Opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

FIRE-DEX, LLC, ) CASE NO.: 1:23-cv-01612

)

Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN

)

v. )

)

ADMIRAL INSURANCE COMPANY, ) MEMORANDUM OPINION AND

) ORDER

Defendant, )

)

and )

)

ST. PAUL SURPLUS LINES )

INSURANCE COMPANY, et al., )

)

Intervenors-Defendants. )

)

Over the past several years, concerns about the potential health risks that come with

exposure to per- and polyfluoroalkyl substances (“PFAS”), known colloquially as forever

chemicals, have been on the rise. Numerous plaintiffs have filed suit against companies that

manufacture PFAS or PFAS-containing products, alleging that PFAS causes cancer and other

serious illnesses. This case concerns insurance-coverage disputes over three such lawsuits, filed

against Plaintiff Fire-Dex, LLC, that are now consolidated in multidistrict litigation before the

District of South Carolina (the “Underlying Lawsuits”).1 See In re Aqueous Film-Forming

Foams Prods. Liab. Litig., No. 2:18-mn-02873 (D.S.C.).

1 The Underlying Lawsuits are Marchetti v. 3M Co., No. 2:22-cv-00710 (D.S.C.); Gibson v. 3M

Co., No. 2:22-cv-01303 (D.S.C.); and Nordby v. 3M Co., No. 2:22-cv-01589 (D.S.C.).

There are two sets of insurance policies at issue here. The first is a set of primary

policies covering commercial general liability. Fire-Dex purchased these primary policies from

Defendant Admiral Insurance Company. The second is a set of umbrella policies that provides

coverage once the primary policies’ limits are exhausted. Fire-Dex purchased these umbrella

policies from Intervenors St. Paul Surplus Lines Insurance Company and Travelers Excess and

Surplus Lines Company (collectively, “Travelers”). Fire-Dex contends that these policies cover

both the defense of the Underlying Lawsuits and indemnity for any potential liability. Admiral

and Travelers disagree.

After the parties spent the past several years litigating the proper forum for their disputes,

the merits of their disagreements are now teed up for resolution. Three summary judgment

motions are fully briefed and before the Court: one from Fire-Dex (Docs. 51, 58, 61, 66-1),2 a

second from Admiral (Docs. 53, 59, 63), and a third from Travelers (Docs. 54, 60, 67). Also

before the Court are twin motions from Fire-Dex to certify a question to the Ohio Supreme Court

(Docs. 52, 57, 62, 65) and to exclude Travelers’ expert (Docs. 44-46). After carefully

considering the relevant policy language, the Court concludes that Admiral does not owe Fire-

Dex a duty to defend or indemnify. Accordingly, Fire-Dex’s motion for summary judgment is

DENIED while Admiral’s is GRANTED. The dispute over Travelers’ umbrella policies arises

from Travelers’ counterclaim against Fire-Dex, and the Court finds that Travelers lacks standing

to assert its counterclaim. For this reason, the Court cannot reach the merits of that dispute.

Travelers’ motion for summary judgment is DENIED and its counterclaim is DISMISSED.

Lastly, Fire-Dex’s motions to certify and exclude are DENIED.

2 For ease and consistency, record citations are to the electronically stamped CM/ECF document

and PageID# rather than any internal pagination.

I. BACKGROUND

Fire-Dex is an Ohio-based company that manufactures personal protective equipment for

firefighters—primarily turnout gear but also boots, hoods, gloves, and helmets. (Doc. 1-1 at

¶¶ 1, 7.) In recent years, many firefighters have sued Fire-Dex for injuries purportedly stemming

from exposure to PFAS in Fire-Dex products. (Id. at ¶¶ 8, 14; Doc. 53-4 at ¶ 35; Doc. 53-5 at

¶ 41; Doc. 53-6 at ¶ 25.) Pertinent here are three such lawsuits, the Underlying Lawsuits, in

which firefighters allege that they were “repeatedly exposed to PFAS” when they wore Fire-Dex

turnouts “in the usual and normal course of performing their firefighting duties and training.”

(Doc. 53-4 at ¶ 8; Doc. 53-5 at ¶ 8; Doc. 53-6 at ¶ 8.) This exposure, they say, caused them to

develop cancer. (Doc. 53-4 at ¶¶ 14-20; Doc. 53-5 at ¶¶ 14-28; Doc. 53-6 at ¶ 13.)

When Fire-Dex learned of the Underlying Lawsuits, it turned to its insurer, Admiral, for

defense and indemnity. (Doc. 1-1 at ¶ 16; Doc. 6 (Answer) at ¶ 16.) Fire-Dex sought coverage

under two commercial general liability policies that it had purchased to cover the period from

January 1, 2014, to January 1, 2016 (the “Primary Policies”). (Doc. 6 (Answer) at ¶ 11.) The

two Primary Policies are substantially similar.3 They impose a duty on Admiral to defend Fire-

Dex from certain lawsuits and to indemnify Fire-Dex from liability arising out of those lawsuits:

[Admiral] will pay those sums that the insured becomes legally obligated to pay as

damages because of “bodily injury” or “property damage” to which this insurance

applies. [Admiral] will have the right and duty to defend the insured against any

“suit” seeking those damages.

