Record and brief — LIBERTY MUTUAL INSURANCE COMPANY v. KEENE CORPORATION (Nos. 81-1328, 81-1012, 81-1197, 81-1298)
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81-1328 ~ bites
15 1982
Supreme Court of the United St ——
OCTOBER TERM, 1981
LIBERTY MUTUAL INSURANCE COMPANY,
7 Petitioner,
KEENE CORPORATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
GERALD V. WEIGLE, JR.*
JOHN D. LUKEN
DINSMORE, SHOHL, COATES
& DEUPREE
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
* Counsel of Record for
Petitioner
FRANK W. GAINES, JR.
RoBerT L. HOEGLE
OLWINE, CONNELLY, CHASE,
O’DONNELL & WEYHER
Suite 890
1850 K Street, N.W.
Washington, D.C. 20006
(202) 659-4871
CHRISTOPHER C. MANSFIELD
Liberty Mutual Insurance
Company
175 Berkeley Street
Boston, Massachusetts 02117
(617) 857-9500
January 15, 1982
— — — — ts
WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED FOR REVIEW
1. Contrary to this Court’s opinion in Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938), the court below rewrote
state law as to the burden of proof and scope of cover-
age in insurance contracts. It did so in conflict with
every other federal court which has ruled upon these is-
sues, including two of the other circuits; and it has cre-
ated a three-way split in the federal decisions as to who
must defend the largest block of product liability litiga-
tion in American history. With thousands of cases al-
ready pending in the federal courts and the prospect of
many thousands more as to asbestos and other products,
the important questions presented may be variously
phrased thus:
(a) Can a federal court reverse established principles
of state substantive law in order to “maximize”
insurance coverage?
(b) Is a lower court free to ignore its Erie obliga-
tions because asbestos litigation is different from
other kinds of litigation? Can it rewrite well-
established law on burden of proof and scope of
insurance coverage to reach a social goal believed
desirable?
(c) If the Erie doctrine still has life, can a federal
diversity court refuse to follow decisions of state
courts, other than the highest court in a state,
when the decisions specifically support the “mani-
festation” construction of insurance contracts?
Can it do so on the theory that resort to state de-
cisions is “unnecessary” if the highest state court
has not specifically addressed the precise question?
2. With thousands of asbestos cases already in the
federal courts and the certainty that thousands more will
be filed as to asbestos and other products, with a split in
circuits and with the lower federal courts in hopeless
confusion :
(i)
ii
(a) Has not the court below “so far departed from
the accepted and usual course of judicial pro-
ceedings . . . as to call for an exercise of this
court’s power of supervision” under Rule 17(a)?
(b) Should not this court resolve the conflict when:
(i) The general principles of state law are clear
and do not differ from one state to another;
(ii) The federal circuits bound by Erie to follow
those principles have reached irreconcilable
results; and
(iii) The administration of justice in federal
courts throughout the country will suffer
gravely because of the disarray?
LIST OF PARTIES
Petitioner Liberty Mutual Insurance Company (“Lib-
erty’) was a defendant in the district court and an
appellee and cross-appellant in the District of Columbia
Circuit. Respondent Keene Corporation (“Keene”) was
the plaintiff in the district court and an appellant and
cross-appellee in the District of Columbia Circuit. There
were four additional defendants in the district court:
Insurance Company of North America (“INA”), Aetna
Casualty & Surety Company (“Aetna”), Hartford Acci-
dent & Indemnity Company (“Hartford”), and Pennsyl-
vania Manufacturers’ Association Insurance Company
(“PMA”). INA and Aetna were appellees and cross-
appellants in the court of appeals; Hartford was an
appellee. The district court granted summary judgment
dismissing PMA from the case, and that dismissal was
the subject of a separate appeal to the District of Colum-
bia Circuit.
The Rule 28.1 list of corporations affiliated with Peti-
tioner Liberty Mutual Insurance Company is as follows:
Liberty International Agency, Inc., Liberty Life Assur-
ance Co. of Boston, Liberty Mutual Insurance (Massa-
chusetts) Limited, and Liberty Mutual Fire Insurance
Co.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...............
LIST OF PARTIES —
TABLE OF CONTENTS
TABLE OF CASES
TABLE OF OTHER AUTHORITIES
—— ß «4
— CT cetettnesecternetessennenstomeremmmimmnenmnanennsemes
JURISDICTION OF THIS COURT
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED .........................-...
STATEMENT OF THE CASE
e
B. THE DECISION BELOW AND THE CON-
FLICT IN THE FEDERAL DECISIONS
REASONS THE WRIT SHOULD BE GRANTED......
A. THE COURT OF APPEALS COMPLETELY
DISREGARDED ITS OBLIGATIONS UNDER
ERIE TO CONFORM ITS OPINION TO IN-
SURANCE LAW PRINCIPLES THAT HAVE
LONG BEEN WELL ESTABLISHED UNDER
THE GOVERNING STATE LAN
1. The Court of Appeals Improperly Reversed
e
2. The Court Impermissibly Refused To Fol-
low the “Ordinary Meaning” Rule Followed
By The New York Courts
(iii)
iii
vii
10
12
12
16
iv
TABLE OF CONTENTS—Continued
Page
3. The Court Improperly Ignored New York
Precedent Which Directly Supports The
Manifestation Position 19
B. EVEN IF EXPOSURE IS THE TRIGGER OF
COVERAGE, THE COURT BELOW ERRED
IN REFUSING TO HOLD THAT THE IN-
SURED IS RESPONSIBLE FOR INJURIES
ATTRIBUTABLE TO EXPOSURES WHEN IT
HAD NO INSURANCE .... 21
C. IF THE OPINION BELOW IS PERMITTED
TO STAND, IT WILL GEOMETRICALLY IN-
CREASE THE CONFUSION, DELAY, AND
EXPENSE WHICH ALREADY CHARAC-
TERIZE THE ASBESTOS LITIGATION
IMBROGLIO 24
CONCLUSION — 27
*
TABLE OF CASES
Page
Allstate Insurance Co. v. Hague, 449 U.S. 302,
C 12
American Motorists Insurunce Company v. E. R.
