In Re Viking Pump, Inc. and Warren Pumps, LLC Insurance Appeals

IN THE SUPREME COURT OF THE STATE OF DELAWARE

§ No. 518, 2014

§ No. 523, 2014

§ No. 525, 2014

IN RE VIKING PUMP, INC. § No. 528, 2014

AND WARREN PUMPS, LLC §

INSURANCE APPEALS § CASES BELOW:

§

§ Superior Court of the

§ State of Delaware

§ Consolidated C. A. No. N10C-06-141

§

§ -and-

§

§ Court of Chancery of the

§ State of Delaware

§ C.A. No. 1465-VCS

Submitted: July 13, 2016

Decided: September 12, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices; WALLS and RYAN,

Judges, constituting the Court en Banc.

Upon appeals from the Superior Court and the Court of Chancery: AFFIRMED in part

and REVERSED in part.

David J. Baldwin, Esquire, Jennifer C. Wasson, Esquire, Michael B. Rush, Esquire,

Potter Anderson & Corroon LLP, Wilmington, Delaware. Of Counsel: Robin L. Cohen,

Esquire (Argued), Keith McKenna, Esquire, McKool Smith, New York, New York, for

Appellant Warren Pumps LLC.

Paul Cottrell, Esquire, Tighe & Cottrell, P.A., Wilmington, Delaware. Of Counsel:

Laura S. McKay, Esquire, Hinkhouse Williams Walsh LLP, Chicago, Illinois; AND

Anthony G. Flynn, Esquire, Timothy Jay Houseal, Esquire, Jennifer M. Kinkus, Esquire,

Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware. Of Counsel: Lynn H.

Murray, Esquire (Argued), Shook, Hardy & Bacon LLP, Attorneys for The Continental

Insurance Company as successor by merger to Fidelity & Casualty Company of New

York.



Sitting by designation pursuant to Del. Const. art. IV § 12.

Lisa A. Schmidt, Esquire, Travis S. Hunter, Esquire, Richards, Layton & Finger, P.A.,

Wilmington, Delaware. Of Counsel: Michael P. Foradas, Esquire (Argued), Lisa G.

Esayian, Esquire, William T. Pruitt, Esquire, Kirkland & Ellis LLP, Chicago, Illinois, for

Appellant Viking Pump, Inc.

Kenneth J. Nachbar, Esquire (Argued), Morris, Nichols, Arsht & Tunnell LLP,

Wilmington, Delaware AND Garrett B. Moritz, Esquire and Nicholas D. Mozal, Esquire,

Ross Aronstam & Moritz LLP, Wilmington, Delaware. Of Counsel: Tancred Schiavoni,

Esquire and Gary Svirsky, Esquire, O‘Melveny & Myers LLP, New York, New York;

AND John D. Balaguer, Esquire, White and Williams LLP, Wilmington, Delaware. Of

Counsel: Brian G. Fox, Esquire and Lawrence A. Nathanson, Esquire, Siegal & Park,

Mount Laurel, New Jersey, Attorneys for Defendants TIG Insurance Company, f/k/a

International Insurance Company, with respect to policies numbered 5220113076 and

5220282357, and Westchester Fire Insurance Company, with respect to policy numbered

5220489339, by operation of novation; ACE Property & Casualty Insurance Company

(f/k/a CIGNA Property & Casualty Insurance Company), as successor-in-interest to

Central National Insurance Company of Omaha, but only as respects policies issued

through Cravens, Dargan & Company, Pacific Coast (improperly named as The Central

National Insurance Company of Omaha); and Century Indemnity Company, as successor

to CCI Insurance Company, as successor to Insurance Company of North America and

Century Indemnity Company as successor to CIGNA Specialty Insurance Company (f/k/a

California Union Insurance Company).

Paul Cottrell, Esquire, Tighe & Cottrell, P.A., Wilmington, Delaware. Of Counsel:

Laura S. McKay, Esquire, Hinkhouse Williams Walsh LLP, Chicago, Illinois; AND

Anthony G. Flynn, Esquire, Timothy Jay Houseal, Esquire, Jennifer M. Kinkus, Esquire,

Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware, Attorneys for Certain

Underwriters at Lloyd’s, London and certain London Market Insurance Companies,

Granite State Insurance Company, Lexington Insurance Company And National Union

Fire Insurance Company of Pittsburgh, PA.

Robert J. Katzenstein, Esquire, Smith Katzenstein & Jenkins LLP, Wilmington,

Delaware. Of Counsel: Christopher R. Carroll, Esquire, Heather E. Simpson, Esquire,

Carroll McNulty & Kull LLC, Basking Ridge, New Jersey, Attorneys for TIG Insurance

Company, as successor by merger to International Insurance Company, as successor by

merger to International Surplus Lines Insurance Company (Policy No. XSI 5217 only).

Thaddeus J. Weaver, Esquire, Dilworth Paxson LLP, Wilmington, Delaware. Of

Counsel: Laura S. McKay, Esquire, Douglas M. DeWitt, Esquire, Hinkhouse Williams

Walsh LLP, Chicago, Illinois; AND Anthony G. Flynn, Esquire, Timothy Jay Houseal,

Esquire, Jennifer M. Kinkus, Esquire, Young Conaway Stargatt & Taylor LLP,

Wilmington, Delaware, Attorneys for OneBeacon America Insurance Company as

successor to Commercial Union Insurance Company, XL Insurance America, Inc., as

2

successor to Vanguard Insurance Company, and Republic Insurance Company, n/k/a

Starr Indemnity & Liability Company.

James W. Semple, Esquire, Cooch & Taylor P.A., Wilmington, Delaware. Of Counsel:

Kristin Suga Heres, Esquire, Zelle LLP, Framingham, Massachusetts, Attorneys for

Defendant Westport Insurance Corporation.

Robert M. Greenberg, Esquire, Tybout Redfearn & Pell, Wilmington, Delaware. Of

Counsel: Amy R. Paulus, Esquire, Mark D. Paulson, Esquire and Don R. Sampen,

Esquire, Clausen Miller P.C., Chicago, Illinois, Attorneys for Old Republic Insurance

Company.

Neal J. Levitsky, Esquire, Seth A. Niederman, Esquire, Fox Rothschild LLP,

Wilmington, Delaware. Of Counsel: Kathleen D. Monnes, Esquire, Joseph K. Scully,

Esquire and John W. Cerreta, Esquire, Day Pitney LLP, Hartford, Connecticut, Attorneys

for Defendant, Travelers Casualty and Surety Company f/k/a The Aetna Casualty and

Surety Company.

VALIHURA, Justice:

3

This is a consolidated appeal in an insurance-coverage dispute from separate

judgments by the Court of Chancery and the Superior Court. Viking Pump, Inc.

(―Viking‖) and Warren Pumps, LLC (―Warren‖) seek to recover under insurance policies

issued to a third company, Houdaille Industries, Inc. (―Houdaille‖). In the 1980‘s, Viking

and Warren acquired pump manufacturing businesses from Houdaille. As a result,

Viking and Warren have been confronted with potential liability flowing from personal

injury claims made by plaintiffs alleging damages in connection with asbestos exposure

claims dating back to when the pump manufacturing businesses were owned by

Houdaille (the ―Houdaille-Era Claims‖). Each year from 1972 through 1985, Houdaille

purchased occurrence-based primary and umbrella insurance from Liberty Mutual

Insurance Company (―Liberty‖). Above the Liberty umbrella layer, Houdaille purchased

layers of excess insurance. In total, Houdaille purchased 35 excess policies through 20

different carriers (the ―Excess Policies‖). Houdaille‘s 14-year insurance tower offered

$17.5 million in primary coverage, $42 million in umbrella coverage, and $427.5 million

in excess coverage.

Viking and Warren now seek to fund the liabilities arising from the Houdaille-Era

Claims using the comprehensive insurance program originally purchased by Houdaille.

The insurance companies that issued the Excess Policies (the ―Excess Insurers‖) contend

that Viking and Warren are not entitled to use the Excess Policies to respond to the

Houdaille-Era Claims. The Excess Insurers also dispute the extent of any coverage

available, particularly with respect to defense costs.

4

I. FACTUAL AND PROCEDURAL BACKGROUND

A more detailed history of this litigation can be gleaned from several other

significant opinions.1

A. The Court of Chancery Proceedings

This litigation first arose in 2005, when Viking brought suit in the Court of

Chancery claiming that it was the successor to insurance policies that Liberty had issued

to Houdaille or, in the alternative, seeking partition of the Liberty policy limits. Liberty,

Viking, and Warren settled that dispute.

Viking and Warren then filed new complaints in the Court of Chancery against

more than twenty other insurers that had issued excess policies to Houdaille. The parties

cross-moved for summary judgment on how to allocate the losses where the underlying

asbestos injuries potentially trigger coverage against multiple policy periods.2

With regard to allocation, the Court of Chancery considered the ―pro rata‖ and

―all sums‖ approaches and observed that New York law, which governs interpretation of

the policies, did not impose either approach on all insurance contracts. Rather, New

York precedent required that the court ―apply traditional principles of insurance contract

interpretation to the policies at issue and then apply the approach that results from that

1

See In re Viking Pump, Inc., 52 N.E.3d 1144 (N.Y. 2016) [hereinafter, ―Viking Pump V, 52

N.E.3d at __‖]; Viking Pump, Inc. v. Century Indem. Co., 2014 WL 1305003 (Del. Super. Feb.

28, 2014) [hereinafter, ―Viking Pump IV, 2014 WL 1305003 at __‖]; Viking Pump, Inc. v.

Century Indem. Co., 2013 WL 7098824 (Del. Super. Oct. 31, 2013) [hereinafter, ―Viking Pump

III, 2013 WL 7098824 at __‖]; Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76 (Del. Ch.

2009) [hereinafter, ―Viking Pump II, 2 A.3d at __‖]; Viking Pump, Inc. v. Liberty Mut. Ins. Co.,

2007 WL 1207107 (Del. Ch. Apr. 2, 2007) [hereinafter, ―Viking Pump I, 2007 WL 1207107

at __‖].

2

Viking Pump II, 2 A.3d 76.

5

interpretative exercise.‖3 Thus, under New York law, the method of allocation depended

upon the language of the policy,4 and the Court of Chancery held that the Houdaille

policies ―unambiguously provide for all sums allocation.‖5 In so holding, the Court of

Chancery distinguished a leading New York case on the issue, Consolidated Edison

Company of New York, Inc. v. Allstate Insurance Company,6 on the ground that the

policies in this dispute contain additional provisions—namely, the ―Non-Cumulation‖

and ―Prior Insurance‖ provisions—that the court viewed as inconsistent with pro rata

allocation.7

B. The Superior Court Proceedings

Following the Court of Chancery proceedings, the case was transferred to the

Superior Court on June 11, 2010 to hear and determine several other issues, one of which

was whether the Excess Policies were subject to vertical or horizontal exhaustion. The

Superior Court held a three week trial in October and November 2012. The jury verdict

was predominately in Warren and Viking‘s favor.8 Warren and Viking sought a

judgment incorporating the verdict, and the defendants sought a judgment

notwithstanding the verdict.

3

Id. at 107-08.

4

See Raymond Corp. v. Nat’l Union Fire Ins. Co., 5 N.Y.3d 157, 162 (N.Y. 2005) (―In

determining a dispute over insurance coverage, we first look to the language of the policy.‖

(citations omitted)).

5

Viking Pump II, 2 A.3d at 119.

6

774 N.E.2d 687 (N.Y. 2002).

7

Viking Pump II, 2 A.3d at 118-27.

8

The Superior Court commented that ―[t]he evidence was substantial and, for the most part,

supports the jury‘s verdict. . . . But, reading each policy closely and without extrinsic evidence,

the verdict must be refined to conform to the policies‘ unambiguous meaning.‖ Viking Pump III,

2013 WL 7098824, at *16.

6

In a post-trial Opinion dated October 31, 2013, on Plaintiffs‘ Motion for Final

Judgment and Defendants‘ Renewed Motion for Judgment as a Matter of Law, the

Superior Court held that, as a matter of New York law, Viking and Warren were

obligated to horizontally exhaust all triggered ―primary and umbrella insurance layers

before tapping‖ into any of Houdaille‘s excess coverage.9 In a subsequent Opinion dated

February 28, 2014, the Superior Court clarified that this horizontal-exhaustion

requirement was limited to the primary and umbrella coverage layers and not the excess

coverage.10

On June 9, 2014, the Superior Court entered a Final Judgment Order After Trial.11

Warren moved to clarify and amend the judgment, which motion the Superior Court

denied on August 20, 2014. All parties appealed, and this Court heard oral arguments.

Following oral argument, because resolution of this appeal depended upon significant and

unsettled questions of New York law that had yet to be answered in the first instance by

the New York Court of Appeals, this Court advised the parties that it had decided to

certify two questions to the New York Court of Appeals.

C. Certified Questions to the New York Court of Appeals

This Court certified the following questions to the New York Court of Appeals:

1. Under New York law, is the proper method of allocation to be used

all sums or pro rata when there are non-cumulation and prior

insurance provisions?

9

Id. at *21.

10

Viking Pump IV, 2014 WL 1305003, at *11-12.

11

Final Judgment Order After Trial, Viking Pump, Inc. v. Century Indem. Co., No. N10C-06-141

FSS (Del. Super. June 9, 2014) [hereinafter Final Judgment at JA____], available at JA1862-75.

7

2. Given the Court‘s answer to Question #1, under New York law and

based on the policy language at issue here, when the underlying

primary and umbrella insurance in the same policy period has been

exhausted, does vertical or horizontal exhaustion apply to determine

when a policyholder may access its excess insurance?12

In an Opinion, dated May 3, 2016, the New York Court of Appeals answered the

foregoing certified questions of law.13 The Court held that ―based on the policy language

and the persuasive authority holding that pro rata allocation is inconsistent with non-

cumulation and non-cumulation/prior insurance provisions, we hold that all sums

allocation is appropriate in policies containing such provisions, like the ones at issue

here.‖14 The New York Court of Appeals also concluded that the Excess Policies ―are

triggered by vertical exhaustion of the underlying available coverage within the same

policy period.‖15

D. The Litigation Resumes in Delaware

12

In re Viking Pump, Inc., 2015 WL 3618924, at *3 (Del. June 10, 2015).

13

See Viking Pump V, 52 N.E.3d 1144.

14

Id. at 1156. The New York Court of Appeals determined that ―[t]he policy language at issue

here, by inclusion of the non-cumulation clauses and the two-part non-cumulation and prior

insurance provisions, is substantively distinguishable from the language‖ at issue in

Consolidated Edison. Id. at 1152. In fact, the Court found that ―the excess policies before us

here present the very type of language that [the Court] signaled might compel all sums allocation

in Consolidated Edison.‖ Id. Contemplating ―whether the presence of a non-cumulation clause

or a non-cumulation and prior insurance provision mandates all sums allocation‖ (Id. at 1152),

the New York Court of Appeals concluded ―that it would be inconsistent with the language of

the non-cumulation clauses to use pro rata allocation here.‖ Id. at 1153.

15

Id. at 1157-58 (citing United States Fid. & Guar. Co. v. Am. Re-Ins. Co., 985 N.E.2d 876, 888

(N.Y. 2013)) (citation omitted). The Court reasoned that ―[a]ll of the excess policies at issue

primarily hinge their attachment on the exhaustion of underlying policies that cover the same

policy period as the overlying excess policy, and that are specifically identified by either name,

policy number, or policy limit.‖ Id. at 1156. It also observed that ―vertical exhaustion is

conceptually consistent with an all sums allocation, permitting the [i]nsured to seek coverage

through the layers of insurance available for a specific year.‖ Id.

8

With these critical questions helpfully answered by our sister Court, this Court, by

letter, dated May 11, 2016, ordered the parties to file a stipulation of remaining legal

issues. On June 3, 2016, the parties filed a Joint Stipulation Setting Forth Remaining

Legal Issues on Appeal (the ―Joint Stipulation‖). The Joint Stipulation identified five

principal issues to be resolved by this Court:

(i) Whether the Court of Chancery erred in ruling that Warren and

Viking obtained valid assignments of insurance rights;

(ii) Whether the Superior Court erred in ruling that the aggregate

product liability limits of the 1980-1985 Liberty Mutual Insurance

Company primary insurance policies are exhausted;

(iii) Whether the Superior Court erred in ruling that 33 of the 34 excess

policies that are at issue in this case provide coverage for Warren

and Viking‘s costs of defending the underlying asbestos claims;

(iv) Whether the Superior Court erred in ruling that defense cost

payments under sixteen of the excess policies at issue in this case

count toward the reduction of the policy limits of liability; and

(v) Whether the Superior Court erred in holding that only those policies

in place during a claimant‘s significant exposure to asbestos were

triggered.

We address each of the issues below, combining the discussion of the third and

fourth issues on defense costs to avoid repetition.