(Doc. 53-2 at 2262.) Since the Policies define “bodily injury” to include “physical sickness” and

“physical disease” (id. at 2291), like the firefighters’ cancers, Fire-Dex believed that the Policies

would cover the Underlying Lawsuits.

3 Any differences between the two Policies are immaterial to the disputes analyzed in this Order.

As such, the Court cites only to the Primary Policy covering the year beginning January 1, 2014.

(Doc. 53-2.)

Admiral had a different perspective. It focused on the Policies’ occupational disease

exclusion, which reads:

It is agreed there is no coverage afforded under this policy for any “bodily injury”

to any individual resulting from any occupational or environmental disease arising

out of any insured’s operations, completed operations or products.

(Id. at 2307 (emphasis in original).) In Admiral’s view, the firefighters in the Underlying

Lawsuits alleged occupational disease because they alleged that their injuries were caused by

PFAS exposure while performing their job duties. (Doc. 63-4 at 2896-97.) Admiral denied

coverage based on this exclusion. (See Doc. 6 (Answer) at ¶ 17.)

To confirm its position, Admiral filed a declaratory judgment action against Fire-Dex in

the Northern District of Ohio, asking the court to declare that it had properly denied coverage.

See Admiral Ins. Co. v. Fire-Dex, LLC (“Admiral I”), No. 1:22-cv-1087, 2022 WL 16552973,

2022 U.S. Dist. LEXIS 198034 (N.D. Ohio Oct. 31, 2022) (Barker, J.). Exercising discretion

under the Declaratory Judgment Act, see AmSouth Bank v. Dale, 386 F.3d 763, 784 (6th Cir.

2004), the court declined jurisdiction because Admiral’s claim raised “novel questions of Ohio

insurance law” that were “best reserved for the Ohio state courts to answer in the first instance.”

Admiral I, 2022 WL 16552973, at *10, 2022 U.S. Dist. LEXIS 198034, at *29. The Sixth

Circuit affirmed, agreeing that the case “turn[ed] on a novel issue of Ohio insurance law” which

the “state courts are best suited to answer.” Admiral Ins. Co. v. Fire-Dex, LLC (“Admiral II”),

No. 22-3992, 2023 WL 3963623, at *3, 2023 U.S. App. LEXIS 14822, at *7-8 (6th Cir. June 13,

2023).

Admiral and Fire-Dex then took their dispute to state court. Only this time, Fire-Dex was

the one who sued Admiral, asking for a declaration that Admiral owed coverage. (Doc. 1-1 at ¶¶

32-48.) Fire-Dex also paired its request for declaratory judgment with damages claims for

breach of contract and bad faith. (Id. at ¶¶ 49-63.) Admiral quickly removed to federal court,

where it filed an answer and counterclaimed for the mirror-image declaration—that it did not

owe a defense or indemnity for the Underlying Lawsuits.4 (Docs. 1, 6.) Fire-Dex responded by

moving to remand. (Doc. 8.)

Guided by the Sixth Circuit’s admonition in Admiral II that it is best for Ohio courts to

decide novel issues of Ohio law, this Court remanded the declaratory judgment claim to state

court and stayed the damages claims. (Doc. 14.) Admiral appealed, and the Sixth Circuit

reversed. Fire-Dex, LLC v. Admiral Ins. Co., 139 F.4th 519 (6th Cir. 2025). As the Circuit

explained, the fact that Fire-Dex had asserted damages claims distinguished this case from the

earlier declaratory judgment action because the presence of those claims “counsel[s] heavily in

favor of not abstaining.” Id. at 529.

After the case returned to this Court, Travelers entered the fray. Although Fire-Dex had

not yet asked Travelers to provide any coverage (Doc. 39 at ¶ 4), Travelers filed a motion to

intervene for the purpose of asserting its own declaratory judgment counterclaim against Fire-

Dex. (Doc. 34.) Through its counterclaim, Travelers hoped to secure a declaration that it did not

owe Fire-Dex a duty to defend or indemnify under two umbrella policies it issued to Fire-Dex

(the “Umbrella Policies”). (Doc. 34-1 (Counterclaim) at ¶ 6.) Because no party opposed

intervention, the Court granted the motion. (Doc. 38.)

Fire-Dex, Admiral, and Travelers have now each filed motions for summary judgment

which together address all claims and counterclaims in this case. (Docs. 51, 53, 54.) Fire-Dex

has also filed motions to certify a question to the Ohio Supreme Court (Doc. 52) and to exclude

Travelers’ expert (Doc. 44).

4 Admiral technically filed four counterclaims, each disclaiming coverage based on a different

exclusion. (Doc. 6 (Counterclaims) at ¶¶ 23-56.) Since they all seek the same declaration,

though, the Court treats them as one.