Squibb & Sons, Inc., 95 Misc. 2d 222, 406 N. V. S.
X... ee 11, 20, 21
Barlow v. Prudential Insurance Co. of America,
17 Misc. 2d 864, 187 N.Y.S.2d 231, 232 (1959).. 15
Berwind v. Greenwich Insurance Co., 114 N.Y. 231,
21 N.E. 151 (1889), reargument denied, 21 N.E.
K» 3 15
Bogardus v. United States Fidelity & Guaranty Co.,
269 A.D. 615, 58 N.Y.S.2d 217, 222 (1945)........ 14
Breed v. Insurance Co. of North America, 46 N.Y.
2d 351, 356, 385 N.E.2d 1280, 413 N.Y.S.2d 352,
ͤ— 0 19
Burns v. Employers’ Liability Assurance Corp.,
134 Ohio St. 222, 16 N. E. 2d 316, 321 (1938) ...... 17
Carles v. Travelers Indemnity Company, 238 A.D.
43, 263 N. V. S. 29, 31 (1933), reargument denied,
239 A.D. 814, 263 N. V. S. 976 (1933) 14
Cities Service Oil Co. v. Dunlap, 308 U. 8. 208, 212
»»» . . nea 13, 15
Commissioner v. Estate of Bosch, 387 U.S. 456,
1 . 0 21
Day and Zimmerman, Inc. v. Challoner, 423 U.S.
ö ATA 16
Diek v. New York Life Insurance Co., 359 U.S.
ee a eee 13, 15
Eagle-Picher Industries, Inc. v. Liberty Mutual In-
surance Company, 523 F. Supp. 110 (D. Mass.
1981), appeals docketed Nos. 81-1761/62/63 (1st
Cir. September 25, 19817)))7))))) passim
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) .. passim
Fireman’s Fund Insurance Co. v. Videfreeze Corp..
540 F.2d 1171, 1176 (3d Cir 1976), cert. denied,
re . eve 13
Good friend v. American Credit Indemnity Co., 217
A. D. 635, 217 N. V. S. 162, 165, aff’d 244 N. V.
I . 15
Green v. Globe & Rutgers Fire Insurance Co., 200
A. D. 343, 192 N. V. S. 770, 771 (1922 15
vi
TABLE OF CASES—Continued
Page
Hallas v. North River Insurance Co. of New York,
279 A.D. 15, 107 N.Y.S.2d 359, 360 (1951), aff’d
mem, 304 N.Y. 671, 107 N.E.2d 592 (1952) 15
Hanna v. Plumer, 380 U.S. 460, 468 (1965) 15
Hardy v. Johns-Manville Sales Corp., 509 F. Supp.
i eee 27
Home Insurance Co. v. Dick, 482 U.S. 397, 408
RCE oe a 12
In re National City Bank of New York, 274 N.Y.
DE, T— 15
Insurance Company of North America v. Forty-
Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.
1980), modified and affirmed, 657 F.2d 814 (6th
Cir. 1981), cert. denied, 50 U.S.L.W. 3466 (De-
cember 7, 1981) (Nos. 81-198 and 81-1999 passim
Johnson v. Travelers Insurance Co., 269 N.Y. 401,
KE 16
King v. Order of Travelers, 333 U.S. 153 (1948) 21
Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S.
e wenn 16
Lavine v. Indemnity Insurance Company, 260 N.Y.
399, 410, 183 N.E. 897 (1988) .............................. 14
Lee v. Guardian Life of America, 46 N.Y.S.2d 241,
245 (1944), aff'd, 267 A.D. 985, 48 N.Y.S.2d
800, appeal denied, 268 A.D. 849, 50 N.Y.S.2d
c 17
Lewis v. Ocean Accident & Guaranty Co., 224 N.Y.
18, 21, 120 N. E. 56, 57 (1918) ............................. 16, 20
Lincoln National Life Insurance Company v. Erick-
son, 42 F.2d 997, 1001 (8th Cir. 1930) 17
Migues v. Fibreboard Corp., et al., No. 80-1994
(5th Cir., December 7, 1981) 27
Palmer v. Hoffman, 318 U.S. 109, 117 (1943)........ 13, 15
Plotkin v. Disability & Casualty Inter-Insurance
Exchange, 27 A.D.2d 719, 277 N.Y.S.2d 464,
rer 14
Porter v. American Optical Corporation, 641 F.2d
1128 (5th Cir. 1981), cert. denied, 50 U.S.L.W.
3466 (December 7, 1981) (No. 81-200) passim
vii
TABLE OF CASES—Continued
Page
Re Penna’s Estate, 160 Misc. 525, 290 N.Y.S. 200,
203 (1936), rev’d on other grounds, 250 A.D.