II. ANALYSIS

A. The Court of Chancery Correctly Held That There Were Valid Assignments

1. Contentions of the Parties

On appeal, Travelers Casualty and Surety Company (―Travelers‖) advances two

principal arguments to support its claim that the Court of Chancery erred in concluding

9

that Houdaille had validly assigned the insurance coverage rights under the Excess

Policies to Viking and Warren.16 First, Travelers contends that the assignments to

Viking and Warren are invalid because the Excess Insurers did not consent to the

assignments. Second, it asserts that certain transaction agreements failed to effect any

assignment of the Excess Policies to Viking or Warren.

Viking and Warren both argue that the Court of Chancery properly held that they

maintain the rights of an insured under the Excess Policies. That is, both urge that

Houdaille validly assigned the insurance coverage rights under the Excess Policies to

them. We agree and affirm the decision of the Court of Chancery.

2. Standard of Review

We review a trial court‘s grant of summary judgment de novo.17 We also review

questions of contract interpretation de novo.18

3. Discussion

i. Houdaille Validly Assigned Coverage Under the Excess Policies to Warren

Houdaille was an industrial conglomerate that dissolved in 1989. During its

existence, it operated a variety of distinct businesses, either as unincorporated divisions

or through wholly-owned subsidiaries. Both Warren and Viking were initially

independent companies that were acquired by Houdaille. In 1985, Houdaille divested

16

In a footnote, the Excess Insurers join the arguments raised by Travelers with respect to the

validity of the assignment of insurance coverage rights under the Excess Policies. See Excess

Insurers‘ Op. Br. 49 n.16.

17

Moses v. Drake, 109 A.3d 562, 565 (Del. 2015) (citation omitted).

18

Salamone v. Gorman, 106 A.3d 354, 367 (Del. 2014).

10

itself of all of its assets, including both the Warren Pumps and Viking Pump businesses.19

The Viking Pump unit operated as a division within Houdaille until 1985. The Warren

Pumps unit was originally acquired in 1972 through a stock purchase transaction and

later merged into Houdaille. From that point until December 1984, Warren Pumps

operated as an unincorporated division within Houdaille.

In December 1984, Houdaille transferred the Warren Pumps business to a wholly-

owned subsidiary, Warren Pumps-Houdaille, Inc. (―WPH‖). Shortly thereafter, a

management group proposed to purchase the Warren Pumps business. Houdaille and

WPH agreed to sell the Warren Pumps business to Warren.20 Houdaille, WPH, and

Warren entered into the 1985 Asset Sale Agreement by which Warren acquired the

Warren Pumps business (the ―Warren ASA‖). Through the Warren ASA, Warren agreed

to be liable for all of the as-yet-unasserted Houdaille-Era Claims arising out of the

Warren Pumps business. The Warren ASA provided:

2.10 Insurance. . . . [A]s of the commencement of business on the day of

the Closing and thereafter, [Warren] agrees that [Warren] shall be

responsible and liable for all workers‘ compensation claims, general

liability (including, without limitation, product liability) claims and

automotive liability claims on a claims made basis for which [WPH]

directly or through any [p]redecessor is responsible [other than certain

claims that are asserted prior to the Warren ASA‘s closing.]21

19

At relevant times, Warren Pumps and Viking Pump were operated through various legal

entities. For ease of reference, we use the generic labels ―Warren Pumps‖ and ―Viking Pump‖ to

refer the actual businesses.

20

At the time, Warren was a corporation, W.P., Inc. Accordingly, Warren‘s predecessor

corporation was a party to the asset sale transaction.

21

App‘x to Travelers Op. Br. 791-92 [hereinafter ―TA___‖].

11

The Warren ASA, as initially drafted, did not grant Warren rights to Houdaille‘s or

WPH‘s insurance coverage. However, as a condition to closing, Warren was obligated to

obtain $25 million in claims-made insurance.

Warren was unable to obtain the coverage required by the Warren ASA in advance

of closing. On August 30, 1985, Warren, WPH, and Houdaille amended the Warren

ASA (the ―Warren ASA Amendment‖) in order to afford Warren the right to access the

insurance coverage related to the Houdaille-Era Claims. The Warren ASA Amendment

provided that Warren need only obtain $1 million in general liability insurance. The

Amendment further provided:

[Warren], [WPH] and Houdaille acknowledge that [WPH] and Houdaille

have permitted [Warren] to utilize the insurance coverage in excess of the

primary casualty limits identified above, which [WPH] and Houdaille have

in effect, for claims made pertaining to occurrences prior to the date of the

[c]losing, but only to the extent that such insurance coverage is in fact

available.22

After executing the Warren ASA Amendment, Warren, WPH, and Houdaille closed on

the Warren ASA. Warren assumed the Warren Pumps business.

Relying upon extrinsic evidence, Travelers contends that the parties to the

instrument failed to manifest any intent to assign rights to the excess policies.

Specifically, Travelers urges that the unamended portions of the Warren ASA and the

―overall context‖ of the original Warren ASA indicate that Houdaille was not attempting

to effect any assignment of rights to the Excess Policies through the instrument. Further,

22

TA969-70.

12

it asserts that the Warren ASA Amendment was intended only as a transfer of rights to

the Liberty umbrella policies.

Despite Travelers‘ argument to the contrary, the contractual language of the

Warren ASA Amendment is unambiguous. Under New York law, which governs the

Warren ASA,23 ―[e]xtrinsic evidence of the parties‘ intent may be considered only if the

agreement is ambiguous, which is an issue of law for the courts to decide.‖24 ―A contract

is unambiguous if the language it uses has ‗a definite and precise meaning, unattended by

danger of misconception in the purport of the [agreement] itself, and concerning which

there is no reasonable basis for a difference of opinion.‘‖25

As initially drafted, the Warren ASA did not assign Warren coverage under the

Excess Policies. But the Warren ASA Amendment did. The Amendment assigned ―the

insurance coverage in excess of the primary casualty limits.‖26 As the Court of Chancery

observed, ―[t]he Excess Policies were unquestionably coverage ‗in excess of the primary

casualty limits.‘‖27 Moreover, the Warren ASA Amendment contains no language that

indicates that Houdaille and Warren intended that the assignment be limited to the

Liberty umbrella policies. Rather, the ASA Amendment, on its face, is reasonably

susceptible of only one meaning: it assigned coverage under the Excess Policies to

Warren. Because the meaning of ―the insurance coverage in excess of the primary

23

The Warren ASA is governed by the ―laws of the State of New York.‖ TA865.

24

Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 170 (N.Y. 2002) (citing W.W.W. Assocs.,

Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990)) (emphasis added).

25

Selective Ins. Co. of Am. v. Cnty. of Rensselaer, 47 N.E.3d 458, 461 (N.Y. 2016) (quoting

Greenfield, 780 N.E.2d at 170-71) (alteration in Selective Ins.).

26

TA969 (emphasis added).

27

Viking Pump II, 2 A.3d at 94.

13

casualty limits‖ is clear, extrinsic evidence may not be considered under New York law.28

Accordingly, we conclude that the Court of Chancery did not err in concluding that

Houdaille validly assigned coverage under the Excess Policies to Warren.

ii. Houdaille Validly Assigned Coverage Under the Excess Policies to Viking in the

1985 Assignment and Assumption Agreement

Pursuant to an Assignment and Assumption Agreement, dated January 31, 1985,

the Viking Pump business was assigned to Viking (the ―Viking AAA‖).29 Viking was, at

that time, operated as a wholly-owned subsidiary of Houdaille. The Viking AAA

assigned Viking Pump assets—and their related liabilities—to Viking. Specifically,

under the Viking AAA, Viking was assigned ―all of the right, title and interest of

[Houdaille] in and to all of the properties and assets of [Houdaille] (whether tangible or

intangible, real or personal) required for the conduct of the business of [Viking

30

Pump] . . . .‖ Included among such properties and assets of Houdaille were, ―without

limitation, . . . [all] arrangements or understandings of whatsoever nature, whether oral or

written . . . .‖31 Viking also agreed to assume ―[a]ll obligations and liabilities for which

[Viking Pump] . . . or any other [p]redecessor‖ was responsible under such arrangements

and understandings.32

28

See W.W.W. Assocs., 566 N.E.2d at 642 (―A familiar and eminently sensible proposition of law

is that, when parties set down their agreement in a clear, complete document, their writing should

as a rule be enforced according to its terms. Evidence outside the four corners of the document

as to what was really intended but unstated or misstated is generally inadmissible to add to or

vary the writing.‖ (citations omitted)).

29

TA1036-40.

30

TA1036.

31

TA1036.

32

TA1038.

14

Through the Viking AAA, Viking explicitly ―assume[d] and agree[d] to pay or

otherwise perform when due all of the obligations and liabilities, directly or indirectly, of

[Viking Pump] . . . .‖33 Plainly, this provision of the Viking AAA transferred all of the

obligations and liabilities of Viking Pump to Viking. Among the liabilities transferred to

Viking were ―all of the obligations and liabilities, directly or indirectly, of [Viking Pump]

or the business in whole or in part thereof or any [p]redecessor . . . or the business in

whole or in part thereof, of whatsoever nature . . . .‖34 The Viking AAA also provided

that Viking was assigned ―[a]ll liabilities and obligations whether known or unknown of

the type covered by . . . general liability (including, without limitation, product liability)

insurance . . . of [Viking Pump.]‖35

Under Florida law, which governs the Viking AAA,36 ―[w]hen interpreting a

contract, the court must first examine the plain language of the contract for evidence of

the parties‘ intent.‖37 ―The intention of the parties must be determined from an

examination of the whole contract and not from the separate phrases or paragraphs.‖38

―In reviewing the contract in an attempt to determine its true meaning, the court must

review the entire contract without fragmenting any segment or portion.‖39 Further, where

33

TA1037.

34

TA1037.

35

TA1039.

36

The Viking AAA is governed by ―the laws of the State of Florida.‖ TA1040.

37

Hatadis v. Achieva Credit Union, 159 So. 3d 256, 259 (Fla. Dist. Ct. App. 2015) (citation

omitted) (internal quotation marks omitted).

38

Jones v. Warmack, 967 So. 2d 400, 402 (Fla. Dist. Ct. App. 2007) (quoting Lalow v. Codomo,

101 So. 2d 390, 393 (Fla. 1958)) (internal quotation marks omitted).

39

Id. (quoting J.C. Penney Co. v. Koff, 345 So. 2d 732, 735 (Fla. Dist. Ct. App. 1977)) (internal

quotation marks omitted).

15

a contract is unambiguous on its face, the parol evidence rule bars the introduction of

extrinsic evidence.40 A word or phrase is ambiguous, permitting the consideration of

extrinsic evidence, ―only when it is of uncertain meaning, and may be fairly understood

in more ways than one.‖41

The Viking AAA employed broad contractual language to transfer to Viking all of

the properties and assets of Houdaille necessary for the conduct of the business of Viking

Pump. The instrument transfers to Viking all of the tangible and intangible assets

required for the operation of Viking Pump, and it does so without limitation. That is,

under the Viking AAA, Houdaille transferred to Viking ―all of the right, title and

interest‖ of Houdaille in the contracts necessary for Viking to operate the Viking Pump

business.42 As the sweeping language of the Viking AAA makes readily apparent,

Houdaille and its then–wholly owned subsidiary, Viking, entered into the agreement with

the intention that Viking assume all right, title, and interest in the contracts,

arrangements, and understandings necessary to operate Viking Pump.

Travelers argues that the Viking AAA failed to identify the Excess Policies as

among the rights to be transferred. In view of the unambiguous contractual terms

assigning to Viking all of the right, title, and interest of Houdaille in ―all outstanding

contracts‖ necessary for the operation of the Viking Pump business, Travelers‘ argument

is unpersuasive. The Viking AAA manifests Houdaille‘s intent to assign all right, title,

and interest in such contracts and an intention by Viking to receive the same for valuable

40

See Olive v. Tampa Educ. Cable Consortium, 723 So. 2d 883, 884 (Fla. Dist. Ct. App. 1998).

41

Friedman v. Va. Metal Prods. Corp., 56 So. 2d 515, 517 (Fla. 1952) (citation omitted).

42

TA1036.

16

consideration. That the Viking AAA did not specifically identify the Excess Policies

does not undermine the comprehensive contractual language utilized to effect the asset

transfer. Nor does Florida law require the level of specificity that Travelers seeks.43

Accordingly, considering the agreement as a whole, the Viking AAA reflects a

comprehensive transfer of all of the assets, including rights to insurance coverage,

required for the operation of the Viking Pump business.

iii. In Light of the 1988 Stock Purchase Agreement, Viking Maintained Coverage

Under the Excess Policies

After executing the Viking AAA, Houdaille continued to operate Viking Pump as

a wholly-owned subsidiary for the next three years. In January 1988, Houdaille sold all

of the outstanding shares of Viking to IDEX Corporation (―IDEX‖) through a Stock

Purchase Agreement (the ―Viking Stock Agreement‖). In addition to the shares of

Viking, IDEX purchased the stock of five other Houdaille subsidiaries (collectively with

Viking, the ―Sold Subsidiaries‖). In exchange for Viking and the other subsidiaries,

Houdaille received $190 million and 20,000 shares of stock in IDEX.

43

The principal case relied upon by Travelers states that Florida law requires ―[n]o particular

words or form of instrument is necessary to effect an equitable assignment and any language,

however informal, which shows an intention on one side to assign a right . . . and an intention on

the other to receive, if there is a valuable consideration, will operate as an effective equitable

assignment.‖ See SourceTrack, LLC v. Ariba, Inc., 958 So. 2d 523, 526 (Fla. Dist. Ct. App.

2007) (quoting Giles v. Sun Bank, N.A., 450 So. 2d 258, 260 (Fla. Dist. Ct. App. 1984)) (internal

quotation marks omitted) (alteration in original and added); see also 29 WILLISTON ON

CONTRACTS § 74:3 (4th ed. 2016) (―No words of art are required to constitute an assignment; any

words that fairly indicate an intention to make the assignee owner of a claim are sufficient . . . .‖

(citations omitted)); RESTATEMENT (SECOND) OF CONTRACTS ch. 15, topic 2, § 324, cmt. a

(1981) (―Assignment requires an assignable right. Aside from statute, the assignor of such a

right may make an assignment by manifestation of intention without any particular formality.‖

(internal citations omitted)).

17

The Viking Stock Agreement does not make reference to Viking‘s or any other

subsidiary‘s right to insurance coverage. However, Section 5.12 of the instrument

provides:

5.12 Allocation of Certain Liabilities. Upon the Closing, [IDEX] will as a

result of such transaction assume only those liabilities that pertain to the

[Sold Subsidiaries], including, but not limited to, those liabilities set out on

Schedule B hereto, and [IDEX] shall release, indemnify and hold Houdaille

harmless from all such liabilities; provided, however, that Houdaille shall

remain liable to the extent of insurance coverage available (in the event of

claims arising from occurrences prior to the Closing Date, only to the

extent such coverage is available on an occurrence basis) under existing or

previously existing casualty insurance policies (including workmen’s

compensation) and only if [IDEX] reimburses Houdaille for the deductible,

if any, applicable to any such claim for which coverage is claimed.44

As the Court of Chancery observed, Section 5.12 of the Viking Stock Agreement is

complicated by the reality that, in 1985, Houdaille had already transferred the Houdaille-

Era Claims and the associated insurance rights to Viking through the Viking AAA.

Under Delaware law, which governs the Viking Stock Agreement,45 courts

interpreting a contract ―will give priority to the parties‘ intentions as reflected in the four

corners of the agreement, construing the agreement as a whole and giving effect to all its

provisions.‖46 ―Contract terms themselves will be controlling when they establish the

parties‘ common meaning so that a reasonable person in the position of either party

would have no expectations inconsistent with the contract language.‖47 When there is

44

TA1065-66 (underline in original) (italics added).

45

The Viking Stock Agreement is ―governed by the laws of the State of Delaware[.]‖ TA1060.

46

Salamone, 106 A.3d at 368 (Del. 2014) (quoting GMG Capital Invs., LLC v. Athenian Venture

Partners I, L.P., 36 A.3d 776, 779 (Del. 2012)) (internal quotation marks omitted).

47

GMG Capital Invs., 36 A.3d at 780 (quoting Eagle Indus., Inc. v. DeVilbiss Health Care, Inc.,

702 A.2d 1228, 1232 (Del. 1997)) (internal quotation marks omitted).

18

ambiguity flowing from contractual language, ―the interpreting court must look beyond

the language of the contract to ascertain the parties‘ intentions.‖48 When construing

ambiguous contractual provisions, Delaware courts are permitted to consider the parties‘

course of dealing.49

Viking was not a party to the Viking Stock Agreement. Nothing in the Stock

Agreement purports to transfer to Houdaille any rights or liabilities belonging to Viking.

In particular, Section 5.12 allocates liabilities between IDEX and Houdaille—not Viking.

Nor does Section 5.12 contemplate divesting Viking of the rights and liabilities it had

agreed to assume via the 1985 Viking AAA.

