance seeks a declaration regarding the rights and
obligations of the parties to this action pursuant to certain
liability insurance policies issued to P.E. O'Hair &
Company and its successor United Westerburne Inc. After an
extensive settlement conference in June 2016, the parties
have nearly settled this action. However, defendants Ferguson
Enterprises, Inc. (as successor-in-interest to P.E.
O'Hair & Company, Inc. (“O'Hair” or
“Insured”)) and National Union Fire Insurance
Company of Pittsburgh, PA, (“National Union”) now
seek summary judgment relative to a policy for excess general
liability issued to O'Hair by National Union.
Specifically, the parties seek a determination of the
interpretation of a certain policy provision. For the
following reasons, the Court will find in favor of
Ferguson's motion for summary judgment.
to the parties' submissions, the following facts are not
was a California-based corporation that sold or distributed
plumbing supply products that contained
asbestos. O'Hair and its successors were named
as defendants in numerous asbestos-related lawsuits that were
filed largely in California.
1978, O'Hair paid premiums to National Union to purchase
excess general liability insurance to protect against
catastrophic liabilities in the event that the defense and
settlement of such liabilities exhaust the underlying primary
and umbrella policies.
Ferguson's asbestos liabilities, two policies underlying
the National Union policy are now asserted to be exhausted by
defense and indemnity payments.
National Union excess liability policy incorporates the terms
and conditions of the underlying policies. Pursuant to the
relevant insurance terms, National Union agreed,
“subject to the limitations, terms and conditions
herein mentioned, to indemnify the Insured for all sums which
the Insured shall be obligated to pay by reason of the
liability (a) imposed upon the Insured by law ...for damages
on account of (i) Personal injuries ... caused by or arising
out of each occurrence happening anywhere in the world during
the policy period.” The policy provides coverage for up
to $5 million for “Ultimate Net Loss, ” defined
as the “total sum which the Insured, or his Underlying
Insurers as scheduled, or both, become obligated to pay by
reason of personal injuries ... and shall also include ...
expenses for doctors, lawyers, nurses and investigators and
other persons, and for litigation, settlement, adjustment and
investigation of claims and suits which are paid as
consequence of any occurrence cover hereunder...”
Additionally, the policy states that National Union
“shall not be liable for expenses as aforesaid when
such expenses are included in other valid and collectible
clause entitled “PRIOR INSURANCE AND NON CUMULATION OF
LIABILITY” (“The Clause”) states:
It is agreed that if any loss covered hereunder is also
covered in whole or in part under any other excess policy
issued to the Insured prior to the inception date hereof the
limit of liability hereon ... shall be reduced by any amounts
due to the Insured on account of such loss under such prior
to National Union, two excess insurance policies were issued
by Federal Insurance Company and the Insurance Company of the
State of Pennsylvania (“ICSOP”) prior to the
inception date of the National Union policy.
motion for summary judgment will be granted where there is no
genuine issue as to any material fact and it is clear that
the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
"Only when reasonable minds could not differ as to the
import of the evidence is summary judgment proper."
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.).
burden is on the moving party to demonstrate the absence of
any material factual issue genuinely in dispute. American
International Group, Inc. v. London American International
Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining
whether a genuine factual issue exists, the court must
resolve all ambiguities and draw all reasonable ...