II. MOTION TO CERTIFY

The Court begins with Fire-Dex’s motion to certify. Fire-Dex asks the Court to certify

the following question: Whether the Primary Polices’ occupational disease exclusion “only

applies to claims brought against Fire-Dex by its own employees, or [] also applies to claims

brought by non-employees.” (Doc. 52 at 2213.)

Under its Rules of Practice, the Ohio Supreme Court may choose to accept certified

questions of Ohio law from the federal courts. Ohio S. Ct. Prac. R. 9.01(A). To qualify for

certification, a question must satisfy two criteria: (1) it must be “a question of Ohio law that may

be determinative of the proceeding,” and (2) there must be “no controlling precedent in the

decisions of [the Ohio] Supreme Court.” Id. The decision to certify is within the federal court’s

discretion. Pennington v. State Farm Mut. Auto. Ins. Co, 553 F.3d 447, 449-50 (6th Cir. 2009).

Even when all criteria for certification are satisfied, certification is not mandatory. See Lehman

Bros. v. Schein, 416 U.S. 386, 390-91, 94 S. Ct. 1741, 40 L. Ed. 2d 215 (1974) (“We do not

suggest that where there is doubt as to local law and where the certification procedure is

available, resort to it is obligatory.”).

For questions that meet the criteria for certification, the propriety of certification turns on

the balance between two competing federalism concerns. On one side of the ledger, certification

of novel state law questions promotes “cooperative judicial federalism” by respecting a state

supreme court’s “status as the final arbiter on matters of state law.” Planned Parenthood of

Cincinnati Region v. Strickland, 531 F.3d 406, 410 (6th Cir. 2008) (quoting Arizonans for

Official English v. Arizona, 520 U.S. 43, 77, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997)). On the

other side is the principle that federal courts should not unnecessarily outsource their work to

state courts. Federal courts should “not trouble [their] sister state courts every time an arguably

unsettled question of state law comes across [their] desks.” State Auto Prop. & Cas. Ins. Co. v.

Hargis, 785 F.3d 189, 194 (6th Cir. 2015) (quoting Pennington, 553 F.3d at 450). If there is “a

reasonably clear and principled course,” federal courts should “seek to follow it [them]selves.”

Id. (quoting Pennington, 553 F.3d at 450). Or put differently, “[t]he state court need not have

addressed the exact question” before a federal court can decide the issue itself, “so long as well-

established principles exist to govern a decision.” Id.

Fire-Dex’s proposed question satisfies the criteria for certification. First, “issue[s] of []

insurance contract interpretation are questions of state law,” Bituminous Cas. Corp. v. J & L

Lumber Co., 373 F.3d 807, 815 (6th Cir. 2004), and interpretation of the occupational disease

exclusion has the potential to determine this case. If the exclusion applies to claims raised by

non-employees of Fire-Dex, then Admiral prevails because the exclusion applies to the

Underlying Lawsuits brought by non-employee firefighters. Second, the Ohio Supreme Court

has never interpreted an occupational disease exclusion. The parties do not identify any Ohio

Supreme Court decisions construing “occupational disease” in the insurance context. This Court,

as well as the Admiral I and Admiral II courts, has also searched for and failed to find such cases.

See Admiral II, 2023 WL 3963623, at *3, 2023 U.S. App. LEXIS 14822, at *7; Admiral I, 2022

WL 16552973, at *7-8, 2022 U.S. Dist. LEXIS 198034, at *19-20, 22. So as three separate

courts have confirmed, occupational disease exclusions present an issue of first impression under

Ohio law.

The Court nonetheless finds that certification is not appropriate at this juncture. Even

though “the legal question is one of first impression in [Ohio], [] a reasonably clear and

principled course of action exists.” Hargis, 785 F.3d at 194. There is an entire casebook’s worth

of law defining “occupational disease” that the Court can draw upon for guidance, including both

a statute and several Ohio Supreme Court decisions. E.g., Ohio Rev. Code § 4123.01(F); State

ex rel. Ohio Bell Tel. Co. v. Krise, 42 Ohio St. 2d 247, 327 N.E.2d 756, 760-61 (1975);

Rambaldo v. Accurate Die Casting, 65 Ohio St. 3d 281, 603 N.E.2d 975, 979 & n.6 (1992). To

be sure, this law arises from the workers’ compensation context, and as the Admiral I and

Admiral II courts observed, there is no law interpreting “occupational disease” in an insurance

policy. But federal courts may draw upon “analogous” state decisions when deciding issues of

first impression in state law. Hargis, 785 F.3d at 195.

What is more, the result of this case does not depend solely on the definition of

“occupational disease” in a vacuum. The Primary Policies contain other language bearing on the

question of whose claims the occupational disease exclusion applies to. Namely, the Primary

Policies expressly state that the occupational disease exclusion applies to claims brought by “any

individual.” (Doc. 53-2 at 2307.) Considering this language, the Court need not make any

sweeping pronouncement about occupational disease exclusions under Ohio law; it is enough to

issue a party-specific ruling based on the particular language at issue in the Primary Policies.