In addressing the perceived ambiguity, the Court of Chancery properly considered

the course of performance following the closing of the Viking Stock Agreement. The

court concluded that, ―for a generation [Viking] has acted as if it was responsible for the

Houdaille-Era Claims.‖50 It found that, ―everyone who was a party to the Viking Stock

Agreement has acted as if [Viking] retained both liability for the Houdaille-Era Claims

and the Insurance Rights,‖ and that ―those parties even did so when these issues were

against their own interests.‖51

Travelers suggests that an internal Houdaille memorandum, dated October 16,

1987, demonstrates the intent underlying the Viking Stock Agreement. The

memorandum provides: ―Existing claims and claims for occurrences prior to the date of

48

Eagle Indus., 702 A.2d at 1232 (citations omitted).

49

Id. at 1233.

50

Viking Pump II, 2 A.3d at 101.

51

Id. at 102.

19

closing (but yet to be reported) will be the responsibility of Houdaille and would be

covered under the previously purchased Houdaille insurance policies.‖52 That is, the

memorandum contemplates that, after the sale of Viking and other subsidiaries, Houdaille

would remain liable for occurrences preceding the closing date, including the Houdaille-

Era Claims. But the 1987 memorandum fails to address, in view of the 1985 Viking

AAA, the fact that the liability and insurance rights related to the Houdaille-Era Claims

had been assigned previously to Viking. In short, it clarifies little. Moreover, the record

evidence does not indicate that the internal Houdaille memorandum was shared with, or

approved by, IDEX.

As Travelers concedes, the Viking Stock Agreement does not manifest any

intention of Viking, Houdaille, or IDEX to re-assign the assets and liabilities that were

assumed by Viking in 1985. However, the Viking AAA reflects a comprehensive

transfer from Houdaille to Viking of all of the liabilities and assets, including rights to

insurance coverage, pertaining to the Viking Pump business. The Viking Stock

Agreement and the extrinsic evidence related thereto did not address the Viking AAA, let

alone undo its valid, unambiguous, and broad transfer of all of the right, title, and interest

of Houdaille in and to all of the assets of Houdaille required for the conduct of the

business of Viking Pump.

iv. The Anti-Assignment Provisions Do Not Preclude Transfer of Post-Loss Claims

On appeal, the principal argument raised by the Excess Insurers with respect to the

validity of the assignments made to Warren and Viking is that, under the relevant

52

TA1074 (emphasis in original).

20

insurance policies, the insured‘s failure to obtain the consent of the insurer in advance of

assigning coverage rights invalidates the efficacy of the transfer. Both Warren and

Viking disagree, urging that the anti-assignment provisions do not bar the assignment of

insurance rights for pre-assignment occurrences.53 The primary liability, umbrella, and

53

The Excess Insurers have relied upon the California Supreme Court‘s decision Henkel

Corporation v. Hartford Accident & Indemnity Company, 62 P.3d 69 (Cal. 2003), as the

foundation for their argument that the anti-assignment provisions in the Houdaille insurance

policies vitiate Houdaille‘s assignments to Warren and Viking of insurance rights for pre-

assignment occurrences. The Court of Chancery found that ―New York law on this matter is in

accord with the dissent in Henkel, which stressed that anti-assignment clauses should not apply

in this context because ‗[t]he risk insured against does not increase because the insurer‘s duty to

defend and indemnify relates to an injury or damage which was suffered by the claimant prior to

the assignment of benefits to a successor corporation.‘‖ Viking Pump II, 2 A.3d at 105 (quoting

Henkel, 62 P.3d at 79 (Moreno, J., dissenting)) (emphasis in Henkel).

In Henkel, the California Supreme Court held that consent-to-assignment clauses

preclude an insured‘s transfer of the right to invoke coverage without the insurer‘s consent, even

after the coverage-triggering event had already occurred. It concluded that such attempted

assignments would be ineffective until the underlying claims ―bec[a]me an assignable chose in

action‖ by being ―reduced to a sum of money due or to become due under the policy.‖ Henkel,

62 P.3d at 75.

Based upon California Insurance Code § 520, the California Supreme Court, in Fluor

Corp. v. Superior Court of Orange County, overruled Henkel, holding that ―after personal injury

(or property damage) resulting in loss occurs within the time limits of the policy, an insurer is

precluded from refusing to honor an insured‘s assignment of the right to invoke defense or

indemnification coverage regarding that loss.‖ Fluor Corp. v. Superior Court of Orange Cnty.,

354 P.3d 302, 334 (Cal. 2015). The California Supreme Court observed that ―[t]his result

obtains even without consent by the insurer—and even though the dollar amount of the loss

remains unknown or undetermined until established later by a judgment or approved settlement.‖

Id. (emphasis added). The court in Henkel had not considered Section 520. In Fluor, the court

held that Section 520 ―dictates a result different from that reached in Henkel.‖ Id. at 304. The

Fluor court noted that ―[S]ection 520 bars an insurer, ‗after a loss has happened,‘ from refusing

to honor an insured‘s assignment of the right to invoke the insurance policy‘s coverage for such a

loss.‖ Id. (quoting CAL. INS. CODE § 520 (West)). The court further observed that ―the rule

embodied in Section 520 is consistent with the overwhelming majority of cases decided before

and since Henkel.‖ Id.

On August 26, 2015, this Court directed the parties to file simultaneous supplemental

memoranda regarding the California Supreme Court‘s decision in Fluor. The Excess Insurers

argued that New York has rejected a statute similar to California Insurance Code § 520, asserting

that ―[i]f a court were to impose the language of § 502 [sic] as New York law today, this would

effectively overrule the expressed will of that state‘s political branches.‖ Further, the Excess

Insurers urged that the facts in this matter are distinguishable from those of Fluor. Viking and

21

excess policies contain anti-assignment provisions, which generally provide that

―[a]ssignment of interest under this policy shall not bind [the insurer] until its consent is

endorsed hereon.‖54 The policies that do not contain such language either follow form or

contain a similarly-phrased exclusion.

Because the insurance policies do not contain a governing law provision, the Court

of Chancery engaged in a choice of law analysis to determine the State law that should

govern. We agree with its conclusion that New York law applies, as the law of that

jurisdiction had the most significant relationship to the insurance coverage as a whole.55

The Court of Chancery then found that ―Houdaille never sought or received the Excess

Insurers‘ consent to transfer rights under the Excess Policies . . . .‖56 Neither Warren nor

Viking contends that this factual finding is clearly erroneous. Instead, they assert that the

insurance coverage rights were transferred after the loss triggering coverage had already

taken place, rendering the anti-assignment provisions ineffective under New York law.57

―As a general matter, New York follows the majority rule that [a no-transfer]

provision is valid with respect to transfers that were made prior to, but not after, the

Warren argued that Fluor ―aligned California with the ‗overwhelming majority‘ of American

jurisdictions that authorize transfers of insurance rights for pre-assignment events.‖ We are not

persuaded by the Excess Insurers‘ supplemental arguments on appeal for the reasons set forth

herein.

54

See, e.g., TA1123.

55

Viking Pump II, 2 A.3d at 90. While Travelers argues on appeal that Florida law applies, and

that the Court of Chancery erred, it states that any error would be ―harmless because the laws of

Florida and New York are in accord on the issues raised in this brief.‖ Travelers Op. Br. 21 n.11.

56

Viking Pump II, 2 A.3d at 103.

57

Viking, with whom Warren joins, also contends that the anti-assignment provisions fail to

defeat the transfer of insurance rights under both New York and Florida law. See Viking Ans.

Br. 20.

22

insured-against loss has occurred.‖58 The principles underlying the majority rule are

twofold. First, after a loss has occurred, an assignment is not a transfer of the policy

itself, but rather of a claim for policy proceeds that previously vested against the insurer

and in favor of the original insured.59 As the United States Court of Appeals for the

Second Circuit explained, ―[t]he idea behind the majority rule is that, once the insured-

against loss has occurred, the policy-holder essentially is transferring a cause of action

rather than a particular risk profile.‖60 Second, when the loss occurs before the transfer of

insurance coverage rights, ―the characteristics of the [assignee] are of little importance:

regardless of any transfer[,] the insurer still covers only the risk it evaluated when it

wrote the policy.‖61 Insurers have a legitimate interest in deciding whether to allow

58

Globecon Grp., LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006) (citing

Travelers Indem. Co. v. Israel, 354 F.2d 488, 490 (2d Cir. 1965) (―Although assignment of the

policy prior to loss [is] ineffective without the consent of the insurer, no such approval [is]

necessary for an assignment of the right to the proceeds after the loss.‖) (alteration in Globecon

Grp.)) (citation omitted); see also Arrowood Indem. Co. v. Atl. Mut. Ins. Co., 96 A.D.3d 693, 694

(N.Y. App. Div. 2012) (same).

59

See 2 COUCH ON INSURANCE § 34:25 (3d ed. 2016) (―While the general rule regards liability

and indemnity policies as nonassignable personal contracts, assignment is valid following

occurrence of the loss insured against and is then regarded as chose in action rather than transfer

of actual policy.‖ (citations omitted)); id. at § 35:8 (―Although there is some authority to the

contrary, the great majority of courts adhere to the rule that general stipulations in policies

prohibiting assignments of the policy, except with the consent of the insurer, apply only to

assignments before loss, and do not prevent an assignment after loss, for the obvious reason that

the clause by its own terms ordinarily prohibits merely the assignment of the policy, as

distinguished from a claim arising under the policy, and the assignment before loss involves a

transfer of a contractual relationship while the assignment after loss is the transfer of a right to a

money claim.‖ (emphasis added) (citations omitted)).

60

Globecon Grp., 434 F.3d at 171.

61

Id. (quoting N. Ins. Co. of New York v. Allied Mut. Ins. Co., 955 F.2d 1353, 1358 (9th Cir.

1992)); see also 17 WILLISTON ON CONTRACTS § 49:126 (4th ed. 2016) (―Policy provisions that

require the company‘s consent for an assignment of rights are generally enforceable only before

a loss occurs, however. As a general principle, a clause restricting assignment does not in any

way limit the policyholder's power to make an assignment of the rights under the policy—

consisting of the right to receive the proceeds of the policy—after a loss has occurred. The

23

assignment of rights under an insurance policy, because the identity of an insured

determines the extent of an insurer‘s risk, and an assignee may present a greater risk of

loss to the insurer than the original insured. However, that interest is not impeded by the

assignment of rights to claims for pre-assignment occurrences since, in such instances,

the insurer is covering the risk it originally contracted to insure.

Here, at the time of assignment, the losses triggering the Excess Insurers‘ potential

liability had already occurred within the policy periods. Warren and Viking therefore

received Houdaille‘s accrued payment rights, which had vested in Houdaille prior to the

assignments. Further, Houdaille‘s policies provided occurrence-based coverage, such

that its claim to payment rights arose at the time of the injurious exposure to conditions

that resulted in personal injury. Houdaille‘s insurance rights accrued once parties were

injured by significant exposure to asbestos during the operative policy periods and prior

to the assignments to Warren and Viking.

We do not find persuasive the Excess Insurers‘ argument that the anti-assignment

provisions bar the transfers because ―the asbestos personal-injury claims for which

Viking and Warren now seek coverage were in no sense ‗fixed‘ or ‗measurable‘ at the

time of the purported assignments because they had yet to be asserted.‖62 The Excess

Insurers‘ potential liability arose at the time of injury. That the precise amount of

reasoning here is that once a loss occurs, an assignment of the policyholder's rights regarding

that loss in no way materially increases the risk to the insurer. After a loss occurs, the indemnity

policy is no longer an executory contract of insurance. It is now a vested claim against the

insurer and can be freely assigned or sold like any other chose in action or piece of property.‖

(citations omitted)).

62

Travelers Op. Br. 27 (citations omitted).

24

liability was not identifiable at the time of assignment did not alter the Excess Insurers‘

obligation to insure the risks for which they contracted.63 As they pertain to the pre-

assignment, insured-against losses, therefore, the anti-assignment provisions are

ineffective.64 Under New York law, Houdaille validly assigned the insurance coverage

rights to Warren and Viking. Accordingly, we affirm the decision of the Court of

Chancery on these issues.

B. The Superior Court Correctly Held that the 1980-1985 Liberty Primary Policies

Are Exhausted

The Superior Court held in its Final Judgment that ―[t]he aggregate limits for

products liability coverage of all primary and umbrella policies that [Liberty] issued to

Houdaille for time periods collectively covering January 1, 1972 to January 1, 1986 are

exhausted.‖65 It also held that ―[t]he aggregate limits for products liability coverage of all

primary and umbrella liability policies that Liberty or Travelers Indemnity Company

issued to Warren Pumps, Inc. for time periods collectively covering January 1, 1966 to

December 1, 1972 are exhausted.‖66 Finally, it held that, ―[a]ny aggregate limits for

products liability coverage of all alleged pre-1966 Liberty primary policies covering

Warren are deemed exhausted by Warren‘s settlement with Liberty . . . .‖67

1. Contentions of the Parties

63

See also Fluor, 354 P.3d at 334.

64

See Globecon Grp., 434 F.3d at 170; Travelers Indem. Co., 354 F.2d at 490; see also

Arrowood Indem. Co., 96 A.D.3d at 694; see also GreenHomes Am., LLC v. Farm Family Cas.

Ins. Co., 91 A.D.3d 1352, 1352-53 (N.Y. App. Div. 2012).

65

Final Judgment at JA1864.

66

Final Order at JA1864.

67

Final Order at JA1864. This Court has omitted reference to the amount of the settlement,

which has been designated as confidential by Warren.

25

Liberty issued primary and umbrella-layer coverage to Houdaille from 1972 to

1985. Only the primary policies for 1980 through 1985 had deductibles. On appeal, the

Excess Insurers contend that the Superior Court erred in holding that the Liberty

coverage for 1980-1985 was exhausted, triggering the Excess Policies, where the Liberty

policies included a $100,000 per-occurrence deductible. The Excess Insurers‘ appeal

relates only to Liberty‘s primary policies for 1980 through 1985. We agree with the

Superior Court that these policies have been exhausted.

The Excess Insurers do not dispute that Liberty paid the policies‘ full aggregate

limits. Rather, they claim that Liberty failed to collect the appropriate deductibles.

Central to their argument is their contention that payments made within the deductible

amount do not erode Liberty‘s aggregate limits.68 They argue that Viking and Warren

were motivated to avoid the deductible payments since almost all of their claims have

settled for under $100,000. The Excess Insurers contend that Liberty was similarly

motivated to effect a premature exhaustion of the policies since Liberty‘s defense costs

did not erode policy limits, and once Liberty‘s aggregate limits were reached, its

obligation to pay defense costs ended.69

68

The Excess Insurers offered an example which this Court has modified using fictional numbers

to preserve as confidential the amount of the policies‘ aggregate limits: Assume Liberty‘s

aggregate limit was $4,000 for a given year, and there was a $100 per-occurrence deductible. A

$5,000 covered claim for a single occurrence would exhaust Liberty‘s $4,000 aggregate limit for

a given year. But 400,000 $90 claims from separate occurrences otherwise entitled to coverage,

despite adding up to $36 million, would not deplete Liberty‘s $4,000 aggregate limit because

such payments are below the per-occurrence deductible and therefore do not, in their view, erode

the aggregate limit.

69

The parties do not dispute that defense costs do not erode the limits of the Liberty primary

policies.

26

The Excess Insurers argue that instead of paying the deductible, Warren and

Viking separately entered into multi–million dollar settlements with Liberty. The Excess

Insurers disagree with Viking and Warren‘s contention that the deductibles were

calculated and collected as part of an ―adjusted premium‖ and argue that such a finding

ignores the meaning of ―deductible‖ under New York law. They claim that the policies‘

deductible language is clear and that the Superior Court erred in ruling that ―whether or

not the deductible was appropriately applied on an actual per-occurrence basis is beside

the point[.]‖70

Viking and Warren contend that the Superior Court correctly found that Liberty‘s

1980-85 primary policies are exhausted. They proffer three arguments in response to the

Excess Insurers‘ challenges. First, they claim the Excess Policies are triggered when the

underlying insurers pay their full policy limits. They argue that while an excess insurer is

free to contest coverage under its own policy, it cannot avoid or reduce its liability by

challenging the propriety of an underlying insurer‘s decision to pay.

Second, they contend that whether the primary policies had $100,000 per-

occurrence deductibles is irrelevant since the deductible is part of the policy‘s limits, and

all payments of loss erode policy limits. Thus, they argue that because it is undisputed

that Liberty‘s indemnity payments under these policies matched the policies‘ total limits,

it does not matter who paid the loss (as between Viking and Warren or Liberty). Under

either scenario, they maintain that the payments exhausted the policies.

70

Viking Pump III, 2013 WL 7098824, at *20.

27

Third, they claim that the policies‘ plain language shows that Liberty properly

calculated and collected deductibles as part of an adjusted premium. The Premium

Endorsement expressly includes a ―Deductible Expense‖ component. The Superior Court

found that there was ―substantial evidence‖ supporting the jury‘s finding in favor of

Viking and Warren‘s contention that the deductible and premium adjustment provisions,

when read together, provided that the Liberty deductibles were calculated and paid as part

of the premium adjustment.71

2. The Proceedings Below

In the proceedings below, the parties agreed that, ―as to exhaustion, the policies

[were] unambiguous and, therefore, there [was] no need for extrinsic evidence.‖ 72 The

Deductible Endorsement, which provided for a $100,000 per-occurrence deductible,

reads, in pertinent part:

1. [Liberty‘s] obligation under Coverage A - Personal Injury Liability and

Coverage B - Property Damage Liability applies only to the amount of such

damages and ―allocated loss adjustment expense‖ in excess of a deductible

amount of $100,000 because of all ―personal injury‖ and ―property

damage‖ combined, as the result of any one occurrence.