719, 293 N. V. S. 73, aff d sub nom. In re Na-
tional City Bank, 274 N.Y. 600, 10 N.E. 2d 571
133 15
Regan v. National Postal Transport Association,
53 Misc. 2d 901, 280 N. V. S. 2d 319, 327 (1967) 14
Rehm v. Interstate Motor Freight System, 333
F.2d 154, 157 (6th Cir. 1943) 18
Reiser v. Metropolitan Life Insurance Co., 262
A.D. 171, 28 N.Y.S.2d 283, 286 (1941), aff’d
mem., 298 N.Y. 561, 43 N.E. 2d 534 (1942) 11. 19
Ruhlin v. New York Life Insurance Co., 304 U.S.
. 27, 28
Silverstein v. Metropolitan Life Ins. Co., 254 N.Y.
. ee 12
State Farm Mutual Automobile Insurance Co. v.
Westlake, 35 N.Y.2d 587, 364 N.Y.S.2d 482,
. ee 16
United Sponging Co. v. Preferred Accident Insur-
ance Co., 97 Misc. 396, 161 N.Y.S. 309, 311
(1916), aff'd mem. 179 A.D. 884, 165 N. V. S.
I . 15
Wenger v. Mutual Benefit Health & Accident As-
sociation, 203 N.Y.S.2d 946, 947 (1960) 20
West v. American Telephone & Telegraph Co., 311
RE FO ees 21
Whitlatch v. Fidelity & Casualty Co., 149 N.Y. 45,
51, 43 N. E. 405 (1898) 14
Wright v. American Home Assurance Co., 488 F. 2d
e 17
TABLE OF OTHER AUTHORITIES
“Asbestos Injury Suits Mount, With Broad Busi-
ness Impact,” New York Times, July 3, 1981......
Boston Herald American, September 13, 1981........
Business Week, April 13, 1981, at 166, 169
Constitution of the United States, Amendment 10..
Constitution of the United States, Article III, § 2..
28 U.S.C. § 1254(1) ................
28 U.S. C. § 1332
28 U.S.C. § 1652
de & te te te 0 Sa
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
No. ——
LIBERTY MUTUAL INSURANCE COMPANY,
7 Petitioner,
KEENE CORPORATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioner Liberty Mutual Insurance Company respect-
fully prays that a writ of certiorari issue to review the
opinion and judgment of the United States Court of
Appeals for the District of Columbia Circuit entered on
October 1, 1981.
OPINIONS BELOW
The opinion and judgment of the United States Court
of Appeals for the District of Columbia Circuit appears
in Appendix A of the Petition for a Writ of Certiorari
filed by INA in No. 81-1012, which arises out of the same
ease as this Petition. That opinion is not yet reported.
The opinion and judgment of the United States District
Court for the District of Columbia appears in Appendix
B of INA’s Appendix (“INA App.” hereafter), and is
reported at 513 F. Supp. 47.
JURISDICTION OF THIS COURT
The opinion and judgment of the District of Columbia
Circuit was entered on October 1, 1981. INA App. at
2a. On November 19, 1981, petitions for rehearing and
suggestions for rehearing en banc were denied. INA
App. at 46a-49a. Jurisdiction to review the judgment
below is invoked pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Amendment 10 to the Constitution of the United States
provides:
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the
people.
The diversity clause of Article III, § 2, of the Constitu-
tion of the United States provides:
The Judicial Power shall extend to all Cases, in Law
and Equity . . .—between Citizens of different
States.
The Rules of Decision Act, 28 U.S.C. § 1652, provides:
The laws of the several states, except where the Con-
stitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be re-
garded as rules of decision in civil actions in the
— of the United States, in cases where they
apply.
3
STATEMENT OF THE CASE
A. INTRODUCTION
In all respects except Judge Bazelon’s extraordinary
and unprecedented opinion for the court below, the in-
stant case is essentially identical to the Forty-Eight
and Porter? cases recently before this Court, and to the
Eagle-Picher case now in the First Circuit.’ It is one of
some twenty cases in which the courts must determine
who is responsible for defending and paying for the
largest block of tort litigation in American judicial his-
tory, the thousands of underlying asbestos product lia-
bility cases that threaten to bring some of the nation’s
trial courts almost to a standstill.
Liberty described Forty-Eight and Porter to the Sixth
Circuit as “the vanguard of what may be the most im-
portant legal issue in the history of the American insur-
ance industry.” Brief of Appellee Liberty Mutual, Forty-
Eight, supra, at 4. None of the five other parties or nine
amici curiae in that case demurred. Even Hartford,
which disagrees with Liberty on the merits, labels these
“perhaps the most important insurance law issues ever
to be litigated in our judicial system.” Hartford Petition
for Writ of Certiorari, No. 81-1197, filed December 24,
1981, at 3. The District of Columbia Circuit has now
confused them immeasurably, by reversing the district
court (which followed Forty-Eight and Porter), and radi-
cally diverging from both the reasoning and the result
1 Insurance Company of North America v. Forty-Eight Insula-
tions, Inc., 683 F.2d 1212 (6th Cir. 1980), modified and af d., 657
F.2d 814 (6th Cir. 1981), cert. denied, 50 U.S.L.W. 3466 (December
7, 1981) (Nos. 81-198 and 81-199).
2 Porter v. American Optical Corporation, 641 F.2d 1128 (5th
Cir. 1981), cert. denied, 50 U.S.L.W. 3466 (December 7, 1981),
(N6. 81-200).
® Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance
Company, 523 F. Supp. 110 (D. Mass. 1981), appeals docketed,
Nos. 8)-1761/62/68 (1st Cir. September 25, 1981).
4
of every other court which has wrestled with these
issues.