This “any individual” language did not come up before the Admiral I and Admiral II courts, so it

is no surprise that those courts concluded this dispute raised such novel and far-reaching

questions of state law that comity counseled in favor of allowing state courts to address those

questions in the first instance. Admiral II, 2023 WL 3963623, at *3, 2023 U.S. App. LEXIS

14822, at *7-10; Admiral I, 2022 WL 16552973, at *7-8, 2022 U.S. Dist. LEXIS 198034, at *19-

23; see also Cardinal Health, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 29 F.4th 792, 799

(6th Cir. 2022) (discussing the need to defer to state courts on novel questions of state law as a

matter of comity). But now that this language has been highlighted, the potential impact of the

parties’ dispute has narrowed, and any comity concerns about federal courts deciding this dispute

of state law are lesser.

Finally, Admiral and Fire-Dex’s dispute has lingered far too long without resolution.

Including the initial declaratory judgment action filed by Admiral in 2022, it has been four years

since litigation over Fire-Dex’s insurance coverage began. It is well past time for the parties to

receive an answer to their controversy. While certification does not become inappropriate just

because a case is old, this case’s age is an additional reason for the Court to err in favor of

deciding the dispute itself rather than certifying to the Ohio Supreme Court and introducing

additional delay. Accordingly, the Court DENIES the motion to certify.

III. MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

To prevail on summary judgment, a movant must satisfy its burden to “show[] that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021). A

fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). And a dispute

is genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. In determining whether a genuine dispute of material fact exists, courts

must “view all evidence in the light most favorable to the nonmoving party.” Hrdlicka v. Gen.

Motors, LLC, 63 F.4th 555, 566 (6th Cir. 2023) (citation omitted). This standard remains the

same even when the parties file cross-motions for summary judgment—the Court must “evaluate

each motion on its own merits.” Safety Specialty Ins. Co. v. Genesee Cnty. Bd. of Comm’rs, 53

F.4th 1014, 1020 (6th Cir. 2022).

B. Primary Policies

The Court begins with Fire-Dex and Admiral’s insurance-coverage dispute over the

Primary Policies, proceeding in two parts. First, the Court addresses Fire-Dex’s declaratory

judgment claim and Admiral’s mirror-image counterclaim. Because the occupational disease

exclusion applies to the Underlying Lawsuits, the Court concludes that Admiral is not

contractually obligated to provide coverage. Second, the Court turns to Fire-Dex’s damages

claims for breach of contract and bad faith. In light of its above conclusion, the Court finds that

the claims for breach of contract and bad faith fail as well.

1. Declaratory Judgment

The Primary Policies’ occupational disease exclusion sits at the crux of the parties’

coverage dispute. Fire-Dex contends that the exclusion is limited to claims brought by its own

employees, so it does not apply to the Underlying Lawsuits, which are brought by non-employee

firefighters. Admiral takes the opposite position. It argues that the exclusion also applies to non-

employees. Thus, claims Admiral, the exclusion applies to the Underlying Lawsuits and

precludes coverage. Admiral has the better argument.

Under Ohio law, insurance policies “are construed by the same rules used to construe

contracts.” World Harvest Church v. Grange Mut. Cas. Co., 148 Ohio St. 3d 11, 68 N.E.3d 738,

744 (2016). Courts thus seek “to give effect to the intent of the parties to the [policy].”

Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 797 N.E.2d 1256, 1261 (2003). That said,

courts do not engage in a free-flowing inquiry into the parties’ subjective intentions; they instead

“examine the insurance contract as a whole and presume that the intent of the parties is reflected

in the language used in the policy.” Id. If the policy is unambiguous, courts are confined to “the

writing itself” and may not consider extrinsic evidence. Id. In those circumstances, “the plain

and ordinary meaning of the language used in the policy [controls] unless another meaning is

clearly apparent from the contents of the policy.” Id.

Ohio does, however, favor insureds. When a policy provision is ambiguous, it “must be

construed strictly against the insurer and liberally in favor of the insured.” Westfield Ins. Co. v.

Hunter, 128 Ohio St. 3d 540, 948 N.E.2d 931, 935 (2011). This principle is especially powerful

“when considering provisions that purport to limit or qualify coverage,” like exclusions. Id. If

an exclusion is at issue, courts will interpret that exclusion “as applying only to that which is

clearly intended to be excluded.” Lager v. Miller-Gonzalez, 120 Ohio St. 3d 47, 896 N.E.2d

666, 669 (2008) (quoting Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St. 3d 657, 597

N.E.2d 1096, 1102 (1992)). An insurer who invokes an exclusion bears the burden of satisfying

this exacting standard. Motorists Mut. Ins. Co. v. Ironics, Inc., 168 Ohio St. 3d 467, 200 N.E.3d

149, 155 (2022). It may do so by showing that its construction of the exclusion “is the only one

that can fairly be placed on the language.” Andersen v. Highland House Co., 93 Ohio St. 3d 547,

757 N.E.2d 329, 332 (2001) (citation omitted); see also Grange Indem. Ins. Co. v. Hinds, 228

N.E.3d 714, 719 (Ohio Ct. App. 2023) (similar).