2. [Liberty] shall be liable only for an amount equal to the ―Personal

Injury‖ and ―Property Damage‖, ―Each Occurrence‖ limit stated in the

policy minus the applicable amount of deductible damages (excluding

allocated loss adjustment expense) under the above Paragraph 1[;] and,

subject to the foregoing, only for the difference between the ―Personal

Injury‖ or ―Property Damage‖ aggregate limits stated in the policy and the

sum of deductible damages (excluding allocated loss adjustment expenses)

applicable.

71

Id.

72

Id. at *19.

28

3. The terms of the policy including those with respect to (a) [Liberty‘s]

rights and duties with respect to the defense of suits and (b) the insured

duties in the event of an occurrence apply irrespective of the application of

the deductible amount.

...

5. [Liberty] may pay any part of all of the deductible amount to effect

settlement of any claim or suit and, the ―named insured‖ shall promptly

reimburse [Liberty] for such part of all of the deductible amount as has

been paid by [Liberty].73

The Excess Insurers asserted in the trial court that Liberty had ―fail[ed] to properly

charge and collect a deductible[,]‖ and that therefore, as a matter of law, Viking and

Warren ―could not prove that the underlying Liberty policies [had been] exhausted.‖74

They contended that ―Liberty‘s $100,000 deductible must be applied to each claim under

each policy contributing to the indemnity payment, because each exposure is a separate

occurrence.‖75 In addition, they claimed that Liberty was ―only liable for claims above

the $100,000 deductible and below the $500,000 per-occurrence limit.‖76 Finally, the

Excess Insurers argued that the Premium Endorsement only permitted Liberty to collect a

―handling fee.‖77

For their part, Viking and Warren contended that the Premium Endorsement

permitted Liberty to collect a ―premium for the expenses of handling deductible losses‖

73

Joint App‘x to Warren Opening Br. JA3685 [hereinafter ―JA____‖]. Each 1980-1985 Liberty

primary policy also includes a $500,000 ―per occurrence‖ limit of liability and a specified

―aggregate‖ limit of liability for ―personal injury.‖ Addendum to Excess Insurers Opening Br.

A-42, -47, -54, -61, -71, -79; see also JA3630; JA3767; JA3923; JA4037; JA4181; JA4311.

74

Viking Pump III, 2013 WL 7098824, at *19.

75

Id.

76

Id.

77

Id.

29

and governed the calculation of premiums based on ―deductible amounts incurred.‖ 78

―Deductible amounts incurred‖ is defined in the Premium Endorsement to encompass ―all

losses and ‗allocated loss adjustment expenses‘ actually paid and reserves for ‗unpaid

losses‘ and ‗allocated loss adjustment expenses‘ as estimated by the company and which

are reimbursed or to be reimbursed by the named insured [in addition to] . . . payments

made directly by the named insured for all losses and ‗allocated loss adjustment expense‘

falling within the deductible.‖79

Additionally, Viking and Warren argued that their settlements to Liberty had

satisfied the deductible premium. They argued further that even if they had not paid the

deductible, Liberty remained obligated to indemnify up to the policy limits and therefore

would have exhausted the policies regardless. According to the plaintiffs at trial, insurers

generally ―reduce indemnity payments by the applicable deductible amount, eroding total

limits regardless of whether a deductible is paid.‖80 Plaintiffs argued that ―the question

of whether any portion of the amounts paid were true deductibles does not change the

fact that those payments count towards the exhaustion of the policy limits, and those

payments are sufficient as a matter of law to exhaust the 1980-85 Liberty primary

policies.‖81

78

Id. (internal quotation marks omitted).

79

JA4079; see also JA3827.

80

Viking Pump III, 2013 WL 7098824, at *19.

81

Id. (internal quotation marks omitted).

30

At trial, plaintiffs presented testimony from Carl Brigada, Liberty‘s managing

consultant responsible for coverage determinations.82 Brigada had been with Liberty for

36 years. He ―testified that Liberty‘s deductibles are based on a policy endorsement.‖ 83

Rather than requiring payment of a deductible when each claim is made, Liberty charged

the deductible in three stages—the advanced premium, the deductible premium, and the

excess premium—as a way for the insured to defer premiums over time.84 He maintained

that the deductible was ―nothing more than a device that‘s used to calculate the amount of

the premium,‖85 and that deductibles had ―no bearing on a policy‘s exhaustion.‖86 He

testified that Viking and Warren satisfied their deductibles for the relevant policies by

way of their settlement with Liberty.

Brigada‘s responsibilities at Liberty also included determining whether and when

exhaustion occurred on the Viking and Warren accounts. He testified that the relevant

policies were exhausted after Liberty made substantial indemnity payments to all the

Houdaille policies‘ insureds.

Theresa Carpenter, a senior claims specialist for International and Century,

testified for the Excess Insurers. She ―testified that Liberty‘s 1980-1984 and 1986

policies contained a $100,000 per-occurrence deductible, and Liberty‘s failure to capture

82

See, e.g., App‘x to Viking‘s Ans. Br. VB60-100 [hereinafter ―VB___].

83

Viking Pump III, 2013 WL 7098824, at *8.

84

Id.

85

Id. (internal quotation omitted).

86

Id.

31

Plaintiffs‘ deductible payment would artificially erode the indemnity limits.‖87 Based

upon her calculations, Liberty was still obligated under the Liberty Policies.

The jury rejected the Excess Insurers‘ contentions and found that Liberty‘s

deductibles were ―paid through the premium adjustment endorsement,‖88 and not on a

per-occurrence basis.

Based on the jury verdict and its own analysis, the Superior Court ruled that the

Liberty Policies were exhausted. The Superior Court observed that paragraph 3 of the

Deductible Endorsement requires that all parties thereto ―fulfill their obligations under

the policies, regardless of the application of the deductible amount.‖89 Additionally,

―paragraph 5 permits Liberty to pay the deductible itself in order to effectuate

settlements.‖90

Taking those points into consideration, the Superior Court held that ―it is clear that

whether or not the deductible was appropriately applied on an actual per-occurrence basis

is beside the point; the policy allows the parties to continue the underlying litigation

without the complicated per-occurrence deductible payments urged by [d]efendants.‖91

Further, the court held that ―the deductible endorsement clearly permits Liberty to accept

the deductible later, which is what the . . . settlement between Liberty and plaintiffs

represented, . . . [and that] although [p]laintiffs‘ argument regarding the deductible as a

premium calculation is not in accord with the endorsements‘ language, the deductible

87

Id. at *9 (internal citations omitted).

88

JA1480.

89

Viking Pump III, 2013 WL 7098824, at *20 (internal quotation marks omitted).

90

Id.

91

Id.

32

endorsement nonetheless permits Liberty to cover the deductible and later seek

reimbursement, presumably in the form of a premium payment.‖92 The Superior Court

concluded that Liberty‘s decision to collect the deductible in this manner was legal and

permitted under the terms of the relevant policies.93

The jury agreed with Warren and Viking. The Superior Court found that ―the jury

had an evidentiary basis to find, as it did, that Liberty‘s deductibles were part of a

premium plan, and that Warren and Viking satisfied any outstanding payment . . . .‖94

Because the trial court found that this aspect of the verdict was ―supported by substantial

evidence,‖ it concluded that there was ―no basis for overturning the jury‘s finding as to

Liberty‘s exhaustion.‖95

3. Standard of Review

This Court reviews the Superior Court‘s conclusions of law de novo and applies

the clearly erroneous standard to findings of fact.96 In addition, where supported by the

evidence, the verdict of a jury is conclusive.97

4. Discussion

92

Id.

93

Id.

94

Id.

95

Id.

96

DV Realty Advisors LLC v. Policemen’s Annuity & Benefit Fund of Chicago, 75 A.3d 101, 108

(Del. 2013).

97

Storey v. Camper, 401 A.2d 458, 465 (Del. 1979) (citing DEL. CONST. art. IV, § 11(1)(a)

(―[O]n appeal [in civil cases] from a verdict of a jury, the findings of the jury, if supported by

[the] evidence, shall be conclusive.‖)) (citations omitted).

33

We agree with Viking and Warren that the Liberty coverage for 1980-1985 was

exhausted. The Excess Insurers‘ challenge is largely dependent upon their erroneous

view that the $100,000 deductibles do not erode Liberty‘s aggregate limits.

The policies‘ Deductible Endorsements state that the policies‘ aggregate limits

(and not just per-occurrence limits) are reduced by payments within the deductible:

The company shall be liable only for an amount equal to the ―Personal

Injury‖ and ―Property Damage‖, ―Each Occurrence‖ limit stated in the

policy minus the applicable amount of deductible damages (excluding

allocated loss adjustment expense) under the above Paragraph 1. and,

subject to the foregoing, only for the difference between the ―Personal

Injury‖ or ―Property Damage‖ aggregate limits stated in the policy and the

sum of deductible damages (excluding allocated loss adjustment expenses)

applicable.98

Thus, whether an amount paid in settlement of a claim fell within the $100,000

deductible or not, its payment counted toward satisfaction of the aggregate policy limit.

It is undisputed that Liberty paid the full aggregate policy limits of each of the policies on

account of asbestos claims against Warren or Viking.99 In fact, Liberty overpaid limits in

certain instances in order to honor settlement commitments that exceeded the limits. 100 In

addition, Liberty paid approximately twice that amount pursuant to its defense

obligations, which did not erode limits. We agree with the parties and the trial court that

98

See, e.g., JA3685, ¶ 2.

99

See, e.g., JA1907-08, ¶¶ 76-77 (setting forth as an established fact for submission to the jury

that ―[t]he total amount of indemnity payments‖ documented as being made by Liberty under its

umbrella and primary policies exceeded the ―total aggregate policy limits for products liability

claims under‖ those policies).

100

VB88.

34

the Deductible Endorsement is unambiguous. As such, if a policy ―on its face is

reasonably susceptible of only one meaning, a court is not free to alter the contract.‖101

We agree with the Superior Court that under the policies, Liberty, under paragraph

5 of the Deductible Endorsement, ―may pay any part [or] all of the deductible amount to

effect settlement of any claim or suit . . . .‖102 Thus, exhaustion does not depend upon

who pays the deductible. Liberty settled a dispute over the deductibles with Warren and

Viking, retroactively billing them for the deductibles under the 1980-85 Liberty primary

policies and collecting them as part of Liberty‘s adjusted premiums.103 The trial court

correctly held that this provision of the Deductible Endorsement ―allow[ed] the parties to

continue the underlying litigation without the complicated per-occurrence deductible

payments urged by [the d]efendants.‖104 We agree with the Superior Court‘s conclusion

101

Appleby v. Chicago Title Ins. Co., 80 A.D.3d 546, 549 (N.Y. App. Div. 2011) (quoting White

v. Cont’l Cas. Co., 9 N.Y.3d 264, 267 (N.Y. 2007) (citations omitted); see also BLGH Holdings

LLC v. enXco LFG Holding, LLC, 41 A.3d 410, 414 (Del. 2012) (―Where, as here, the plain

language of a contract is unambiguous i.e., fairly or reasonably susceptible to only one

interpretation, we construe the contract in accordance with that plain meaning and will not resort

to extrinsic evidence to determine the parties‘ intentions.‖) (citation omitted).

102

JA3685, ¶ 5.

103

VB65-67; VB74; VB96-100. International and Century‘s claims handler, Theresa Carpenter,

(the sole witness for the Excess Insurers on the issue of Liberty‘s deductibles), agreed that

Viking‘s payment to Liberty was sufficient under the Premium Endorsement to satisfy the

deductibles for Viking‘s asbestos claims:

Q. . . . The payment made that Viking and Liberty take the position was a

deductible payment, you cannot sit here today and dispute that that was a

sufficient amount of pay-out deductibles up to the date that the payment was

made; correct?

A. Up to the date that payment was made, I can‘t dispute that.

VB102.

104

Viking Pump III, 2013 WL 7098824, at *20.

35

that ―Liberty‘s method of collecting the deductible after-the-fact . . . was legal . . . [and

that] [n]othing in the policy prevents it.‖105

Although we need not reach the issue, the Excess Insurers‘ construction of the

Premium Endorsement as simply a tool for calculating the cost of Liberty‘s handling

claims that fall within the per-occurrence deductibles ignores key features of the

Premium Endorsement. Among these features is the ―Deductible Expense‖ premium

which is calculated using the ―deductible amounts incurred,‖ which in turn includes

―payments made directly by the named insured for all losses and ‗allocated loss

adjustment expense‘ falling within the deductible.‖106 If the Premium Endorsement

merely dealt with calculating a premium for Liberty‘s handling of losses within the

deductible, it would make little sense to include in the endorsement a premium related to

the insured‘s payments within the deductible. But, even if the Excess Insurers‘ reading

were reasonable, the jury sided with Viking and Warren, and its verdict is supported

amply by Brigada‘s testimony.107 The jury was entitled to credit Brigada‘s testimony that

the settlement figure Liberty charged to Viking and Warren in 2008 satisfied any

obligation owed to Liberty relating to the deductibles.

105

Id. As the New York Court of Appeals stated in its Certification Opinion, ―parties to an

insurance arrangement may generally ‗contract as they wish and the courts will enforce their

agreements without passing on the substance of them.‘‖ Viking Pump V, 52 N.E.3d at 1151

(quoting J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 992 N.E.2d 1076, 1081 (N.Y. 2013)).

106

E.g., JA4079.

107

Additionally, New York courts commonly employ the contra proferentem rule and resolve

ambiguities against the issuer. See, e.g., Tonkin v. Cal. Ins. Co. of San Francisco, 62 N.E.2d

215, 216 (N.Y. 1945) (noting the ―well settled principle ‗that if a policy of insurance is written in

such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in

favor of the policy holder and against the company‘‖) (citation omitted) (quoting Hartol Prods.

Corp. v. Prudential Ins. Co. of Am., 47 N.E.2d 687, 690 (N.Y. 1943)).

36

For these reasons, we affirm the Superior Court‘s findings and conclusions with

respect to the exhaustion of the relevant Liberty policies.

C. We Affirm in Part and Reverse in Part the Superior Court’s Rulings With

Respect to Defense Costs

1. Contentions of the Parties

The Superior Court held that 33 of the Excess Policies at issue in this appeal

provide coverage to Viking and Warren for their defense costs.108 In deciding whether

the Excess Policies provide coverage for defense costs within or in addition to policy

limits, the Superior Court divided the policies into six categories, four of which we have

assigned to Groups for ease of reference in this discussion: (a) true follow-form; (b)

follow-form by endorsement; (c) ―coverage‖ and ―conditions‖ (―Group One‖); (d)

108

See Viking Pump III, 2013 WL 7098824, at *29 (holding that 32 of the Excess Policies

provide for coverage of defense costs; two of these were later resolved by the parties, leaving 30

Excess Policies at issue); Viking Pump IV, 2014 WL 1305003, at *2-3 (acknowledging that three

policies were ―inadvertently omitted‖ from the Superior Court‘s Opinion in Viking Pump III and

holding that all three of those policies ―provide full defense obligations in addition to policy

limits‖). To summarize, the 33 Excess Policies at issue in this appeal are (1) Fidelity Policy No.

SRX1889565; (2) National Union Policy No. 9601115; (3) Commercial Union Policy No.

CY9502120; (4) Republic Policy No. CDE0835; (5) Vanguard Policy No. CDE1462; (6) Puritan

Policy No. ML652652; (7) Aetna Policy No. 06XN243WCA; (8) Aetna Policy No.

06XN194WCA; (9) London Policy No. K25878; (10) London Policy No. 881/UHL0395; (11)

London Policy No. 881/UKL0340; (12) London Policy No. 881/UKL0341; (13) London Policy

No. 881/UKL0342; (14) Lexington Policy No. CE5504779; (15) Central National Policy No.

CNZ141951; (16) Central National Policy No. CNZ141989; (17) Century Indemnity Policy No.

CIZ425741; (18) Granite State Policy No. 62790163; (19) Old Republic Policy No. OZX11405;

(20) Puritan Policy No. ML651258; (21) Lexington Policy No. GC403427; (22) Lexington

Policy No. CE5503312; (23) London Policy No. CX5026; (24) London Policy No. K24961; (25)

London Policy No. 881/UGL0160; (26) London Policy No. 881/UGL0162; (27) California

Union Policy No. ZCX003889; (28) INA Policy No. XCP156562; (29) INA Policy No.

XCP145194; (30) Lexington Policy No. 5510143; (31) International Policy No. 5220113076;

(32) International Policy No. 5220282357; and (33) International Policy No. 5220489339.

37

―assistance‖ and ―cooperation‖ (―Group Two‖); (e) ―assistance and cooperation [with]

consent‖ (―Group Three‖); and (f) those that define ―ultimate net loss‖ (―Group Four‖).109

The Excess Insurers argue that the Superior Court erred for two principal reasons.