The background of this case and its far-reaching im-
plications upon the administration of justice in the fed-
eral courts have been described fully in the Petitions in
Forty-Eight and Porter, and in INA’s and Hartford’s
Petitions in No. 81-1012 and No. 81-1197 in the case at
bar, and will not be repeated here. On June 16, 1978,
Keene Corporation initiated this declaratory judgment
action against four insurance carriers* which had issued
it general liability insurance, seriatim, from 1961
through 1980. Those carriers and the dates they insured
Keene are:
INA—December 31, 1961-August 23, 1968
Aetna—August 23, 1968-August 23, 1971
Hartford—August 23, 1971-October 1, 1974
Liberty—October 1, 1974-October 1, 1980°
At the time of its brief in the court below, Keene had
been sued in more than 6,000 underlying asbestos product
liability cases. Keene sought from the district court a
determination as to which of its insurers was responsible
* Keene also named a fifth carrier, Pennsylvania Manufacturers’
Association Insurance Company (“PMA”), as a defendant in the
district court, alleging that PMA had issued liability insurance
to Keene from 1948 to 1961. The district court granted summary
judgment dismissing the action as to PMA, however, because Keene
could not prove that it had purchased such product liability cov-
erage. That dismissal was affirmed by the court of appeals in a
separate appeal, No. 81-1245 (D.C. Cir. October 1, 1981).
5 Some of the insurers issued their policies specifically to Keene
Corporation, and some to asbestos insulation manufacturers which
were acquired by Keenc Corporation. For present purposes Liberty
refers to both classes of companies simply as “Keene.”
In addition, Liberty issued a policy to Keene Corporation from
August 23, 1967 through August 23, 1968. The District of Columbia
Circuit held that there was a factual issue which required trial,
however, as to whether this policy had any application to the
asbestos product liability actions here in issue. Opinion, INA
App. at 35a.
5
for defending Keene and for paying settlements and
judgments in these actions. Jurisdiction in the district
court was based on diversity of citizenship, 28 U.S.C.
§ 1332.
The general liability insurance policies which Liberty
issued to Keene were standard form printed policies, and
have been used throughout the United States by insur-
ance carriers for many years. The policies are identical
to those construed in Forty-Eight, Porter, and Eagle-
Picher, notwithstanding the wildly divergent readings
which the courts have given them.
Liberty and several of the other insurers issued “oc-
urrence” policies to Keene. These apply to “accidents”
(i. e., sudden, traumatic events) and to “continuous or
repeated exposure to conditions, which results in Bodily
Injury or Property Damage. Liberty Policy, Joint
App. I at 73.7 “Bodily Injury” is defined to include “bod-
ily injury, sickness or disease.” Jd. Each policy which
the insured ever purchased, however, does not cover any
“dily injury, sickness or disease,” although that is al-
most what the court of appeals has held. Rather, cover-
age extends to injury or disease “which occurs during
the policy period.” Id.
In the thousands of underlying actions insulation
workers and shipbuilders have sought recovery for lung
diseases allegedly contracted after a lifetime of working
Words in boldface type appear as such in the policies, and such
terms are specifically defined ‘n the policies.
7 References to Joint App. are to the Joint Appendix in the
court of appeals proceedings. The policy language quoted at page
5 of INA’s Petition is slightly different, inasmuch as it provides
coverage as to “bodily injury, sickness or disease. . which results
during the policy period.” This difference in wording is attributable
to the different dates on which INA and Liberty issued their stand-
ard form policies to Keene. No one has ntended, however, that
such minor differences in wording are pertinent to the present
issue, and both the court below, Opinion, INA App. at 6a, and the
Sixth Circuit in Forty-Eight, 633 F.2d at 1215-16, held that they
are not.
6
with asbestos-containing insulation products made by
Keene and other manufacturers. These diseases are
asbestosis (a non-malignant fibrotic disease characterized
by scarring of the lungs), bronchogenic carcinoma (lung
cancer), and mesothelioma (cancer of the cells which line
the chest cavity). The diseases do not appear in those
who contract them until many years after the initial in-
halation of asbestos fibers. Opinion, INA App. at 5a,
n.3, and at 10a, n.9.
Liberty and several other parties argued below that
asbestosis and cancer “occur,” as most people would
understand the term, when they manifest themselves by
signs or symptoms that indicate to the claimant or his
physician that a departure from good health has taken
place. This common sense interpretation has become
known as the manifestation theory. It is supported by
the state court decisions which have considered when
disease occurs, and was followed by the district court in
Eagle-Picher.
Hartford“ advanced what is now called the exposure
theory. This holds that even though asbestosis and cancer
are diseases, each involves “injury” to the cells of the
lung, which occurs each time asbestos fibers are inhaled,
years before any disease manifests itself.“ Under this
8 And also Keene, until it attempted to overhaul its theory
shortly before the trial in the district court. Hartford describes
the procedural twists by which Keene arrived at its last minute
theory. Hartford Petition in No. 81-1197 at 10-13. That the court
of appeals rejected all prior decisions in this area to adopt Keene’s
theory is startling enough. That it managed to do so without
„rely [ing] on any legal or factual aspect of Keene’s argument,” is
a remarkable tribute to the District of Columbia Circuit’s in-
genuity. See Order of December 21, 1981 amending the court of
appeals opinion, infra at Appendix A.
If, indeed, it ever does. Most people who inhale asbestos fibers,
and thus experience this cellular “injury,” never become ill. Over
90% of all urban city dwellers have some asbestos-related scarring,
but only a tiny percentage of those exposed will ever develop clinical
asbestosis.” Eagle-Picher, 523 F. Supp. at 115.
