R.T. VANDERBILT COMPANY, INC.
HARTFORD ACCIDENT AND INDEMNITY COMPANY et al.
March 28, 2019
from Superior Court, Judicial District of Waterbury, Shaban,
[Copyrighted Material Omitted]
Michael J. Smith, pro hac vice, with whom were Jeffrey R.
Babbin, New Haven, and, on the brief, Michael Menapace,
Hartford, Bryan W. Petrilla, pro hac vice, Laura P. Zaino,
Hartford, Lawrence A. Serlin, pro hac vice, Michael G.
Albano, Peter R. Reynolds, Hartford, 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,
Hartford, Lawrence A. Levy, pro hac vice, Matthew G. Conway,
Hartford, 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, Hartford, Daniel
Hargraves, pro hac vice, David A. Slossberg, Milford, John E.
Rodewald, pro hac vice, and Heather L. McCoy, West Hartford,
for the appellants in SC 20001 (defendant TIG Insurance
Company et al.).
Cerreta, with whom were Kathleen D. Monnes, and, on the
brief, Erick M. Sandler, Hartford, for the appellants in SC
20000 (defendant Travelers Casualty and Surety Company et
M. Mihm and Marilyn B. Fagelson, New Haven, with whom were
Proloy K. Das, Hartford, Rachel Snow Kindseth, New Haven,
and, on the brief, Stephen Hoke, for the appellant in SC
20003 and the appellees in SC 20000 and SC 20001 (substitute
D. Mason, pro hac vice, with whom, on the brief, were John A.
Lee, pro hac vice, Michael F. Lettiero, Laura P. Zaino,
Hartford, Lawrence A. Serlin, pro hac vice, William A.
Meehan, Alexander J. Mueller, pro hac vice, Stephen T.
Roberts, Robert M. Flannery, Heather L. McCoy, West Hartford,
Jeffrey R. Babbin, New Haven, Michael Menapace, Hartford,
Michael J. Smith, pro hac vice, Bryan W. Petrilla, pro hac
vice, Matthew G. Conway, Hartford, Kevin M. Haas, pro hac
vice, Marianne May, pro hac vice, Louis B. Blumenfeld,
Hartford, and Lawrence A. Levy, pro hac vice, for the
appellees in SC 20003 (defendant National Casualty Company et
J. Mueller, pro hac vice, with whom was William A. Meehan,
for the appellees (defendant Certain London Market Insurers
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.
T. McCormack, Wethersfield, filed briefs for the National
Association of Manufacturers as amicus curiae in SC 20000, SC
20001 and SC 20003.
C. J., and Palmer, DAuria, Mullins, Kahn and Ecker, Js.
Conn. 348] These certified appeals, which present us with
several significant questions of insurance law, arise from
coverage disputes between the plaintiff, R.T. Vanderbilt
Company, Inc. (Vanderbilt), and the defendants, who
are numerous insurance companies [333 Conn. 349] (insurer
defendants) that issued primary and secondary
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,
from the judgment of the Appellate [333 Conn. 350] Court
affirming in part and reversing in part numerous
interlocutory decisions made by the trial court in connection
with the first and second phases of a complex trial between
the parties. R.T. Vanderbilt Co. v. Hartford Accident &
Indemnity Co., 171 Conn.App. 61, 75-76, 156 A.3d 539
(2017). On appeal, the insurer defendants claim that the
Appellate Court improperly (1) upheld the trial courts
adoption of a "continuous trigger" theory of
coverage for asbestos related disease claims as a matter of
law and the trial courts related preclusion of expert
testimony on current medical science regarding the actual
timing of bodily injury from such disease, (2) upheld the
trial courts 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 environments. In its appeal, Vanderbilt claims that
the Appellate [333 Conn. 351] Court improperly construed
occupational disease exclusions present in certain policies
as not limited to claims brought by Vanderbilts own
employees. Because we conclude that the Appellate Courts
comprehensive opinion properly resolved these significant
issues, we affirm the judgment of the Appellate Court.
opinion of the Appellate Court aptly sets forth the relevant
background facts and procedural history. "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.
the past several decades, thousands of underlying actions
have been filed against Vanderbilt in various 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 correlated to asbestos exposure, such as
mesothelioma, other asbestos related cancer, and asbestosis
(collectively, 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.
brought the present action against several insurance
companies that issued it primary insurance [333 Conn. 352]
policies between 1948 and 2008 ...." Id., at
76-77, 156 A.3d 539; see footnote 2 of this opinion (listing
defendants). In particular, Vanderbilt alleged that its
primary insurers— Hartford Accident and Indemnity
Company, and Continental Casualty Company, Columbia Casualty
Company and Continental Insurance Company (collectively,
Continental) "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.
subsequently filed a [third-party] complaint against various
insurance companies that had provided secondary
coverage— umbrella or excess — 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. at 77,
156 A.3d 539. "Vanderbilt thereafter brought direct
claims against these [third-party] secondary insurers."
Id., at 78, 156 A.3d 539.
to the start of trial, the trial court issued a series of
scheduling orders, pursuant to which it separated the trial
into four phases. In the first two phases, which were tried
to the court and have been completed, the court addressed
Vanderbilts 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 latency asbestos related
claims alleging [333 Conn. 353] 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
determination of (1) the periods during which the defendants
insurance policies were in effect and (2) whether Vanderbilt
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 ...