First, the Excess Insurers contend that Liberty has no duty to defend Viking‘s and

Warren‘s claims pursuant to the underlying policies. Second, the Excess Insurers assert

that certain Excess Policies contain express defense exceptions disclaiming liability for

defense costs. Specifically, the Excess Insurers urge that certain of the Excess Policies

―expressly disclaim any duty to provide defense costs,‖110 ―contain assistance and

cooperation clauses that give the insurer the right, but not the obligation, to assume the

defense,‖111 or incorporate definitions of ―loss‖ or ―ultimate net loss‖ that ―exclude any

obligation to pay defense costs.‖112

Joined by Viking, Warren responds by arguing that the Superior Court correctly

concluded that all of the Excess Policies at issue in this matter provide coverage for

defense costs. First, Warren contends that the Liberty umbrella policies cover defense

costs. Second, Warren asserts that the Excess Policies all incorporated the obligation to

cover defense costs set forth in the underlying Liberty umbrella policies.

In its appeal, Warren contends that the Superior Court erred in holding that

sixteen of the Excess Policies count the payment of defense costs against their policy

limits. In response, the Excess Insurers raise two principal arguments. First, they assert

109

See Viking Pump III, 2013 WL 7098824, at *24-28.

110

Excess Insurers Op. Br. 44.

111

Id. at 46.

112

Id. at 48.

38

that the policies do not pay defense costs at all. Second, they urge that if the Excess

Policies do provide for defense costs, such payments are limited to the relevant policy

limits.

2. Standard of Review

This Court reviews the Superior Court‘s construction and interpretation of

insurance policies de novo.113

3. Discussion

i. Liberty Has Defense Obligations Under Its Umbrella Policies

The Excess Insurers urge that the Superior Court erred by concluding that the

Liberty umbrella policies create defense obligations on behalf of the insurer. They

contend that Liberty has defense obligations only for claims not covered by underlying

insurance. Thus, the Excess Insurers argue that if Liberty has no duty to defend, the

Excess Insurers likewise have no duty to defend. In response, Warren asserts that the

Liberty policies contain a duty to pay defense costs.

Under New York law, ―[a]n insurance agreement is subject to principles of

contract interpretation.‖114 ―When construing insurance policies, the language of the

‗contracts must be interpreted according to common speech and consistent with the

113

Phillips Home Builders, Inc. v. Travelers Ins. Co., 700 A.2d 127, 129 (Del. 1997); see also

Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992)

(―The proper construction of any contract, including an insurance contract, is purely a question

of law. Accordingly, we review de novo for legal error the Superior Court‘s decision.‖ (internal

citations omitted)).

114

Universal Am. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 37 N.E.3d 78, 80 (N.Y.

2015).

39

reasonable expectation of the average insured.‘‖115 A reviewing court ―must construe the

policy in a way that affords a fair meaning to all of the language employed by the parties

in the contract and leaves no provision without force and effect.‖116 ―New York applies

‗a functional analysis to separate lines of insurance, and an insurance policy should be

read in light of the role it is to play.‘‖117 Further, ―while ambiguities in an insurance

policy are to be construed against the insurer, a contract is not ambiguous if the language

it uses has a definite and precise meaning, unattended by danger of misconception in the

purport of the [agreement] itself, and concerning which there is no reasonable basis for a

difference of opinion.‖118

The Liberty umbrella policies provide:

INVESTIGATION, DEFENSE, SETTLEMENT, ASSISTANCE AND

COOPERATION

With respect to personal injury . . . covered under this policy (or which

would be covered but for the Insured’s retention as stated in the

declarations), but not covered under any underlying policy or any other

insurance, the company will

(1) defend any suit against the Insured seeking damages on account thereof,

even if such suit is groundless, false, or fraudulent; . . .

(2) pay all expenses incurred by the company, all costs taxed against the

Insured in any suit defended by the company and all interest on the

entire amount of any judgment therein . . . ;

115

Viking Pump V, 52 N.E.3d at 1151 (quoting Dean v. Tower Ins. Co. of N.Y., 979 N.E.2d 1143,

1145 (N.Y. 2012)).

116

Id. (citation omitted) (internal quotation marks omitted).

117

Jefferson Ins. Co. of N.Y. v. Travelers Indem. Co., 703 N.E.2d 1221, 1226 (N.Y. 1998)

(quoting Graphic Arts Mut. Ins. Co. v. Bakers Mut. Ins. Co. of N.Y., 382 N.E.2d 1347, 1350

(N.Y. 1978)).

118

Viking Pump V, 52 N.E.3d at 1151 (internal citations omitted) (internal quotation marks

omitted) (alterations in Viking Pump and added).

40

* * *

(4) pay all reasonable expenses incurred by the Insured at the company’s

request in assisting the company in the investigation or defense of any

claim or suit . . . ;

and the amounts so incurred, except settlement of claims and suits, are not

subject to the insured‘s retention as stated in the declarations and are

payable by the company in addition to the applicable limit of liability of

this policy.119

Based upon the foregoing contractual language, the Excess Insurers assert that use

of the term ―covered‖ in the Liberty umbrella policies ―should be construed as referring

to whether the primary policy provides coverage and not to whether it is collectible.‖120

They argue further that, ―even if the primary policies were fully exhausted, the

underlying asbestos claims would remain ‗covered‘ by the primary policy so that Liberty

would have no defense obligations under its umbrella policies.‖121

In construing the agreements as a whole, the first section of the Liberty umbrella

policies, entitled ―Coverage—Excess Liability,‖ provides:

The company will pay on behalf of the Insured all sums in excess of the

retained limit which the Insured shall become legally obligated to pay, or

with the consent of the company, agrees to pay, as damages, direct or

consequential, because of: (a) personal injury . . . .122

The policy defines ―retained limit‖ as follows:

―retained limit‖ means as to each occurrence with respect to which

insurance is afforded under this policy:

119

E.g., JA3721-22 (emphasis added).

120

Excess Insurers Op. Br. 43 (quoting Am. Safety Indem. Co. v. 612 Realty LLC, 2009 WL

2407822, at *5 (N.Y. Sup. Ct. Aug. 4, 2009)) (internal quotation marks omitted).

121

Id. at 43-44 (footnote omitted).

122

JA3721.

41

(1) if any underlying policy is also applicable or would be applicable

but for breach of policy conditions; the relevant ―each person‖,

―each accident‖, ―each occurrence‖ or similar limit of liability

stated therein (less any reduction thereof by reason of an over-

riding aggregate limit of liability) plus all amounts payable under

other insurance, if any;

(2) if any underlying policy otherwise applicable is inapplicable by

reason of exhaustion of an aggregate limit of liability; all

amounts payable under other insurance, if any . . . .123

―For purpose of determining the retained limit,‖ Section V states that ―‗other insurance‘

means any other valid and collectible insurance (except under an underlying policy)

which is available to the Insured, or would be available to the Insured in the absence of

this policy . . . .‖124 The definition of ―retained limit‖ continues by observing that ―the

intention‖ of the policy is that it ―shall not apply under or contribute with‖ such other

―valid and collectible‖ insurance.125

The plain language of the Liberty umbrella policies suggests that the policies were

intended to provide coverage ―if any underlying policy . . . [was] inapplicable by reason

of exhaustion.‖126 The Liberty umbrella policies were purchased to provide coverage in

123

JA3723.

124

JA3723.

125

JA3723. Throughout this litigation, the Excess Insurers have relied upon Pergament

Distributors, Inc. v. Old Republic Insurance Company, 128 A.D.2d 760 (N.Y. App. Div. 1987),

in support of their contention that the terms ―covered‖ and ―not covered‖ refer ―to whether the

policy insures against a certain risk[,] not whether the insured can collect on an underlying

policy.‖ Viking Pump III, 2013 WL 7098824, at *23 (alteration in original) (citation omitted)

(internal quotation marks omitted). The Superior Court rejected the Excess Insurers‘ argument,

reasoning that ―[t]he policy discussed in Pergament differs, however, from the Liberty[] policies

here. Pergament examined a policy‘s language to determine whether an umbrella policy must

drop down to provide primary coverage where the primary carrier was insolvent. Moreover,

Pergament, itself, is limited to the policy ‗at bar,‘ in that case‘s context.‖ Id. (citations omitted).

On that basis, the Superior Court concluded that Pergament was inapposite. We agree.

126

JA3723.

42

excess of any exhausted primary coverage. A reading of ―covered‖ to refer to whether

the primary policy provides coverage, and not whether it is collectible, distorts the actual

purpose of the Liberty umbrella policies. Even assuming, arguendo, the terms ―covered

under‖ and ―not covered‖ are ambiguous,127 the jury found that that Liberty‘s umbrella

policies maintain defense obligations.128 The Jury Verdict Form asked the jury: ―Did

Plaintiffs prove that Liberty was obligated under its umbrella policies to pay defense

costs for asbestos claims once the underlying Liberty primary policies were

exhausted?‖129 The jury answered in the affirmative.130 Thus, in the context of this

multi-layered, comprehensive insurance coverage program, and considering the general

127

The policy associates the term ―cover‖ both with risks assumed by the insurer and with

payment obligations maintained by the insured. Compare JA3721 (―With respect to personal

injury, property damage or advertising injury or damage covered under this policy . . . but not

covered under any underlying policy or any other insurance . . . .‖) (emphasis added), with id.

(―which would be covered but for the Insured‘s retention‖) (emphasis added). But, in other

instances, the policy uses the term ―payable under‖ when referencing funds available pursuant to

underlying policies or other valid and collectible insurance. For example, the policy defines

―defense expenses‖ as follows:

―defense expenses‖ means all reasonable expenses (other than the amount

of any settlement) incurred by the named insured in discharging the named

insured‘s obligations in Section II with respect to investigation, defense or

settlement of claims or suits, except . . . any such expenses payable under

an underlying policy or any other valid and collectible insurance.

JA3722 (emphasis added). Under New York law, if we were to conclude that the Liberty

umbrella policies were ambiguous, that ambiguity must be resolved in favor of the insured.

Viking Pump V, 52 N.E.3d at 1151 (quoting Dean, 979 N.E.2d at 1145) (―[A]mbiguities in an

insurance policy are to be construed against the insurer[.]‖).

128

Notably, Warren observes, and the Excess Insurers acknowledge, that Liberty has defended

the asbestos claims at issue in this case. The Superior Court‘s ruling is consistent with Liberty‘s

own application of the umbrella policies for more than two decades. Regardless of this extrinsic

evidence, the plain language of the umbrella policies compels the conclusion that the insurer has

defense obligations.

129

JA1481.

130

Id.; see also Viking Pump III, 2013 WL 7098824, at *24.

43

purpose of the Liberty umbrella policies, the reasonable expectation of the average

insured would be that ―covered under‖ concerns whether the underlying insurance is

collectible.131 We affirm the Superior Court‘s conclusion that Liberty has defense

obligations under its umbrella policies.

ii. Liberty’s Defense Obligations under Its Umbrella Policies Are Paid in Addition to

Policy Limits

The Liberty umbrella policies unambiguously provide that Liberty has a duty to

pay defense costs in addition to policy limits. As set forth above, under

―INVESTIGATION, DEFENSE, SETTLEMENT, ASSISTANCE AND

COOPERATION,‖ the umbrella policies provide that Liberty will pay defense costs and

that such costs ―are not subject to the insured‘s retention . . . and are payable by the

company in addition to the applicable limit of liability of this policy.‖132 Thus, the

underlying policies require Liberty to pay defense costs in addition to the applicable

policy limits. Consequently, as the Superior Court held, the Excess Policies that are truly

follow form or follow form by endorsement have a corresponding duty to pay defense

costs in addition to the relevant policy limits.133

131

See Jefferson Ins. Co. of N.Y., 703 N.E.2d at 1226 (quoting Graphic Arts Mut. Ins. Co., 382

N.E.2d at 1350) (noting that ―an insurance policy should be read in light of the role it is to

play‖); Viking Pump V, 52 N.E.3d at 1151 (quoting Dean, 979 N.E.2d at 1145) (stating that the

language of insurance contracts must be interpreted ―consistent with the reasonable expectation

of the average insured‖).

132

JA3721-22 (emphasis added).

133

The Superior Court found that the Excess Policies that truly followed form and followed form

by endorsement had full defense obligations in addition to the policy limits. Viking Pump III,

2013 WL 7098824, at *24-25. Those included the following eight policies: Fidelity Policy No.

SRX1889565; National Union Policy No. 9601115; Commercial Union Policy No. CY9502120;

Republic Policy No. CDE0835; Vanguard Policy No. CDE1462; Puritan Policy No. ML652652;

and Aetna Policy Nos. 06XN243WCA and 06XN194WCA. Without reference to specific policy

44

iii. The Group One Policies Pay Defense Costs Within Policy Limits

The Group One policies contain what the Superior Court referred to as ―coverage‖

and ―conditions‖ provisions.134 The relevant provisions in each of the Group One

policies are substantially similar to the following:

I. COVERAGE

The Company hereby agrees, subject to the limitations, terms and

conditions hereinafter 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 or (b) assumed under contract or

agreement by the Named Insured . . . for damages, direct or consequential

and expenses on account of . . . (i) Personal injuries . . . caused by or arising

out of each occurrence . . . and arising out of the hazards covered by and as

defined in the Underlying Umbrella Policies . . . .

II. LIMIT OF LIABILITY – UNDERLYING LIMITS

It is expressly agreed that liability shall attach to the Company only after

the Underlying Umbrella Insurers have paid or have been held liable to pay

the full amount of their respective ultimate net loss liability . . . and the

Company shall then be liable to pay only the excess thereof up to a further

[specified monetary sum] ultimate net loss in all in respect of each

occurrence – subject to a limit of [a specified monetary sum] in the

language, the Excess Insurers argue that each of these policies—excluding the Aetna policies—

has no defense obligation. Excess Insurers Op. Br. 43-44 n.9. Because we conclude that Liberty

maintains defense obligations under its umbrella policies, we reject this contention. Cf. Excess

Insurers‘ Mem. of Law in Support of their Renewed Mot. for J. as a Matter of Law Pursuant to

R. 50(b) at 25, Viking Pump, Inc. v. Century Indem. Co. (No. N10C-06-141 FSS) (Jan. 31, 2013)

[hereinafter ―Excess Insurers JMOL Mem. at JA____‖], available at JA1550-95 (―A few Excess

Policies do not contain defense carve-outs and therefore follow form to the Liberty umbrella

policy defense obligations.‖) (citations omitted).

134

See Viking Pump III, 2013 WL 7098824, at *25-26. The Group One policies include Central

National Insurance Company of Omaha Policy Nos. CNZ141951 and CNZ141989; Century

Indemnity Company Policy No. CIZ425741; First State Policy Nos. FB000022 and 929817;

Granite State Policy No. 62790163; Old Republic Policy No. OZX11405; Puritan Policy No.

ML651258; and Lexington Policy Nos. GC403427 and CE5503312. We conclude, however,

that the analysis applicable to the Group Four policies—not the Group One policies—is

applicable to Lexington Policy No. CE5503312. Further, the First State policies are not before

this Court, as the disputes concerning those policies settled since the Superior Court‘s decision.

45

aggregate for each annual period during the currency of this Policy . . .

separately in respect of Personal Injury (fatal or non-fatal) by Occupational

Disease sustained by any employees of the insured.

CONDITIONS

* * *

2. MAINTENANCE OF UNDERLYING UMBRELLA INSURANCE

This Policy is subject to the same terms, definitions, exclusions and

conditions (except as regards the premium, the amount and limits of

liability and except as otherwise provided herein) as are contained in or as

may be added to the Underlying Umbrella Policies . . . prior to the

happening of an occurrence for which claim is made hereunder.135

Concluding that these policies covered defense costs, the Superior Court found

that the Group One policies paid expenses subject to policy limitations, ―meaning

aggregate limits.‖136 The Superior Court relied principally upon the Maintenance

Provision in holding that the Group One policies pay defense costs within policy limits.

Warren contends that the ―amount and limits‖ language in the Maintenance

Provisions of the Group One policies ensures only that each such policy has its own

stated limits, without reference to the type (e.g., ―each occurrence‖ or ―aggregate‖) or

amount of the underlying policy limits. Warren argues further that, even if the Group

One policies did not incorporate Liberty‘s obligation to pay defense costs in addition to

policy limits, such policies independently provide for payment of defense costs on that

basis. The Excess Insurers urge that the Group One policies pay defense costs within

135

JA3746 (emphasis added). For convenience, we refer to the ―coverage‖ clause and similar

language as the ―Coverage Provision;‖ the ―limit of liability‖ clause and similar language as the

―Limit of Liability Provision;‖ and the ―maintenance of underlying umbrella insurance‖ clause

and similar language as the ―Maintenance Provision.‖

136

Viking Pump III, 2013 WL 7098824, at *25.