Applying these rules of construction, the Court concludes that the occupational disease

exclusion applies to the Underlying Lawsuits. Recall that the exclusion precludes coverage for

lawsuits alleging “‘bodily injury’ to any individual resulting from any occupational or

environmental disease arising out of any insured’s . . . products.” (Doc. 53-2 at 2307 (emphasis

omitted).) There is no dispute that the firefighters in the Underlying Lawsuits suffered a “bodily

injury” or that the injury allegedly arose out of Fire-Dex products. Applicability of the

occupational disease exclusion thus turns on whether the firefighters are alleging “occupational

. . . disease.”

The term “occupational disease” is not defined in the Primary Policies, so its plain

meaning controls. Galatis, 797 N.E.2d at 1261. There is no Ohio Supreme Court decision

construing the plain meaning of “occupational disease” in the insurance context, meaning this

Court “must predict how the [Ohio Supreme Court] would rule by looking to all the available

data.” Hargis, 785 F.3d at 195 (quoting Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249

F.3d 450, 454 (6th Cir. 2001)). In doing so, the Court looks to the same sources that Ohio courts

look to when construing an undefined term in an insurance policy: case law, Auto-Owners Ins.

Co. v. Merillat, 167 Ohio App. 3d 148, 854 N.E.2d 513, 517 (2006) (citing Shear v. W. Am. Ins.

Co., 11 Ohio St. 3d 162, 464 N.E.2d 545, 548 (1984)); Ohio statutes, Garlick v. McFarland, 159

Ohio St. 539, 113 N.E.2d 92, 92 (1953) (syllabus);5 and dictionary definitions, Textileather

Corp. v. GenCorp Inc., 697 F.3d 378, 382 (6th Cir. 2012). All three of those sources point in the

same direction.6

The Ohio Supreme Court’s decisions in the workers’ compensation context are

“analogous cases” that inform the definition of “occupational disease.” Hargis, 785 F.3d at 195.

In that context, the Ohio Supreme Court has consistently defined “occupational disease” as

having three criteria: “(1) The disease is contracted in the course of employment; (2) the disease

is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation

or the conditions of the employment result in a hazard which distinguishes the employment in

character from employment generally; and (3) the employment creates a risk of contracting the

5 “The Syllabus of an Ohio Supreme Court opinion is binding law.” Wise v. Zwicker & Assocs.,

P.C., 780 F.3d 710, 714 n.2 (6th Cir. 2015) (citing Ohio Rep. Op. R. 2.2.).

6 Fire-Dex also directs the Court to expert testimony and the deposition of its CEO. (E.g., Doc.

51 at 2120.) Whatever utility those pieces of evidence might have if extrinsic evidence were

being considered, they are not sources that Ohio courts rely on when construing the plain

meaning of a contractual term. The Court does not consider them.

disease in a greater degree and in a different manner than in the public generally.” Krise, 327

N.E.2d at 760-61; see also, e.g., City of Bedford Heights v. France, 67 Ohio St. 3d 55, 616

N.E.2d 177, 179-80 (1993) (applying the Krise definition); Rambaldo, 603 N.E.2d at 979 & n.6

(similar); State ex rel. Republic Steel Corp. v. Indus. Comm’n, 61 Ohio St. 2d 193, 399 N.E.2d

1268, 1269 (1980) (similar).

That definition has since been codified into Ohio workers’ compensation law, which

defines “occupational disease” as “a disease contracted in the course of employment, which by

its causes and the characteristics of its manifestation or the condition of the employment results

in a hazard which distinguishes the employment in character from employment generally, and

the employment creates a risk of contracting the disease in greater degree and in a different

manner from the public in general.” Ohio Rev. Code § 4123.01(F).

And dictionary definitions—both current and as of the time that the Primary Policies

were issued—are in accord. For example, Black’s Law Dictionary defines “occupational

disease” to mean “[a] disease that is contracted as a result of exposure to debilitating conditions

or substances in the course of employment.” Occupational Disease, Black’s Law Dictionary

(10th ed. 2014). Merriam-Webster refers to “occupational disease” as “an ailment that results

from the characteristic conditions or functions of one’s employment rather than from the

ordinary risks to which the general public is exposed.” Occupational Disease, Merriam-

Webster, https://www.merriam-webster.com/legal/occupational%20disease (last accessed Aug.

27, 2026). And the Oxford English Dictionary reports that “occupational disease” is a “[d]isease

caused by or associated with a particular type of work or conditions of work.” Occupational

Disease, Oxford English Dictionary, https://www.oed.com/dictionary/occupational-disease_n

(last accessed Aug. 27, 2026).

Given the consistent and common threads running through all of these definitions, the

meaning of “occupational disease” in the Primary Policies becomes clear. An illness is an

“occupational disease” if it is contracted during and as a result of someone’s employment, and

the conditions of employment that caused the illness are not ones to which the general public is

exposed. Under this definition, the firefighters in the Underlying Lawsuits are suffering from

occupational disease. They allegedly contracted their cancers during their employment as

firefighters because they were required to wear turnouts containing PFAS. (Doc. 53-4 at ¶¶ 14-

20; Doc. 53-5 at ¶¶ 14-28; Doc. 53-6 at ¶ 13.) And members of the public generally do not wear

firefighter turnouts.