7
interpretation, all of the carriers who insured a manu-
facturer during the many years a claimant was exposed
to its products are proportionately responsible for each
claim against the insured, based upon the number of
years they were “on the risk” relative to the number of
years the claimant was exposed to asbestos. Similarly,
if the manufacturer was uninsured during part of the
exposure period, it is proportionately liable under the
same formula. This theory was adopted by the Sixth
and Fifth Circuits in Forty-Eight and Porter, and by the
district court below.
The District of Columbia Circuit rejected each of these
interpretations, however. Instead, it created a wholly new
and amalgamated interpretation composed of bits and
pieces of each, together with some additional holdings of
its own invention. In doing so it has thrust the law in
this important area a giant step backward and has in-
jected chaos where hitherto there was only confusion and
uncertainty.
B. THE DECISION BELOW AND THE CONFLICT IN
THE FEDERAL DECISIONS
Although the above questions seem straightforward
enough, they have provoked a hornets nest of contradic-
tory opinions from the federal courts that have considered
them over the last year. The inabiilty of the federal
courts to agree upon the duties and rights of insurers
and insureds in the thousands of underlying cases
threatens to further confuse and delay what is already
“the largest, and potentially most costly, block of product
liability litigation ever to confront American industry.” “
10 “Asbestos Injury Suits Mount, With Broad Business Impact,”
New York Times, July 3, 1981, at 1.
The issue relates to more than asbestos moreover. The same
arguments which underlie the exposure approach in the asbestos
context are now being made with respect to such diverse pharma-
ceuticals as oral contraceptives, DES, and other drugs, and with
respect to the Agent Orange multi-district litigation pending in
8
Throughout its opinion in Forty-Eight, the Sixth Cir-
cuit acknowledged that the traditional manifestation in-
terpretation makes as much sense with respect to asbestos-
related diseases as to others. We concede that appellants
have a good argument... [T]here are solid arguments
to support the manifestation theory. . . . These cases
certainly appear to provide support for the manifestation
theory.” 633 F.2d at 1218, 1219, 1221. Nonetheless, that
court felt itself “bound to broadly construe the insurance
policies to promote coverage,” and adopted the exposure
interpretation in order to “maximize” coverage for the
insured. 633 F.2d at 1219. The Sixth Circuit thus
adopted the exposure theory and pro-rated liability among
the parties according to how long each was at risk during
the exposure period."
In Eagle-Picher, on the other hand, the United States
District Court for the District of Massachusetts expressly
rejected Forty-Eight and Porter, arid adhered to the
traditional manifestation interpretation. The FEagle-
Picher court held that the terms “injury” and “disease”
must be construed according to their ordinary, everyday
meaning. 523 F. Supp. at 115-6. The court also found
that the argument that each inhalation of asbestos fibers
the Eastern District of New York. See “Suits That Are Searing
Asbestos,” Business Week, April 13, 1981, at 166, 169:
. . . Since illnesses caused by asbestos, such as cancers of the
lung, chest, and abdomen, are “latent,” typically appearing
10-20 years after exposure, the potential damages could be
staggering.
Even more troublesome, some experts believe that asbestos
litigation represents just the initial onslaught of occupational
—and environmental—related disease lawsuits that will deluge
the courts in coming years. . New legal remedies in the
asbestos area will almost certainly be applied in cases involving
radiation, hazardous waste dumping, DES, Agent Orange, and
a host of other toxic substances.
11In Porter the Fifth Circuit adopted the “reasoning and re-
sult” of the Sixth Circuit without further elaboration. 641 F.2d at
1145.
produces “bodily injury” within the contemplation of
the policies gives those words “a hypertechnical defini-
tion” which no one could reasonably have anticipated
when the agreements were entered into years in the past.
Id. at 116-7. This is particularly true because the ex-
posure approach rests upon medical research “on the
cutting edge of one area of the developing science in
this field,” research which has taken place “only within
the last five to eight years.” Id. at 116, n.6. The court
correctly noted that the Sixth Circuit’s refusal in Forty-
Eight to follow the well-established precedents supporting
the manifestation interpretation “appears to rest pri-
marily on considerations of policy and result.” Id. at 117,
n.9.
Although these cases would appear to set the bounds
for determining when injury or disease occurs in the
context of asbestos-related lung diseases, the District of
Columbia Circuit managed to break new ground with its
opinion below. In the process it not only repeated the
errors w ich Liberty, INA, and Aetna pointed out in
their Certiorari Petitioners in Forty-Eight and Porter,
but also committed a catalog of new errors.
With remarkable analytical catholicity the court below
indiscriminately borrowed an idea here and an idea there,
even from mutually inconsistent theories, as follows:
1. It held that the manifestation theory must con-
tinue to be followed with asbestos diseases just
as with others, “if the purpose of the policies is
not to be undercut... .” Opinion, INA App. at
20a.
2. In addition, however, it held that each inhala-
tion of asbestos fibers must also be deemed an
“injury” so that exposure also triggers coverage.
The circular reason for this conclusion was that
if only manifestation triggers coverage, it “would
deprive Keene of the protection it purchased
when it entered into the irsurance contracts.
We, therefore, reject the w.anifestation theory
10
as presented by INA, Aetna and Liberty because
it does not allow exposure, as well as manifesta-
tion to trigger insurance coverage.” Opinion,
INA App. at 22a.
3. Still not satisfied that both manifestation and
exposure create coverage, however, the court
noted that inhaled asbestos fibers may remain
within the lung, and in this sense the individual
may be “exposed” to them for the rest of his life.
The court termed this phenomenon “exposure in
residence,” and having given it a name, held that
it too must trigger coverage. The reason: “Thus,
in order for Keene’s rights under the policies to
be secure, both inhalation exposure and exposure
in residence must also trigger coverage.” Opin-
ion, INA App. at 22a.