46

policy limits, to the extent that such policies cover defense costs at all. Before the

Superior Court, however, the Excess Insurers conceded that the Group One policies

―have limited obligations to reimburse defense costs within limits for covered damages

only.‖137

Under New York law, ―whenever an insurer wishes to exclude certain coverage

from its policy obligations, it must do so ‗in clear and unmistakable‘ language.‖138 In

order to be enforced, ―exclusions or exceptions from policy coverage must be specific

and clear . . . .‖139 ―They are not to be extended by interpretation or implication, but are

to be accorded a strict and narrow construction.‖140 The insurer bears the burden of

―establishing that the exclusions or exemptions apply in the particular case, and that they

are subject to no other reasonable interpretation.‖141 Accordingly, ―[i]f there is

uncertainty concerning its meaning, a policy is construed to embrace coverage.‖142

We agree with the Superior Court‘s ultimate conclusion that the Group One

policies pay within policy limits, but find instead that the more pertinent limitation is

contained in the Coverage Provision of such policies. The Group One policies limit the

scope of indemnification for damages and expenses, making them subject to the policy

137

Excess Insurers JMOL Mem. at JA1583 (emphasis removed).

138

Seaboard Sur. Co. v. Gillette Co., 476 N.E.2d 272, 275 (N.Y. 1984) (quoting Kratzenstein v.

W. Assurance Co., 22 N.E. 221, 223 (N.Y. 1889)) (citation omitted).

139

Id.

140

Id. (citations omitted).

141

Id. (internal citations omitted).

142

Avondale Indus., Inc. v. Travelers Indem. Co., 887 F.2d 1200, 1207 (2d Cir. 1989) (citations

omitted).

47

limits.143 By contrast, the Liberty umbrella policies treat damages and expenses

differently. The Liberty policies provide coverage for damages subject to limits of

liability, but provide coverage for expenses in addition to the limits of liability.144

Expenses on account of personal injuries caused by or arising out of each occurrence,

under the Group One policies, are payable by the insurer, according to the Coverage

Provision, ―subject to the limitations, terms[,] and conditions‖ of the agreement.145 Thus,

the Group One policies speak to damages and expenses in a similar manner: Because

indemnification for damages is limited to policy limits, so too are all sums payable for

expenses.146 Accordingly, the Coverage Provision contained in the Group One policies

makes clear that the parties intended that the insurer would, within the limits specified by

the policy, indemnify the insured for both damages and expenses as they relate to

personal injury claims.

We do not find persuasive Warren‘s argument that the use of the term ―ultimate

net loss‖ in the Group One policies independently requires payment of expenses in

addition to the relevant policy limits. Warren contends that ―ultimate net loss‖ is not

defined, and the policies do not otherwise state that expenses fall within ―ultimate net

loss.‖ As used in the Group One policies, the undefined term ―ultimate net loss‖ does not

create an independent duty to pay defense expenses outside the policy limits. Rather, the

Group One policies employ ―ultimate net loss‖ to establish a limit that the insurer is

143

See, e.g., JA3746.

144

See, e.g., JA3722.

145

See, e.g., JA3746.

146

See, e.g., JA3746 (―damages, direct or consequential and expenses on account of (i) Personal

injuries . . . .‖) (emphasis added).

48

obligated to pay, and such limit is inclusive of expenses. The Group One policies fail to

exclude defense costs from the limit of covered ultimate net loss.

The Superior Court‘s conclusion that the Group One policies pay defense costs

within policy limits is affirmed.

iv. The Group Two Policies Pay Defense Costs Within Policy Limits

The four London policies constituting Group Two utilize ―assistance and

cooperation‖ clauses.147 The relevant provisions in each of the Group Two policies are

substantially similar to the following:

I. COVERAGE

Underwriters hereby agree, subject to the limitations, terms and conditions

hereinafter mentioned, to indemnify the Assured for ultimate net loss which

the Assured may sustain by reason of the liability imposed upon the

Assured by law, or assumed by the Assured under contract for damages on

account of: (a) Personal Injury Liability . . . Arising out of the hazards

covered by and as defined in the Underlying Umbrella Policy issued by the

Liberty Mutual Insurance Company . . . .

II. LIMIT OF LIABILITY – UNDERLYING LIMIT

It is expressly agreed that liability shall attach to the Underwriters only

after the Underlying Umbrella Insurers have paid or have been held liable

to pay the full amount of their respective ultimate net loss liability . . . and

the Underwriters shall then be liable to pay only the excess thereof up to a

further [specified monetary sum] ultimate net loss in all respect of each

occurrence – subject to a limit of [a specified monetary sum] in the

aggregate for each annual period during the currency of this Policy in

respect of each hazard insured with an aggregate limit in the Underlying

Umbrella Policy.

CONDITIONS

1. MAINTENANCE OF UNDERLYING UMBRELLA INSURANCE

147

The policies constituting Group Two include London Policy Nos. CX5026, K24961,

UGL0160, and UGL0162.

49

This Policy is subject to the same terms, definitions, exclusions and

conditions (except as regards the premium, the amount and limits of

liability, and except as otherwise provided herein) as are contained in or as

may be added to the said Underlying Umbrella Policy prior to the

happening of an occurrence for which claim is made hereunder.

* * *

3. ASSISTANCE AND COOPERATION OF THE ASSURED148

The Underwriters shall not be called upon to assume charge of the

settlement of defense of any claim made, suit brought or proceeding

instituted against the Assured but the Underwriters shall have the right and

shall be given the opportunity to associate with the Assured or the

Assured‘s underlying insurers, or both, in the defense and control of any

claim, suit or proceeding relative to an occurrence where the claim or suit

involves or appears reasonably likely to involve the Underwriters, in which

event the Assured and the Underwriters shall cooperate in all things in the

defense of such claim, suit or proceeding.149

148

For convenience, we refer to the ―assistance and cooperation‖ clause and similar language as

the ―Assistance Provision.‖

149

See, e.g., JA2395-96. The Excess Insurers state that the Group Two policies provide as

follows: ―The [insurers] shall not be called upon to assume charge of the settlement or defense

of any claim made, suit brought or proceeding instituted against the insured . . . .‖ See Excess

Insurers Op. Br. 46 (emphasis in original and removed) (alterations in original and added).

However, the Assistance Provisions incorporated in all of the Group Two policies provide that

the insurers ―shall not be called upon to assume charge of the settlement of defense of any claim

made, suit brought or proceeding instituted against the Assured . . . .‖ E.g. JA2396. Based upon

our independent review of the Excess Policies, we also observe that at least one additional

policy, London Policy No. 881/UHL0395, provides that ―[t]he Underwriters shall not be called

upon to assume charge of the settlement of defense of any claim made, suit brought or

proceeding instituted against the Assured . . . .‖ JA3073 (emphasis added).

The Superior Court apparently assumed the word ―of‖ should have been ―or,‖ as it quoted

the relevant language as ―assume charge of the settlement of [sic] defense . . . .‖ Viking Pump

III, 2013 WL 7098824, at *26. None of the briefing addressed whether the Group Two policies

contain a typographical error in the phrase ―settlement of defense.‖ Both the parties and the

Superior Court have treated the Group Two policies as if they contain the phrase ―settlement or

defense,‖ and we decline to proceed on an alternative basis in the first instance. We sympathize

with the Superior Court in its review of each of the Excess Policies in this matter—the poor

quality of the reproductions and voluminous record have complicated the review process for this

Court as well.

50

In view of the Maintenance Provisions contained in the Group Two policies, the

Superior Court held that such clauses limited defense costs to within policy limits.

Warren challenges this holding and relies upon its arguments asserted with respect to

Group One. Warren contends that Group Two Maintenance Provisions function to

ensure only that each such policy has its own stated limits and that those provisions do

not alter the Excess Insurers‘ obligation to provide coverage for the same risks in the

same manner as the underlying insurer. Warren also asserts that the Group Two policies

independently provide for payment of defense costs in addition to policy limits.

The Excess Insurers raise two arguments with respect to the Group Two policies.

First, they contend that the Group Two policies clearly disclaim coverage for defense

costs.150 Second, the Excess Insurers urge that the policies follow form to the underlying

policies, except as regards the ―amount and limits of liability.‖

The Group Two policies follow form to the underlying umbrella policies,

maintaining both a duty to defend and a duty to pay defense expenses absent clear

contradictory language. The Group Two Excess Insurers opted out of any duty to

150

The Excess Insurers rely upon In re September 11th Liability Insurance Coverage Cases, 458

F. Supp. 2d 104 (S.D.N.Y. 2006), for the proposition that the Group Two policies disclaim

coverage of defense costs. There, certain excess policies incorporated standard forms absolving

them of the obligation to provide a defense, and, as discovery established, the underlying

primary and umbrella carriers (to which they followed form) had refused to provide defense cost

coverage in the absence of adequate loss history data. The court found that the evidence was

overwhelming that Zurich (provider of the primary and umbrella policies) refused, in the absence

of adequate loss history, to issue a policy that included defense cost coverage. In re Sept. 11th

Liab. Ins. Coverage Cases, 458 F. Supp. 2d 104, 199, 121 (S.D.N.Y. 2006). We agree with the

reasoning of the United States Court of Appeals for the Second Circuit in Stonewall Insurance

Company v. Asbestos Claims Management Corporation, 73 F.3d 1178 (2d Cir. 1995), modified

on other grounds, 85 F.3d 49 (2d Cir. 1996), and reject the notion that the Assistance Provisions

in the Excess Policies ―clearly disclaim coverage for defense costs.‖ See infra note 151.

51

―assume charge‖ of ―the settlement of defense of any claim‖ in the foregoing Assistance

Provision.151 Notably, the Liberty policies treat the duty to defend and the duty to pay

defense expenses as being separate and distinct, addressing the duties in separate portions

of the agreement.152 Although the Excess Insurers disclaimed their duty to defend, they

failed to effectively exclude the obligation to reimburse defense costs.153

As to whether the Group Two policies cover defense costs within policy limits, the

Group Two policies provide that they cover the ―ultimate net loss‖ relative to personal

151

See Stonewall, 73 F.3d at 1218. In Stonewall, the United States Court of Appeals for the

Second Circuit recognized two distinct duties: the duty to defend and a duty to reimburse

defense costs. There, a portion of the policies in question provided that the insurer would have

the option to assume charge of the defense, but would not be obligated to do so. Id. (setting forth

policy language providing that the insurer ―‗may, at the sole option of the company, assume

charge of the . . . defense,‘ . . . [but] the Company shall not be obligated to assume‘ [the]

defense‖ (alteration in original and added) (emphasis in original)). Applying Texas law, the

Second Circuit held that while language substantially similar to that of the Assistance Provisions

at issue in the instant matter negates the duty to defend claims, it has no impact on the duty to

reimburse the insured for the cost of defending claims covered by the insurance policy. Id.

(―[The insured] argues that the Texas Endorsement, while negating the duty to assume defense of

the Texas claims, does not in any way limit the Insurers‘ obligation to reimburse defense costs

incurred. We agree.‖). See also In re WorldCom, Inc. Sec. Litig., 354 F. Supp. 2d 455, 464 n.11

(S.D.N.Y. 2005) (citations omitted).

152

E.g., JA3721-22; JA3851-52; JA3993-94; JA4108-09.

153

See Stonewall, 73 F.3d at 1218. The Excess Insurers rely upon M.H. Lipiner & Son, Inc. v.

Hanover Ins. Co., 869 F.2d 685 (2d Cir. 1989), for the proposition that courts applying New

York law when interpreting assistance and cooperation clauses have found that insurers have no

duty to defend. There, the plaintiff, a jewelry business, brought a declaratory judgment action

that imposed a responsibility on the insurer to defend and indemnify the company following an

alleged ―misdelivery‖ of precious stones. The United States District Court for the Southern

District of New York concluded that the insurer ―properly relied on a specific exclusion clause in

the insurance policy‖ when it disclaimed ―any obligation to defend or indemnify.‖ Id. at 686.

On appeal, the United States Court of Appeals for the Second Circuit affirmed, ―agree[ing] that

the insurance policy in question d[id] not provide the insurance coverage claimed‖ by the

plaintiff. Id. The Second Circuit held that, ―[u]nder such circumstances, an insurer is entitled to

judgment declaring that it need not defend the insured.‖ Id. at 688 (citing Lionel Freedman, Inc.

v. Glens Falls Ins. Co., 267 N.E.2d 93, 94 (N.Y. 1971) (―[I]f we can determine that no basis for

recovery within the coverage of the policy is stated in the complaint, we may sustain defendant‘s

refusal to defend.‖)). The exclusion of coverage in M.H. Lipiner distinguishes it from the facts

of this case.

52

injury claims.154 The policies state that the insurers ―agree, subject to the limitations,

terms and conditions‖ of the insurance contract, ―to indemnify the Assured for ultimate

net loss which the Assured may sustain by reason of the liability imposed upon the

Assured by law, or assumed by the Assured under contract for damages on account of . . .

Personal Injury Liability . . . .‖155 The term ―ultimate net loss‖ is not defined in the

Group Two policies. Absent a definition of the term, ―ultimate net loss‖ includes all

sums an insurer is obligated to pay to the insured pursuant to an insurance policy, free

from any deductions. ―Ultimate net loss,‖ in the Group Two policies, is used to establish

a capped limit that the insurer is obligated to pay—and such limit is inclusive of expenses

within this contractual framework. Stated otherwise, the Group Two policies do not

exclude defense costs from the limit of covered ultimate net loss.156 The Group Two

policies thus indicate that the parties intended that the insurer would, within the limits

specified by the policy, indemnify the insured for expenses. Accordingly, the Superior

Court‘s conclusion that the Group Two policies pay defense costs within policy limits is

affirmed.

v. The Group Three Policies Pay Defense Costs In Addition to Policy Limits, with

Consent of the Insurer

154

See, e.g., JA2395.

155

See, e.g., JA2395.

156

Compare Stonewall, 73 F.3d at 1218 (citing Home Ins. Co. v. Am. Home Prods. Corp., 902

F.2d 1111, 1113-14 (2d Cir. 1990) (holding that definition of ―ultimate net loss,‖ which was

amended to delete reference to ―expenses,‖ ―unambiguously include[d] only damages and not

defense costs‖)). In contrast to the undefined term ―ultimate net loss‖ in the Group Two policies,

the defined term ―ultimate net loss‖ in the Group Four policies leads us to a different result. See

infra at II.C.3.vi.

53

The Group Three policies utilize assistance, cooperation, and consent clauses

together as an exception to their follow-form obligations, requiring the insurer‘s consent

before the insured may obligate the insurer to provide a defense.157 The relevant

provisions in each of the Group Three policies are substantially similar to the following:

B. NOW, this certificate is to indemnify the Insured in accordance with the

applicable insuring agreements, exclusions and conditions of the primary

insurance for excess loss . . . .

C. The insurance afforded by this certificate shall follow that of the

primary insurance except:

(1) anything in this certificate or the primary insurance to the contrary

notwithstanding, [the insurer] shall not be obligated to assume charge of the

settlement or defense of any claim or suit brought or proceeding instituted

against the Insured, but [the insurer] shall have the right and be given the

opportunity to associate with the Insured in the defense or control of any

claim, suit or proceeding which appears reasonably likely to involve [the

insurer], in which event the Insured and [the insurer] shall cooperate in all

things in the defense or control of such claim, suit or proceeding, but no

obligation shall be incurred on behalf of [the insurer] without its consent

being first obtained . . . ; (2) the insurance afforded by this certificate shall

not apply to any expenses for which insurance is provided in the primary

insurance . . . . 158

The Superior Court found that the Group Three policies follow form to the

underlying Liberty policies. But it concluded that the Group Three policies do not create

a duty for the Excess Insurers to ―lead the defense,‖ and that they instead enable the

insurers to ―affiliate‖ with the defense. Further, the Superior Court determined that these

157

The Group Three policies include: California Union Policy No. ZCX003889; INA Policy

Nos. XCP156562 and XCP145194; and Lexington Policy No. 5510143. We conclude, however,

that the analysis applicable to the Group Four policies—not the Group Three policies—is

applicable to Lexington Policy No. 5510143.

158

See, e.g., JA4421. For convenience, we refer to the clause requiring the insurer‘s consent and

similar language as the ―Consent Provision.‖ We note that the Group Three policies, in contrast

to the Group Two policies, use the phrase ―assume charge of the settlement or defense . . . .‖

54

policies do not exempt the Excess Insurers from paying ―defense costs upon the

primary‘s exhaustion. The ‗associate‘ and ‗consent‘ clauses are otherwise silent as to

defense costs.‖159 The Superior Court held that while the Group Three policies ―clearly

state[ that] the insurer shall not incur an obligation without its consent, and that its

insurance does not cover costs provided by someone else, the policy does not ‗clearly and

unmistakably‘ exclude defense costs, especially after the primary‘s exhausted.‖160

Nevertheless, as to the Group Three policies, the Superior Court ultimately concluded

that they cover ―reasonable defense costs‖ within the policy‘s applicable limits.161

Warren contends that the Group Three policies contain independent language that

confirms the existence of a defense payment obligation and omit any language negating

their follow-form defense payment obligations. The Excess Insurers respond by arguing

that each of the Group Three policies ―explicitly provides that it does not cover defense

costs at all‖ and that the argument advanced by Warren is ―beside the point.‖162

159

Viking Pump III, 2013 WL 7098824, at *27.