Up to this point, there does not appear to be much disagreement between Fire-Dex and

Admiral. (See Doc. 51 at 2118-19; Doc. 53-1 at 2236-39.) Fire-Dex diverges from Admiral in

arguing that the occupational disease exclusion applies only to claims brought by Fire-Dex’s

own employees. Observing that the phrase “occupational disease” almost exclusively comes up

in the workers’ compensation context, Fire-Dex would limit “occupational diseases” to those

which render someone eligible for workers’ compensation benefits. (Doc. 51 at 2119-20.) With

this additional limit in place, Fire-Dex posits that the occupational disease exclusion can apply

only to claims brought by employees against their employers because only employees can

recover workers’ compensation from their employers. (Id. at 2120.)

There are two problems with Fire-Dex’s position. The first problem is that Fire-Dex

operates from a mistaken premise. Whether or not an illness is an occupational disease does not

depend on whether that illness creates eligibility for workers’ compensation benefits. Eligibility

for workers’ compensation does not appear in any part of the Ohio Supreme Court’s three-part

definition of occupational disease. See Krise, 327 N.E.2d at 760-61. Nor does it appear in

Ohio’s statutory definition. See Ohio Rev. Code § 4123.01(F). Rather, eligibility for workers’

compensation is a consequence of satisfying the definition of occupational disease. Kerr v.

OhioHealth Corp., 194 N.E.3d 435, 441 (Ohio Ct. App. 2022) (citing Ohio Rev. Code

§ 4123.54(A)). It makes no sense to incorporate eligibility into the definition of occupational

disease if establishing occupational disease is the trigger for eligibility in the first place.

Likewise, when dictionary definitions refer to workers’ compensation they refer to it as a

consequence of occupational disease, not a necessary characteristic of the disease. See

Occupational Disease, Black’s Law Dictionary (10th ed. 2014); Occupational Disease,

Merriam-Webster, https://www.merriam-webster.com/legal/occupational%20disease (last

accessed Aug. 27, 2026).7

The second and bigger problem for Fire-Dex is that, even if its premise is correct, its

conclusion does not follow. A person’s eligibility for workers’ compensation does not depend

on whom that person seeks compensation from. Imagine a contractor who is eligible for

workers’ compensation because he developed lung cancer from asbestos exposure on the job. If

that contractor sues a third-party instead of his employer—say, a manufacturer of respirators that

are alleged to be defective—he remains eligible for workers’ compensation. The same is true if

that contractor decides to stand pat and not seek compensation from anyone at all. The

contractor stays eligible whether he sues his employer, his doctor, an equipment manufacturer, or

someone else. Indeed, it would be bizarre to say that an illness is an occupational disease when a

plaintiff sues his employer but ceases to be an occupational disease when he sues someone else.

7 The Merriam-Webster definition might be read as saying that eligibility for workers’

compensation is a characteristic of occupational disease. But even read that way, Merriam-

Webster is just one source arrayed against many others, and it does not change the Court’s

conclusion.

A Connecticut Supreme Court decision supports this result. See Hargis, 785 F.3d at 195

(courts may consult “decisions from other jurisdictions” when predicting how a state supreme

court would rule). In R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 333 Conn. 343,

216 A.3d 629, 637-38 (2019), the Connecticut Supreme Court interpreted similar occupational

disease exclusions. The insured in that case argued, like Fire-Dex argues here, that the

occupational disease exclusions applied only to claims brought by its own employees. Id. at 640.

The Supreme Court rejected that argument, identifying the same problems just discussed above.

The Supreme Court acknowledged “the relationship between occupational disease and workers’

compensation” but observed that no definition “suggest[ed] in any way that the phrase

‘occupational disease’ is a construct devoid of meaning outside the law of workers’

compensation.” Id. at 643. Instead, it explained, mention of workers’ compensation in those

definitions only “highlight[s] the availability of workers’ compensation as a common, legal

remedy for claims arising from the underlying condition.” Id. For that reason, the Connecticut

Supreme Court held that an occupational disease exclusion “bar[s] coverage for occupational

disease claims brought not only by employees of [the insured] but also by individuals who

contracted an occupational disease in the course of their work for other employers.” Id. at 648

(citation omitted).