4. Finally, the court parted company with the dis-
trict court below and the Forty-Eight court, and
held that the manufacturer was fully covered in
each underlying case by any policy in effect at
any time during the exposure, exposure in resi-
dence, or manifestation periods. Whether that
coverage was maintained for thirty years or one
month would make no difference. Judge Wald
dissented from this portion of the court’s ruling.
REASONS THE WRIT SHOULD BE GRANTED
As in Forty-Eight, Porter, and Eagle-Picher, the fed-
eral courts have jurisdiction in this case by virtue of
diversity of citizenship. Like those courts, therefore, the
court below was obliged to determine, and then apply,
the substantive law in effect in the various states in
which the insurance contracts were entered into. What-
ever shortcomings attended its efforts to do so, the
Sixth Circuit recognized as much in Forty-Eight when
it stated that its role was to determine how the highest
courts of New Jersey and Illinois (the states in issue
there) would resolve the questions presented. 633 F.2d
at 1219.
11
The decision below is unlike that in Forty-Eight in this
regard. The Distriet of Columbia Cireuit made no effort
whatever to determine, much less reconcile with its un-
precedented opinion, the legal rules announced in the
states whose law is germane to this litigation. Its failure
to make that effort has resulted in a free-wheeling
pastiche of newly proclaimed insurance law concepts di-
rectly at odds with those which have been established in
the pertinent states.
The District of Columbia Circuit explained its lack of
concern for state decisional precedent in these words:
We find it unnecessary, however, to reach the issue
of the applicable state law. The district court did
not address the issue, nor did any of the parties
raise the issue. This omission is apparently due to
the fact that the potentially applicable state laws
do not differ from one another.
Opinion, INA App. at 10a, n.10 (emphasis added). The
italicized statement is difficult to fathom, for in its brief
below Liberty raised precisely the issue which the court
refused to consider:
Because the policies between Liberty and Keene
were executed in New York and are governed by
the law of that state, a recent New York state court
decision adopting a manifestation interpretation is
particularly instructive.”
12The decision referred to is American Motorists Insurance
Co. v. E. R. Squibb & Sons, Inc., 95 Misc. 2d 222, 406 N.Y.S.2d
658 (1978), discussed below at page 20.
The District of Columbia Circuit rationalized its lack of concern
for the decisional law of New York by concluding that there was
only a “false conflict” among the laws of the potentially involved
states, so that “There is thus no conflict of laws.” Opinion INA
App. at lla, n.10. On the strength of this observation the court
evidently believed that it could write on a clean slate in molding
its own theory as to how the insurance policies should be construed,
without recourse to decisions from New York or any of the other
five states potentially interested in the insurance transactions.
Indeed, the court below cited only three New York cases in its
opinion, Squibb, Reiser v. Metropolitan Life Insurance Co., 262
12
A. THE COURT OF APPEALS COMPLETELY DISRE-
GARDED ITS OBLIGATIONS UNDER ERIE TO
CONFORM ITS OPINION TO INSURANCE LAW
PRINCIPLES THAT HAVE LONG BEEN WELL
ESTABLISHED UNDER THE GOVERNING STATE
LAW.
1. The Court Of Appeals Improperly Reversed The
Burden Of Proof.
The principal argument made in Liberty’s Petition in
Forty-Eight, No. 81-199, was that the Sixth Circuit im-
permissibly “reversed” the burden of proving the facts
which establish coverage, which state law clearly placed
on the insured. Although the District of Columbia Cir-
cuit expressly rejected most of the Sixth Circuit’s reason-
ing, it unfortunately followed the latter court on this
A.D. 171, 28 N.Y.S.2d 283 (1941), aff'd mem., 289 N.Y. 561, 43
N.E.2d 534 (1942) (discussed below at page 22), and Silverstein v.
Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914 (1930), and
it did not follow any of them.
Before a court can hold that a choice of law question presents
a false conflict, it must determine specifically what the law in
the relevant states is with respect to the question in dispute. Only
if that law is the same is there a false conflict, making it unneces-
sary to decide which law governs. Here, however, the court made
no such analysis. Instead, it brushed aside such an endeavor as
“unnecessary” since “basic principles” in all of the potentially
affected jurisdictions were “the same.” In refusing to deal mean-
ingfully with the controlilng state decisions, the court reduced the
entire body of insurance law of six states to an amorphous gen-
erality, that insurance policies have a “dominant purpose of in-
demnity,” or insureds are entitled to “certainty” against all lia-
bility. Opinion, INA App. at 12a. This Court will permit a mis-
chieveous retrenchment of Erie if it permits a federal diversity
court to ignore applicable state rules of decision by reducing them
to such meaningless generality that it is “unnecessary” to con-
sider them. Indeed, for the court below to apply the law of a state
other than New York to the contracts between Liberty and Keene
would deprive Liberty of due process, for other states have no
substantial contact with that contractual relationship. Allstate
Insurance Co. v. Hague, 449 U.S. 302, 312-13 (1981); Home
Insurance Co. v. Dick, 281 U.S. 397, 408 (1930).
13
issue. Ironically, the court below, like the Sixth Circuit,
made that ruling in a footnote without citing authority
or in any way justifying its reversal of state law in a
diversity case.
We recognize that the insured generally bears the
burden of proving coverage. The injuries at issue
in these cases, however, are unique and traditional
procedural rules cannot be allowed to defeat Keene’s
nor its insurers’ substantive rights under the poli-
cies. Reversal of the ordinary burden of proof will
be more equitable for all parties and will prevent
unnecessary litigation.