160

Id. (citing Breed v. Ins. Co. of N. Am., 385 N.E.2d 1280, 1282 (N.Y. 1978)) (―Well

recognized is the general rule that ambiguities in an insurance policy are to be construed against

the insurer, particularly when found in an exclusionary clause.‖ (citation omitted))).

161

Id. at *28.

162

Excess Insurers Ans. Br. 49. The Excess Insurers argue that California Union Policy No.

ZCX003889 ―expressly disclaim[s] any duty to provide defense costs.‖ Excess Insurers Op. Br.

44, 44 n.10. That argument is undermined by the policy‘s terms, which provide:

[T]he Company shall not be obligated to assume charge of the settlement or

defense of any claim or suit brought or proceeding instituted against the insured,

but the Company shall have the right and be given the opportunity to associate

with the insured in the defense or control of any claim, suit or proceeding which

appears reasonably likely to involve the Company, in which event the insured and

the Company shall cooperate in all things in the defense or control of such claim,

suit or proceeding, but no obligation shall be incurred on behalf of the Company

without its consent first being obtained . . . .

55

The Consent Provisions in the Group Three policies modify the duty to defend,

making it a right or option to defend. These Excess Policies state that ―no obligation

shall be incurred on behalf of [the insurer] without its consent being first obtained . . . .‖

The Group Three policies, however, do not define the term ―obligation.‖ We believe

that, under New York law, an insurer‘s duty to pay defense costs and its duty to defend

are separate and distinct.163 A duty requiring an insurer to pay costs, including defense

costs, may properly be understood as an ―obligation.‖164 Ultimately, the Group Three

policies fail to exclude coverage for defense costs using clear and unmistakable language,

and follow form to the underlying Liberty policies.

The Group Three policies are silent with respect to whether payment of defense

costs erodes policy limits. This ambiguity is to be resolved against the insurer, and the

JA3622. The policy provides further that ―the insurance afforded by this Certificate shall [not]

apply to any expenses for which insurance is provided in the [primary] insurance . . . .‖ Id.

None of the foregoing policy language expressly disclaims the duty to pay defense costs. We

also reject the Excess Insurers‘ contention that INA Policy Nos. XCP145194 and XCP15652

expressly disclaim any duty to pay defense costs, as those policies employ provisions

functionally identical to those in California Union Policy No. ZCX003889. See JA4165;

JA4421.

163

See In re WorldCom, Inc. Sec. Litig., 354 F. Supp. at 464 n.11 (―In contrast to a duty to pay

defense costs, the duty to defend customarily includes an insurer‘s right to choose the attorney

and control the litigation strategy.‖ (citations omitted)). This Court has not identified—and the

parties do not cite—a decision of the New York Court of Appeals making plain that the duty to

defend and the duty to pay defense costs are two distinct obligations. We believe, however, that

the New York Court of Appeals, like the courts of other jurisdictions, would embrace this notion.

See, e.g., Stonewall, 73 F.3d at 1218 (applying Texas law). Regardless, the Excess Policies

generally follow form to the underlying Liberty umbrella policies, which policies contain distinct

duties to defend and to pay costs in separately numbered paragraphs. See, e.g., JA3721-22.

164

BLACK‘S LAW DICTIONARY (10th ed. 2014) (―obligation‖) (―1. A legal or moral duty to do or

not do something. . . . 2. A formal, binding agreement or acknowledgement of a liability to pay

a certain amount or to do a certain thing for a particular person or set of persons; esp., a duty

arising by contract.‖).

56

Group Three policies therefore incorporate the default follow-form duty to pay defense

costs as reflected in the underlying policies. Consequently, the Group Three policies pay

defense costs in addition to policy limits. But, as a result of the clause setting forth that

―no obligation shall be incurred on behalf of [the insurer] without its consent being first

obtained[,]‖165 the duties to defend and pay are made contingent upon consent.166

The Superior Court‘s conclusion that the Group Three policies have a duty to pay

defense costs is affirmed, but its decision that these payments erode policy limits is

reversed. Instead, we conclude that the Excess Insurers have a duty to pay defense costs,

contingent upon consent, and that such costs must be paid in addition to policy limits.

vi. The Group Four Policies Generally Exclude Defense Costs Except Upon Written

Consent of the Insurer

Each of the Group Four policies provides that the insurer will indemnify the

insured for the ―ultimate net loss‖ resulting from personal injuries.167 The relevant

provisions in the Group Four policies are substantially similar to the following:

165

See, e.g., JA4421.

166

See Stonewall, 73 F.3d at 1219.

167

The Group Four policies include Lexington Policy No. CE5504779 and London Policy Nos.

K25878; 881/UHL0395; 881/UKL0340; 881/UKL0341; and 881/UKL0342. As to the Coverage

Provisions in the Group Four policies, each such insurance contract employs substantially

identical language, with the exception of London Policy No. K25878. While the remaining

Group Four policies ―indemnify the Assured for ultimate net loss,‖ London Policy No. K25878

provides that the insurer will ―indemnify the Assured for all sums which the Assured shall be

obligated to pay by reason of the liability imposed upon the Assured by law, or assumed by the

Assured under contract for damages on account of: (a) Personal Injury Liability . . . .‖ JA2595.

The policy contains the same definitions of ―ultimate net loss‖ and ―costs‖ that appear in the

other Group Four policies. The parties do not argue that the analysis for Policy No. K25878

should differ from that applicable to the other Group Four policies. Accordingly, we treat it

within our analysis of the Group Four policies. Further, as set forth above, Lexington Policy No.

CE5503312 is also included among the Group Four policies. We also separately address

Lexington Policy No. CE5504779 below.

57

I. COVERAGE

Underwriters hereby agree, subject to the limitations, terms and conditions

hereinafter mentioned, to indemnify the Assured for ultimate net loss which

the Assured may sustain by reason of the liability imposed upon the

Assured by law, or assumed by the Assured under contract for damages on

account of: (a) Personal Injury Liability . . . Arising out of the hazards

covered by and as defined in the Underlying Umbrella Policies issued by

the Liberty Mutual Insurance Company, Underwriters at Lloyd‘s, London,

and certain Insurance Companies . . . .

II. LIMIT OF LIABILITY – UNDERLYING LIMITS

It is expressly agreed that liability shall attach to the Underwriters only

after the Underlying Umbrella Insurers have paid or have been held liable

to pay the full amount of their respective ultimate net loss liability . . . and

the Underwriters shall then be liable to pay only the excess thereof up to a

further [specified monetary sum] ultimate net loss in all in respect of each

occurrence – subject to a limit of [a specified monetary sum] in the

aggregate for each annual period during the currency of this Policy in

respect of each hazard insured with an aggregate limit in the Underlying

Umbrella Policies.

DEFINITIONS

1. ULTIMATE NET LOSS

The words ―ultimate net loss‖ shall be understood to mean the amount

payable in settlement of the liability of the Assured after making deductions

for all recoveries and for other valid and collectible insurances, excepting

however the policies of the Underlying Insurers, and shall exclude all

expenses and Costs.

2. COSTS

The word ―Costs‖ shall be understood to mean interest accruing after entry

of judgment, investigation, adjustment and legal expenses (excluding,

however, all office expenses of the Assured, all expenses for salaried

employees of the Assured and general retainer fees for counsel normally

paid by the Assured).

CONDITIONS

1. INCURRING OF COSTS

58

In the event of claim or claims arising which appear likely to exceed the

Underlying Limit, no Costs shall be incurred by the Assured without the

written consent of the Underwriters.

* * *

3. MAINTENANCE OF UNDERLYING UMBRELLA INSURANCE

This Policy is subject to the same terms, definitions, exclusions and

conditions (except as regards the premium, the amount and limits of

liability and except as otherwise provided herein) as are contained in or

may be added to the said Underlying Umbrella Policies prior to the

happening of an occurrence for which claim is made hereunder.

* * *

4. ASSISTANCE AND COOPERATION OF THE ASSURED

The Underwriters shall not be called upon to assume charge of the

settlement of defense of any claim made, suit brought or proceeding

instituted against the Assured but the Underwriters shall have the right and

shall be given the opportunity to associate with the Assured or the

Assured‘s underlying insurers, or both, in the defense and control of any

claim, suit or proceeding relative to an occurrence where the claim or suit

involves or appears reasonably likely to involve the Underwriters, in which

event, the Assured and the Underwriters shall cooperate in all things in the

defense of such claim, suit or proceeding.168

The Superior Court held that the Group Four policies require the Excess Insurers

to pay defense costs in addition to policy limits. The Excess Insurers raise two arguments

with respect to the Group Four policies. First, the Excess Insurers contend that the

Assistance Provisions give the insurer the right, but not the obligation, to assume the

168

See, e.g., JA3071-73. The Assistance Provisions in the Group Four policies only eliminate

the duty to defend, giving the insurer the option to join the defense of the insured. They do not

exclude the duty to pay defense costs. Accordingly, we also reject any argument that the

Assistance Provisions in the following policies disclaim responsibility to pay defense costs:

Lexington Policy No. 5510143; California Union Policy No. ZCX003889; International Policy

Nos. 5220113076, 5220282357, and 5220489339; and INA Policy Nos. XCP145194 and

XCP156562. See Excess Insurers Op. Br. 46.

59

defense. Second, the insurers assert that the Group Four policies define ―ultimate net

loss‖ to exclude all expenses and ―Costs‖ and that the policies define ―Costs‖ as ―interest

accruing after entry of judgment, investigation, adjustment and legal expenses . . . .‖

Warren urges that the Assistance Provisions do not negate the obligation to pay

defense costs, and that the duty to conduct the defense is separate and apart from the duty

to fund that defense. Further, Warren argues that both the jury and the Superior Court

correctly held that the Excess Policies that exclude costs or expenses from the definition

of ―ultimate net loss‖ or ―loss‖ do not negate the Excess Insurers‘ promise to follow form

to the Liberty defense payment obligation.

The Group Four policies state that they are ―subject to the same terms, definitions,

exclusions and conditions (except as regards the premium, the amount and limits of

liability and except as otherwise provided herein) as are contained in or as may be added

to the said Underlying Umbrella Policies . . . .‖169 They further provide that the Excess

Insurers are liable to pay only amounts in excess of the underlying insurers‘ ultimate net

loss liability ―up to a further [specified monetary sum] ultimate net loss in all in respect

of each occurrence – subject to a limit of [a specified monetary sum] in the aggregate for

each annual period during the currency of this Policy in respect of each hazard insured

with an aggregate limit in the Underlying Umbrella Policies.‖170 As previously observed,

the Group Four policies define the term ―ultimate net loss‖ to exclude expenses and

―[c]osts,‖ which, in turn, includes ―interest accruing after entry of judgment,

169

See, e.g., JA3073 (emphasis added).

170

See, e.g., JA3071.

60

investigation, adjustment and legal expenses (excluding, however, all office expenses of

the Assured, all expenses for salaried employees of the Assured and general retainer fees

for counsel normally paid by the Assured).‖171

The New York Court of Appeals has emphasized that when interpreting insurance

policies, a reviewing court ―must construe the policy in a way that affords a fair meaning

to all of the language employed by the parties in the contract and leaves no provision

without force and effect.‖172 Read as a whole and giving effect to the Maintenance and

Limit of Liability Provisions,173 the Group Four policies use the term ―ultimate net loss‖

to mean that the insurer is liable to the insured only for those losses that fall within the

definition of ―ultimate net loss.‖174 And ―ultimate net loss‖ unambiguously excludes

defense costs from the insurer‘s indemnity obligations.175 We conclude that these

171

See, e.g., JA3072 (emphasis added).

172

Viking Pump V, 52 N.E.3d at 1151 (quoting Roman Catholic Diocese of Brooklyn v. Nat’l

Union Fire Ins. Co. of Pittsburgh, Pa., 991 N.E.2d 666, 671-72 (N.Y. 2013)) (internal quotation

marks omitted).

173

See Home Ins., 902 F.2d at 1113 (―As the plain language of the [second-level excess] policy

makes clear, however, the [second-level excess] policy follows the terms of the [first-level]

excess policy only to the extent that the [first-level] policy is consistent with the [second-level]

policy. The [second-level excess] policy states that it is ‗subject to the same warranties, terms

and conditions (except as otherwise provided herein) as are contained in . . . the [u]nderlying

[c]overage . . . .‖ (emphasis in original) (alterations in original and added)).

174

Maryland Cas. Co. v. W.R. Grace & Co., 1996 WL 306372, at *9 (S.D.N.Y. June 7, 1996).

175

Home Ins., 902 F.2d at 1113-14; see also Stonewall, 73 F.3d at 1218 (―The original insuring

agreement required the insurers to indemnify [the insured‘s] ‗ultimate net loss,‘ including

damages and expenses that [the insured] became obligated to pay. The ‗New York Amendatory

Endorsement‘ amended the definition of ‗ultimate net loss‘ in the insuring agreement by deleting

the reference to ‗expenses.‘ Notwithstanding [the insured‘s] efforts in the District Court and on

appeal to rely on the legislative history of the New York Amendatory Endorsement, the District

Court properly found that the term ‗ultimate net loss,‘ as amended, unambiguously includes only

damages and not defense costs.‖ (citing Home Ins., 902 F.2d at 1113-14)).

In Home Insurance, the United States Court of Appeals examined policy language similar

to that of the Group Four policies. There, a second-level excess insurer provided insurance for

61

policies exclude an obligation to pay defense costs, except upon written consent. In so

holding, we give effect to the express differences in the defined term ―ultimate net

loss[,]‖ which excludes expenses and costs. These differences lead to a different

outcome from policies that do not define the term ―ultimate net loss.‖

The Group Four policies generally follow form to the underlying insurance and are

silent as to whether defense costs incurred with consent of the insurer erode policy limits.

This ambiguity is to be resolved against the insurers.176 The policies pay defense costs in

addition to policy limits, but only upon written consent of the insurers. The Superior

Court‘s conclusion that the Group Four policies provide coverage for defense costs is

reversed.

vii. The International Policies Cover Defense Costs in Addition to Policy Limits, with

Consent of the Insurer

The Excess Insurers challenge the Superior Court‘s ruling in its second post-trial

decision regarding three Excess Policies issued by the International Insurance Company

―bodily injury in excess of that provided by the [first-level] excess policy, up to $11.5 million

ultimate net loss. ‗Ultimate net loss‘ [wa]s defined under the policy as ‗the amount payable in

settlement of the liability of [the insured] . . . exclud[ing] all expenses and Costs.‘‖ Home Ins.,

902 F.2d at 1113 (emphasis in original) (alterations in original and added). Further, ―Costs‖ was

defined as ―interest accruing after entry of judgment, investigation, adjustment and legal

expenses (excluding, however, all office expenses of [the insured], all expenses for salaried

employees of [the insured] and general retainer fees for counsel normally paid by [the insured]).‖

Id. (internal quotation marks omitted). The Court of Appeals for the Second Circuit agreed with

the insurer‘s ―interpretation that post-judgment interest and legal expenses (in particular outside

counsel fees) [we]re excluded under the plain language of the policy.‖ Id. at 1114.

176

See Stonewall, 73 F.3d at 1216-17 (―Stonewall‘s policies are silent on the consequences of

cancellation, making this another ambiguity to be resolved against the insurer.‖ (citations

omitted)).

62

(the ―International Policies‖).177 The International Policies ―apply in like manner as the

underlying insurance,‖ ―except with respect to . . . any obligation to investigate or defend

any claim or suit[.]‖178 The three policies also contain Assistance Provisions, which

provide:

The company shall not be called upon to assume charge of the settlement or

defense of any claim made or proceeding instituted against the insured; but

the company shall have the right and opportunity to associate with the

insured in the defense and control of any claim or proceeding reasonably

likely to involve the company. In such event the insured and the company

shall cooperate fully.179

Further, two of the policies180 expressly contemplate the treatment of legal expenses:

Loss and legal expenses incurred by the insured with the consent of the

company in the investigation or defense of claims, including court costs and

interest, shall be borne by both the company and the insured in the

proportion that each party‘s share of loss bears to the total amount of such

loss. . . . Expenses thus paid by the company shall be paid in addition to

the limit of liability . . . .181

The Superior Court held that the International Policies ―provide full defense

obligations in addition to policy limits.‖182 Two of the policies,183 the court concluded,

follow form by endorsement.184 The trial court observed that the third policy185 did ―not

177

The three policies include International Policy Nos. 5220113076, 5220282357, and

5220489339. The Superior Court inadvertently omitted addressing the International Policies in

its October 31, 2013 decision. See Viking Pump IV, 2014 WL 1305003, at *2.

178

See, e.g., JA4429.

179

See, e.g., JA4429.

180

International Policy Nos. 5220113076 and 5220282357.

181

See JA4000; JA4117. The third International Policy employs a Loss Expense Endorsement

that conforms its treatment of legal expenses to the provisions in the two follow-form

International Policies. Compare JA4000, and JA4117, with JA4433.

182

Viking Pump IV, 2014 WL 1305003, at *3.