In any case, the Court need not rely on the definition of “occupational disease” alone to

determine who the occupational disease exclusion covers. The exclusion itself expressly gives

the answer: “any individual” who suffers from “occupational . . . disease arising out of any

insured’s . . . products” falls under the exclusion. (Doc. 53-2 at 2307 (emphasis added).) “Any

individual” plainly includes both employees and non-employees. And to the extent there were

any doubt, a separate section of the Primary Policies excludes from coverage claims brought by

“any employee” under “occupational disease law.”8 (Id. at 2296.) “The difference in language

demands a difference in meaning.” Gallo v. Moen Inc., 813 F.3d 265, 268, 270 (6th Cir. 2016)

(applying the “ordinary principles of contract law” to interpret a collective bargaining agreement

(citation omitted)). If this separate section is limited to employees by the language “any

employee,” the occupational disease exclusion must extend beyond employees because it uses

the broader term “any individual.” 9

In sum, the occupational disease exclusion unambiguously applies to claims brought by

both employees and non-employees of Fire-Dex so long as those claims are based on injuries

contracted during and because of some employment, and the conditions of employment causing

those injuries are not ones to which the general public are exposed. The Underlying Lawsuits

satisfy every aspect of this exclusion. They are brought by plaintiffs who allege injuries

(cancers) contracted because of and during their employment (as firefighters), due to conditions

that the general public are not exposed to (wearing Fire-Dex turnouts). (See Doc. 53-4 at ¶¶ 8,

8 Admiral argues that Fire-Dex’s construction of the occupational disease exclusion would make

this separate section superfluous, because both the exclusion and this separate section would

cover employees. (Doc. 53-1 at 2247-49.) However, Admiral’s construction would create the

same problem. Under its construction, the exclusion and separate section would both still cover

employees; the exclusion would just cover non-employees as well. Arguments about superfluity

therefore do not help either party.

9 Admiral also points to the use of “any Employee” in the occupational disease exclusion

contained in Travelers’ Umbrella Policies. (Doc. 53-1 at 2246.) The Court is skeptical that it

can consider language in other insurance policies issued by other insurers when interpreting the

Primary Policies. But the Court need not and does not decide whether it is empowered to do so

because Admiral prevails even when disregarding the Umbrella Policies.

14-20, 35; Doc. 53-5 at ¶¶ 8, 14-28, 41; Doc. 53-6 at ¶¶ 8, 13, 25.) Accordingly, Admiral does

not owe Fire-Dex any duty to defend or indemnify with respect to those Lawsuits.10

2. Damages Claims

The Court’s ruling on declaratory judgment resolves Fire-Dex’s damages claims for

breach of contract and bad faith. Fire-Dex’s sole theory of breach is that Admiral failed to

defend and indemnify as required by the Primary Policies. (Doc. 1-1 at ¶ 52.) Because the

Primary Policies do not require Admiral to defend or indemnify, the breach of contract claim

fails. Similarly, Fire-Dex’s bad faith claim requires it to show that Admiral’s “refusal to

[provide coverage] is not predicated upon circumstances that furnish reasonable justification

therefor.” Zoppo v. Homestead Ins. Co., 71 Ohio St. 3d 552, 644 N.E.2d 397, 397 (1994)

(syllabus). As Admiral’s interpretation of the Primary Policies is correct, its decision not to

defend or indemnify is reasonable. Admiral is entitled to summary judgment in its favor on

these claims.

Having concluded the occupational disease exclusion precludes coverage, the Court does

not address any of the other exclusions that Admiral raises. Each of Fire-Dex’s claims fail, and

Admiral’s counterclaim succeeds. As such, the Court DENIES Fire-Dex’s motion for summary

judgment and GRANTS Admiral’s cross-motion.

C. Umbrella Policies

With that, the Court turns to the dispute between Fire-Dex and Travelers over the

Umbrella Policies. Fire-Dex largely does not engage with the merits of Travelers’ counterclaim,

which seeks a declaration that the Umbrella Policies do not provide coverage. Instead, Fire-Dex

10 Fire-Dex claims that declaratory judgment related to indemnity on punitive damages is not

ripe. (Doc. 51 at 2131.) The Court does not address the arguments related specifically to

punitive damages because it concludes that Admiral does not owe any coverage at all.

chooses to attack the counterclaim on jurisdictional grounds. Its jurisdictional challenge is

somewhat difficult to follow—at different points Fire-Dex raises mootness, ripeness, and the

Court’s discretion to decline jurisdiction over declaratory judgment actions (Doc. 51 at 2131;

Doc. 60 at 2814-15)—but ultimately the Court agrees with Fire-Dex that “there is no live

controversy between Fire-Dex and Travelers related to coverage under the umbrella policies.”

(Doc. 60 at 2814.) The absence of a live controversy means that Travelers lacks standing to

assert its counterclaim.11

“Standing is a prerequisite to bringing claims in federal court.” Tapply v. Whirlpool

Corp., 148 F.4th 407, 414 (6th Cir. 2025). There are three elements to standing, but the relevant

one here is injury in fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.