Opinion, INA App. at 34, n.42.
The court of appeals thus ignored this Court’s decisions
that [Under the Erie rule, presumptions (and their
effects) and burden of proof are ‘substantive’,” not
merely procedural. Dick v. New York Life Insurance Co.,
359 U.S. 437, 446 (1959). Palmer v. Hoffman, 318 U.S.
109, 117 (1943); Cities Service Oil Co. v. Dunlap, 308
U.S. 208, 212 (1939). See also, Fireman’s Fund Insur-
ance Co. v. Videfreeze Corp., 540 F.2d 1176 (3d Cir.
1976), cert. denied, 429 U.S. 1053 (1977) (Error to
shift burden of proof to insurer from “where it would
ordinarily rest... —on the insureds“). “
18 Liberty and other parties filed petitions for rehearing and
suggestions for rehearing en banc in the court below in which
Liberty raised this burden of proof issue. On November 19, 1981
the Dsitrict of Columbia Circuit denied the rehearing petitions.
Nevertheless, on December 21, 1981 in an order it designated as
“sua sponte,” the court amended Judge Bazelon’s opinion by adding
several new paragraphs thereto. (A copy of the court’s December
21, 1981 amendment to the opinion is reprinted as Appendix A
to this Petition.)
On the burden of proof issue the court below added the follow-
ing to its footnote 42. “We recognize that burdens of proof are
matters of state law. Dick v. New York Life Ins. Co., 359 U.S. 437,
446 (1959). We believe, however, that this case is so different
from the cases in which the insured’s burden of proof developed,
that those cases provide no authority for this case.” The court
14
Liberty has dealt with this principle in detail in its
Petition in Forty-Eight, and those arguments will not be
repeated here. We note, however, that New York, like
New Jersey and Illinois (whose law was in issue in
Forty-Eight), has consistently followed the general rule
that in a coverage dispute the burden of proving the
facts necessary to establish coverage rests on the insured,
not the insurer. Indeed, the New York courts have ap-
plied this rule not only in cases involving liability in-
surance,'* but also in those involving accident insurance,“
therefore recognized that Judge Bazelon’s characterization of the
burden of proof rule as procedural was erroneous. Nevertheless,
the court left unchanged his reversal of the burden of proof without
citing any authority, or identifying in what manner this insurance
case differs from the many stating the usual rule. In doing so, the
court completely disregarded its Frie obligations.
14 Lavine v. Indemnity Insurance Co., 260 N.Y. 399, 410, 183
N.E. 897, 900 (1933) (“The burden of proof rested upon the plain-
itff to establish that the policy covered.”); Bogardus v. United
States Fidelity & Guaranty Co., 269 A.D. 615, 58 N.Y.S.2d 217,
222 (1945) ([The burden of proof to show a cause of action
under the coverage of the policy is on the plaintiff. . . ); Carles
v. Travelers Insurance Co., 238 A.D. 43, 263 N. V. S. 29, 31 (1933),
rehearing denied, 239 A.D. 814, 263 N.Y.S. 976 (1933) (Where the
policy did not apply to injuries caused by an elevator being oper-
ated by a person under the lawful age for elevator operators, “the
burden was upon this plaintiff both of pleading and of proving
that the elevator at the time of the acicdent was being operated
by a person of legal age.”)
15 Whitlatch v. Fidelity & Casualty Co., 149 N.Y. 45, 51, 43 N. E.
405 (1896); Plotkin v. Disability & Casualty Inter-Insurance Ex-
change, 27 A.D.2d 719, 277 N.Y.S.2d 464, 465 (1967) (“The issue
is whether Plotkin died an accidental death, with the burden on
plaintiff to prove death within the coverage. ; Regan v.
National Postal Transport Association, 53 Misc. 2d 901, 280
N.Y.S.2d 319, 327 (1967) ([The plaintiff in an action upon an
accident policy . . . must, by the fair preponderance of the credible
evidence, show not only that the insured died but that the death,
or the injuries which causes [sic] it, was of the kind insured
against by the policy. . .)
15
casualty insurance,“ life insurance,“ marine insurance,
burglary insurance,“ fidelity insurance,“ and credit in-
surance,” so the court below had to sweep a lot of deci-
sions under the rug to declare that they “provide no
authority for this case.” If this Court’s rulings in Dick,
Palmer, and Cities Service are to continue to have any
meaning at all, the refusal of the court below to follow
New York law merely by labelling asbestos cases “dif-
ferent” cannot be permitted to stand.”
16 Hallas v. North River Insurance Co. of New York, 279 A.D.
15, 107 N.Y.S.2d 359, 360 (1951), aff'd mem., 304 N.Y. 671, 107
N.E. 2d 592 (1952) (“Plaintiff, therefore, had the burden under
the policies of showing the extent of any covered loss occasioned by
fire as distinguished from any excluded loss caused by the ex-
plosion.“)
17 Barlow v. Prudential Insurance Co. of America, 17 Misc. 2d
864, 187 N.Y.S.2d 231, 282 (1959) (“While death in an action
on an insurance policy may be established by proof of disappearance
under the circumstances that indicate death rather than conceal-
ment, the burden of proof in such situation is at all times upon
the plaintiff.“)
18 Berwind v. Greenwich Insurance Co., 114 N.Y. 231, 21 N.E.
151 (1889), reargument denied, 21 N.E. 1119 (1189); Green v.
Globe & Rutgers Fire Insurance Co., 200 A.D. 343, 192 N. v. S.
770, 771 (1922) (“The appellant correctly states the law that the
burden of proof is upon the plaintiff to prove that the loss occurred
as the result of a peril insured against.