183

International Policy Nos. 5220113076 and 5220282357.

184

Viking Pump IV, 2014 WL 1305003, at *3. The endorsements provide: ―Notwithstanding

anything contained herein to the contrary, it is understood and agreed that this Insurance covers

63

include a follow-form endorsement,‖186 but maintained a ―Loss Expense Endorsement‖

providing that ―[l]oss expense includes . . . legal expenses incurred by the Insured with

the consent of the company in the investigation or defense of claims, including court

costs and interest. . . . Expenses thus paid by the company shall be paid in addition to the

limit of liability . . . .‖187

The Excess Insurers contend that the International Policies ―expressly except

defense payments by providing: ‗except with respect to (1) any obligation to investigate

or defend any claim or suit . . . the insurance afforded by this policy shall apply in like

manner as the underlying insurance . . . .‘‖188 Further, the Excess Insurers assert that to

the extent that the International Policies are found to be obligated to pay defense, any

such obligation should be subject to aggregate limits because that is how the Superior

Court adjudicated the defense obligations of the other policies containing ―Assistance and

Cooperation with Consent‖ language.189 Warren responds by arguing that each of the

International Policies either adopts the Liberty defense obligation or sets forth an express

promise to pay defense costs.

In the context of the International Policies, the Assistance Provision eliminates any

obligation to ―assume charge‖ of the defense. The clause fails to exclude the duty to pay

the same Named Assured and is subject to the same terms, definitions, exclusions and conditions

(except as regards the premium and the amount and limits of liability) as are contained in or may

be added to the first layer Umbrella of the Liberty Mutual Insurance Company Policy No. To Be

Advised.‖ See JA4005; JA4120.

185

International Policy No. 5220489339.

186

Viking Pump IV, 2014 WL 1305003, at *3.

187

JA4433.

188

Excess Insurers Op. Br. 45 (emphasis removed) (citations omitted).

189

Id. at 46 n.11 (citation omitted).

64

defense costs. But the clauses contemplating the treatment of expenses in two of the

International Policies and the Loss Expense Endorsement to the third do address payment

of legal expenses. These provisions contemplate the payment of defense costs contingent

upon ―consent of the [insurer] . . . .‖190 Thus, provided the insurer consents to the

incurrence of expenses, it is obligated to pay defense costs in addition to the policy limits.

The Superior Court‘s conclusion that the International Policies pay defense costs

in addition to policy limits is affirmed, but payment is contingent upon consent.

viii. Lexington Policy No. CE5504779 Generally Excludes Defense Costs, Except

Those Jointly Incurred by Mutual Consent

Pursuant to Lexington Policy No. CE5504779, the insurer ―agree[d] to indemnify

the insured, in accordance with the applicable insuring agreements of the Primary

Insurance, against loss subject to the limits stated [in the declarations].‖191 Under

Lexington Policy No. CE5504779, the term ―primary insurance‖ means ―the policy

(policies) described in Item 4.‖192 Item 4, in turn, states that the primary insurance is

―Liberty Mutual, Policy Number To Be Agreed.‖193 Further, under the insurance

contract, ―loss‖ is defined as follows:

The word ―loss‖ shall be understood to mean the sums paid in settlements

of losses for which the insured is liable after making deductions for all

other recoveries, salvages and other insurences (other than recoveries under

the policy/ies of the Primary Insurer), whether recoverable or not, and shall

exclude all expense and costs.194

190

See, e.g., JA4000.

191

JA2906.

192

JA2906.

193

JA2905.

194

JA2906 (emphasis added).

65

―Costs‖ is also defined by the policy:

The word ―costs‖ shall be understood to mean interest on judgments,

investigations, adjustment and legal expenses (excluding, however, all

expense for salaried employees and retained counsel of and all office

expense of the insured).195

Lexington Policy No. CE5504779 also contains a section setting forth the

conditions of the insurance contract. In relevant part, the conditions set forth in the

policy are as follows:

1. It is agreed that this policy, except as herein stated, is subject to all

conditions, agreements and limitations of and shall follow the Primary

Insurance in all respects, including changes by endorsement . . . .

2. Notice of any accident, which appears likely to involve this policy, shall

be given to the [insurer], which at its own option, may, but is not

required to, participate in the investigation, settlement or defense of any

claim or suit. In the event expense and/or costs in connection with any

claim or suit is incurred jointly by mutual consent of the [insurer] and

of the Insured or Primary Insurer, the [insurer], in addition to its limits

of liability as expressed in Item 6, Section 1 of the Declarations, shall

be liable for no greater proportion of such expense and/or costs than

the amount payable by the [insurer] under this Policy bears to the total

loss payment.196

Attached to Lexington Policy No. CE5504779 is a ―Following Form Clause‖

endorsement, which provides that it ―is subject to the exclusions, conditions and other

terms of Policy Number to be advised issued by Lloyds [sic] Underwriters.‖197 The

endorsement continues by stating that ―this insurance differs from the policy which it

follows in the following particulars and any other amendments attaching to and forming

195

JA2906 (emphasis added).

196

JA2913 (emphasis added).

197

JA2911.

66

part of the undermentioned policy number.‖198 The Following Form Clause endorsement

then provides that Lexington Policy No. CE5504779 differs from the policy to which it

follows form with respect to notices of occurrences and cancellation of the policy.199

Lexington Policy No. CE5504779 does not, on its face, identify the specific

Lloyd‘s policy to which it follows form. Warren urges, however, that Lexington Policy

No. CE5504779 contains a ―typewritten endorsement[] that conform[s]‖ its language to

that of another Excess Policy that the Superior Court held provides coverage for defense

costs.200 Warren then asserts in a footnote that ―Lexington Policy [N]o. CE5504779 and

Lloyd‘s/London Policy [N]o. 881/UGL0160 . . . cover the same time period at the same

attachment point and participate in a ‗quota-sharing‘ arrangement pursuant to which

those policies contribute stated percentages to the same covered losses.‖201 The Excess

Insurers do not address Warren‘s follow-form contentions regarding the Lloyd‘s policy.

It does not appear to this Court, based upon the record before us, that Warren raised this

argument below.202 In any event, the argument was not addressed by the Superior Court.

Thus, this Court is left with a follow-form argument that has only been obliquely raised

on appeal by one party, has not been addressed by the Excess Insurers, and was not

considered by the Superior Court. Under these circumstances, and given the complexities

198

JA2911.

199

JA2911.

200

Warren Ans. Br. 49.

201

Warren Ans. Br. 49 n.42 (citations omitted). On appeal, the sum total of the argument

regarding the degree to which Lexington Policy No. CE5504779 follows form to London Policy

No. 881/UGL0160 is a sentence within a footnote of Warren‘s Answering Brief.

202

See Del. Supr. Ct. R. 8 (―Only questions fairly presented to the trial court may be presented

for review; provided, however, that when the interests of justice so require, the Court may

consider and determine any question not so presented.‖).

67

that arise from attempting to discern which provisions of the unspecified Lloyd‘s policy

might apply, it would be hazardous for this Court to rule in the first instance on which

Lloyd‘s policy is being referred to and the impact of any provision that might arguably

conflict with the Lexington policy. Instead, we conclude that this issue has not been

adequately raised on appeal and has been waived.

Thus, we turn to the terms of Lexington Policy No. CE5504779. The Superior

Court incorporated the policy in its holding with respect to the Group Four policies. The

trial court held that the policy follows form to the underlying insurance, carries full

defense obligations, and pays defense costs in addition to policy limits.203 The Excess

Insurers argue that Lexington has no duty to pay defense costs under the insurance

contract. They also contend that, under New York law, there is no obligation to pay

defense costs when a policy excludes expenses and costs from the term ―loss.‖

Because Lexington Policy No. CE5504779 provides indemnification for ―loss

subject to the limits stated [in the declarations],‖ the definition of ―loss‖ ―exclude[s] all

expense and costs,‖ and ―costs‖ includes ―interest on judgments, investigations,

adjustment and legal expenses (excluding, however, all expense for salaried employees

and retained counsel of and all office expense of the insured),‖204 we conclude that the

insurer is liable to the insured only for ―loss,‖ which unambiguously excludes defense

costs. Further, Lexington Policy No. CE5504779 is silent with respect to whether

payment of defense costs erodes policy limits. This ambiguity is to be resolved in favor

203

Viking Pump III, 2013 WL 7098824, at *29.

204

JA2906.

68

of the insured. Thus, where expenses or costs in connection with any claim or suit are

incurred jointly by mutual consent of the insurer205 and of the insured or underlying

insurer, defense costs incurred are paid in addition to policy limits. But where mutual

consent of the insurer and of the insured or underlying insurer has not been obtained,

Lexington Policy No. CE5504779 does not provide coverage for defense costs. The

Superior Court‘s conclusion that Lexington Policy No. CE5504779 covers defense costs

in addition to policy limits is reversed.

ix. Lexington Policy No. 5510143 Generally Excludes Defense Costs Except Upon

Consent

As to Lexington Policy No. 5510143, Warren argues that the Superior Court erred

particularly in holding that it provides for the payment of defense costs within limits,

because that policy, by endorsement, expressly follows form to another excess policy that

the Superior Court held does provide for the payment of defense costs in addition to the

policy limits. Warren contends that the specific policy to which the Lexington policy

follows form is London Policy No. UKL0340. The Excess Insurers argue that to the

extent Lexington Policy No. 5510143 follows form to London Policy No. UKL0340, it

provides no defense cost coverage.

The Superior Court did not address the issue of the policy to which Lexington

Policy No. 5510143 follows form.206 London Policy No. UKL0340 is a Group Four

205

Compare Stonewall, 73 F.3d at 1219 (―The consent provision does not require the insurer to

indemnify [the insured] for defense costs unless the parties mutually agree beforehand to this

arrangement.‖).

206

Unlike Lexington Policy No. CE5504779, there appears to be no dispute as to the policy to

which Lexington Policy No. 5510143 follows form. See Excess Insurers Ans. Br. 49 n.10.

69

policy that generally excludes defense costs except upon the written consent of the

insurer. Because Lexington Policy No. 5510143 follows form to London Policy No.

UKL0340 and otherwise protects against ―loss‖ while defining ―loss‖ to exclude all

expenses and costs, this Lexington policy excludes coverage for defense costs. In the

event that the insurer consents, however, the insurer must pay ―expenses incurred by the

[i]nsured with the approval of the [insurer].‖207 Lexington Policy No. 5510143 is silent

with respect to whether payment of defense costs erodes policy limits. This ambiguity is

to be resolved against the insurer, and the policy thus pays defense costs incurred by the

insured with the ―approval‖ of the insurer in addition to policy limits.

The Superior Court‘s conclusion that Lexington Policy No. 5510143 pays defense

costs within policy limits is reversed.

4. Conclusion

To summarize our holding concerning defense costs, we agree with the Superior

Court that Liberty has defense obligations under its umbrella policies in addition to

policy limits. We also agree with the Superior Court‘s conclusions that the Group One

and Group Two policies pay defense costs within policy limits. However, our reasoning

with respect to the Group One policies differs based on the language of the policy, and

we reclassify Lexington Policy No. CE5503312 within Group Four instead of Group

One. In addition, we agree that the International Policies pay defense costs in addition to

policy limits, although we conclude that such payments are contingent on consent. These

portions of the Superior Court‘s decision are affirmed.

207

JA3372.

70

We reverse in part the Superior Court‘s decision with respect to the Group Three

policies. Although we agree that the Group Three policies have a duty to pay defense

costs contingent on the insurer‘s consent, we conclude that such payments do not erode

policy limits. Additionally, we reclassify Lexington Policy No. 5510143 to Group Four

rather than Group Three.

Finally, the Superior Court‘s decisions with respect to the Group Four policies and

Lexington Policy Nos. CE5504779 and 5510143 are reversed.

D. The Superior Court Erred With Respect to the Trigger of Coverage

1. Contentions of the Parties

Warren contends that the Superior Court erred as a matter of law in paragraph 9 of

the Final Judgment, which states:

As to a person who ultimately develops lung cancer, mesothelioma or non-

malignant asbestos-related disease, bodily injury first occurs, for policy

purposes, upon cellular and molecular damage caused by asbestos

inhalation, and such cellular and molecular damage occurs during each and

every period of asbestos claimant‘s significant exposure to asbestos. The

duty to defend is based on the possibility of coverage, reflected in the

pleadings‘ allegations. The duty to indemnify derives from whether the

basis for Warren or Viking‘s liability to the injured claimant is actually

covered by the policy.208

Warren contends that this language suggests that the Excess Policies are triggered

not by injury during the policy period, but only by injury during the period of significant

exposure. Warren claims that this language fundamentally alters and eviscerates the

jury‘s verdict and effectively eliminates much of the coverage for Warren‘s claims.209

208

Final Judgment at JA1868.

209

Viking has taken no position with respect to Warren‘s filings on the trigger of coverage issue.

71

Warren claims that the Superior Court then compounded its error by denying

Warren‘s motion for clarification and refusing to amend the Judgment to provide that all

Excess Policies from the first significant exposure until diagnoses are triggered. The

Superior Court justified its denials on the grounds that (i) Warren‘s suggested language

would have been inconsistent with an ―injury-in-fact‖ trigger; and (ii) the trial had

focused solely on when injury first takes place—as opposed to how it proceeds. Warren

contends that both conclusions constitute reversible error.

The Excess Insurers contend that the jury was asked to decide only one aspect of

trigger, namely, whether initial cellular or molecular damage was ‗bodily injury‘ within

the meaning of the policies. The jury concluded it was. They contend that the jury did

not decide whether that or any other injury continued over multiple policy periods

because Warren and Viking elected not to submit that issue to the jury. The Excess

Insurers maintain that Warren and Viking instead elected to address the timing and

duration of injury post-trial and sought a ruling from the Superior Court that bodily injury

occurred at the time of significant exposure and continued uninterrupted through disease

diagnoses. The Superior Court agreed that bodily injury occurred at the time of

significant exposure but twice rejected Warren‘s request to find that bodily injury

continued through disease diagnoses. The Excess Insurers argue that the Superior

Court‘s finding is supported by the medical testimony at trial and was not an abuse of

discretion or clear error.

2. Standard of Review

72

The proper interpretation and construction of an insurance contract is subject to de

novo review.210 We will defer to the Superior Court‘s findings of fact ―if substantial

evidence supports them and they are not clearly wrong.‖211

3. Relevant Procedural Background

Throughout the pre-trial proceedings, Warren urged that bodily injury occurs upon

significant exposure to asbestos and continues thereafter. For example, at the September

12, 2012 Pre-Trial Conference, Warren‘s counsel stated that its medical expert would

opine that ―injury begins on the date of first exposure all the way up to [the] date of the

claim.‖212 Warren‘s proposed jury verdict form asked the jury to find that bodily injury

takes place at or soon after significant exposure and ―continues thereafter.‖213 The

Superior Court rejected this approach.

The Excess Insurers‘ position at trial was that bodily injury first occurred when the

first malignant cell was formed. However, the Excess Insurers did not offer their own

expert on the development of asbestos-related cancers, which represented the vast

majority of Warren‘s costs. Instead, they proffered Dr. David Weill, who testified as to

―the timing and mechanism of how nonmalignant disease [specifically, asbestosis] occurs

in the human lungs.‖214 Warren, meanwhile, maintained its position that bodily injury

first occurred upon the first significant exposure to asbestos. In support of this position,

Warren and Viking presented the testimony of Dr. Edward Gabrielson, who testified

210

See Phillips Home Builders, 700 A.2d at 129 (citation omitted).

211

Bay City, Inc. v. Williams, 2 A.3d 1060, 1061-62 (Del. 2010) (citations omitted).

212

JA1094 (Tr. 20:12-14).

213

WA579.

214

WA518 (Tr. 51:18-22).

73

concerning the progression of the disease, beginning with cellular changes at the time of

initial inhalation.215

At oral argument before this Court, the Excess Insurers acknowledged that, during

the trial phase, they had agreed that once bodily injury (consisting, in their view, of

formation of a malignant cell) commenced, it continued. Similarly, the plaintiffs‘

position at trial was that once bodily injury (consisting of significant exposure to

asbestos) occurred, it continued thereafter. Thus, although the opposing parties had

different starting points as to when bodily injury first occurred, both agreed that, as to

their respective starting point, the injury continued thereafter. The parties also accepted

on appeal that if a claimant had significant exposure, then there was bodily injury to

which the policies would have to respond.

The jury instructions were based upon the Excess Insurers‘ suggested language,

since the Superior Court had rejected the plaintiffs‘ version. These instructions told the

jury that, by resolving the question of when the first injury occurred, the jury would

resolve the trigger issue as a whole:

For an underlying claim to be covered, Plaintiffs must show by a

preponderance of the evidence that the claimant suffered “bodily injury”

during the policy period of an Excess Policy.

Specifically, you must decide whether, with respect to non-malignancy[,]

asbestos-related bodily injury first occurs:

1. upon cellular or molecular damage caused by asbestos inhalation; OR

2. when the inhalation of asbestos is sufficient to overwhelm the bodies‘

defense mechanisms and cause fibrosis; OR

215

WA390-391.

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