Ed. 2d 351 (1992). To establish injury in fact, a party must demonstrate “an invasion of a legally

protected interest which is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). In the context

of declaratory judgment actions, the actual-or-imminent requirement demands the existence of a

“controversy . . . of sufficient immediacy and reality.” MedImmune, Inc. v. Genentech, Inc., 549

U.S. 118, 127, 127 S. Ct. 764, 166 L. Ed. 2d 604 (2007) (quoting Md. Cas. Co. v. Pac. Coal &

Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941)); see also Sch. Dist. of City of

Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 278 (6th Cir. 2009) (Sutton, J.,

concurring) (“In a declaratory judgment action, ‘injury in fact’ turns on whether the threatened

harm is real and imminent, as opposed to speculative and distant.”). Courts may not adjudicate

“disputes that are uncertain to occur or contingent in nature” because such hypothetical disputes

11 Even if Fire-Dex’s arguments are not construed to raise standing issues, the Court may still

address the issue of standing sua sponte. Bench Billboard Co. v. City of Cincinnati, 675 F.3d

974, 983 (6th Cir. 2012).

do not injure any party. Goleta Nat’l Bank v. O’Donnell, 239 F. Supp. 2d 745, 751 (S.D. Ohio

2002) (quoting 15 Moore’s Federal Practice § 101.80[1] (Matthew Bender 3d ed.)).

Travelers’ status as an intervenor does not alter these requirements. “For all relief

sought, there must be a litigant with standing.” Town of Chester v. Laroe Ests., Inc., 581 U.S.

433, 439, 137 S. Ct. 1645, 198 L. Ed. 2d 64 (2017). It follows that an intervenor “must have

Article III standing in order to pursue relief that is different from that which is sought by a party

with standing.” Id. at 440. This is true even if intervention is not opposed. See Rosen v. Tenn.

Comm’r of Fin. & Admin., 288 F.3d 918, 931 (6th Cir. 2002) (holding that standing cannot be

created through the parties’ mutual agreement). Since Travelers is the only party seeking relief

with respect to the Umbrella Policies, it must have standing.

Standing is assessed at the time of filing, so the Court focuses its analysis on the state of

play when Travelers moved to intervene. Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 457

(6th Cir. 2017). At that time, Fire-Dex had given Travelers notice of the Underlying Lawsuits

but had not asked Travelers to provide a defense or indemnity. (Doc. 34-1 (Counterclaim) at

¶¶ 4, 19; Doc. 39 at ¶¶ 4, 19.) The only suggestion that there might be some dispute over

coverage was Travelers’ allegation that if the Primary Policies provided coverage for the

Underlying Lawsuits, and if the limits on those Policies were exhausted, then Fire-Dex was

“anticipated” to seek coverage from Travelers. (Doc. 34-1 (Counterclaim) at ¶ 20.) As this

chain of events illustrates, the existence of any coverage dispute between Travelers and Fire-Dex

was contingent on a series of uncertain future events.

What is more, there is good reason to believe that Fire-Dex will not likely demand

coverage from Travelers in the immediate future. Travelers did not move to intervene until

March 2026 (Doc. 34), nearly four years after litigation between Fire-Dex and Admiral first

ensued and well after Fire-Dex first learned of the Underlying Lawsuits. See Admiral Ins. Co. v.

Fire Dex, LLC, No. 1:22-cv-01087 (N.D. Ohio) (filed June 21, 2022). Yet there was no hint

during those four years that Fire-Dex intended to expand its insurance dispute to include

Travelers. Without any indication that Fire-Dex will be seeking coverage from Travelers in the

foreseeable future, any controversy between the two is “wholly conjectural” and “neither real nor

immediate.” Golden v. Zwickler, 394 U.S. 103, 109, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969). In

other words, the dispute that Travelers seeks to have the Court resolve is a “theoretical [one] that

may or may not materialize.” Safety Specialty, 53 F.4th at 1020 (quoting Saginaw County v.

STAT Emergency Med. Servs., Inc., 946 F.3d 951, 954 (6th Cir. 2020)). The Court is

“prohibit[ed] from passing judgment[]” on such theoretical disputes. Id. (internal quotation

marks and citation omitted).

Travelers responds that its counterclaim turns on a purely legal question of contract

interpretation which does not depend on additional factual developments in the future. (Doc. 67

at 2963.) It also appeals to efficiency, arguing that refusal to consider its counterclaim now

would create unnecessary delay and duplicative litigation. (Id. at 2964-65.) That may all be

true. But the requirements of Article III standing are limits on the Court’s power. Soehnlen v.

Fleet Owners Ins. Fund, 844 F.3d 576, 581 (6th Cir. 2016). No matter how efficient or desirable

it might be to have the Court resolve Travelers’ counterclaim right now, if Travelers lacks

standing, the Court does not have the authority to do so.

For these reasons, the Court DENIES Travelers’ motion for summary judgment and

DISMISSES Travelers’ counterclaim without prejudice. Because the Court dismisses Travelers’

counterclaim, it also DENIES as moot the motion to exclude Travelers’ expert.

IV. CONCLUSION

For the reasons stated herein, the Court GRANTS Admiral’s motion for summary

judgment and DENIES Fire-Dex’s cross-motion. The Court DENIES Travelers’ motion for

summary judgment and DISMISSES its counterclaim for lack of standing. The Court DENIES

Fire-Dex’s motions to certify a question to the Ohio Supreme Court and to exclude Travelers’

expert.

IT IS SO ORDERED.

Date: September 3, 2026 of

wh MEEHA Fox —

UNITED STATES DISTRICT JUDGE