19 United Sponging Co. v. Preferred Accident Insurance Co., 97
Misc. 396, 161 N.Y.S. 309, 311 (1916), aff'd mem., 165 N. v. S. 1116
(A.D. 1917).
20 Re Penna’s Estate, 160 Misc. 525, 290 N. V. S. 200, 203 (1936),
rev'd on other grounds, 250 A. D. 719, 293 N. V. S. 73, af d sub nom.
In re National City Bank, 274 N.Y. 600, 10 N. E. 2d 571 (1937).
21 Goodfriend v. American Credit Indemnity Co., 217 A.D. 635,
217 (N.Y.S. 162, 165, aff'd, 244 N.Y. 546, 155 N. E. 891 (1926)
(burden upon plaintiff insured to prove that bankrupt was in
sound financial condition time of plaintiff’s transaction with
him).
2 In Hanna v. Plumer, 380 U.S. 460, 468 (1965), this Court
identified the “twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration of the
16
2. The Court Impermissibly Refused To Follow The
“Ordinary Meaning” Rule Followed By The New
York Courts.
Since Judge Cardozo’s admonition that the court’s point
of view in interpreting an insurance contract “must be
that of the average man,” Lewis v. Ocean Accident &
Guaranty Co., 224 N.Y. 18, 21, 120 N. E. 56, 57 (1918),
the courts of New York have consistently agreed that
words used in insurance policies should be understood
as they are commonly and ordinarily used. “[T]Jerms
are to be taken and understood in their plain, ordinary,
and proper sense.” Johnson v. Travelers Insurance Co.,
269 N.Y. 401, 199 N.E. 637, 640 (1936). See also State
Farm Mutual Automobile Insurance Co, v. Westlake, 35
NY.2d 587, 364 N.Y.S.2d 482, 485 (1974). Policy lan-
guage must be interpreted “in the light of the average
laws.” State law is to be followed when “the application of the
[state] rule would have so important an effect upon the fortunes
of one or both of the litigants that failure to enforce it would be
likely to cause a plaintiff to choose the federal court.” Id. at n.9.
The circuit court’s refusal to apply state law on the burden of proof
issue will undoubtedly induce forum-shopping because an insured
bringing a coverage action in a district court in the Fifth, Sixth
and District of Columbia Circuits has a substantial advantage over
a similar plaintiff before a state trial court, which is still bound
by the decisions of that state’s highest court.
The second Erie interest requires that “the accident of diversity”
may not “disturb equal administration of justice in coordinate state
and federal courts sitting side-by-side.” Klaxon Co. v. Stentor
Electric Mfg. Co., 313 U.S. 487, 496 (1941), quoted with approval
in Day and Zimerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per
curiam). Under the decision below, Forty-Eight, and Porter, fed-
eral courts in three circuits must apply the opposite rule on a
potentially outcome-determinative issue as the trial courts of the
state in which they sit. “A federal court in a diversity case is
not free to engraft onto those state rules exceptions or modifica-
tions which may commend themselves to the federal court, but
which have not commended themselves to the State in which the
federal court sits.” Day and Zimmerman, Inc. v. Challoner, supra,
at 4. .
17
man’s understanding of plain language or common speech,
and not the understanding of the scientist or savant.”
Lee v. Guardian Life of America, 46 N.Y.S.2d 241, 245
(1944), affd, 267 A.D. 985, 48 N.Y.S.2d 800, appeal
denied, 268 A.D. 849, 50 N.Y.S.2d 674 (1944).
Courts called upon to interpret what “injury” and
“disease” mean in the insurance context have determined
that in common speech the two are not synonomous.
The words “bodily injury” are commonly and ordi-
narily used to designate an injury caused by ex-
ternal violence, and they are not used to indicate
disease. We do not speak of sickness as an accident
or injury.
Burns v. Employers’ Liability Assurance Corp., 134 Ohio
St. 222, 16 N.E.2d 316, 321 (1938). See also Lincoln
National Life Insurance Co. v. Erickson, 42 F.2d 997,
1001 (8th Cir. 1930) (“The distinction thus drawn is not
a strained one, but is such as would occur to the mind
of the ordinary layman.”): Wright v. American Home
Assurance Co., 488 F.2d 361, 364 (10th Cir. 1973).
The Eagle-Picher court recognized that “it is a basic
tenet of insurance law that unambigous contract terms
are to be given their common, popular, and ordinary
meaning.” 523 F. Supp. at 115-6 (citing, inter alia,
Erickson, supra). Applying this rule in the asbestos
context, the court rejected as “hypertechnical” the ex-
posure construction of the policies under which “injury”
during the policy period would refer to “the earliest sub-
clinical cellular damages. . [rather than] the time when
the individual has clinically evident disease.” Jd. at 116-
117.
If a claimant was exposed to asbestos in 1950 and con-
tracted cancer in 1980,” most people would surely say
23 Although asbestosis generally occurs only after years of con-
tinuous and excessive exposure to asbestos dust, the above fact
pattern is not unusual with respect to lung cancer and mesothe-
lioma. See, for example, Dr. Chester’s testimony concerning a
18
that his disease occurred in 1980, as the words are “com-
monly and ordinarily used.” The court below evidently
agreed, for it held that a manifestation interpetation had
to be preserved, at least in part, if the purpose of the
policies was not to be “undercut.” Opinion, INA App.
at 20a. Nevertheless, the court also held that injury or
disease “occurred” in 1950, and continued to “occur”
during the thirty years between the exposure and the
development of cancer. Judge Bazelon’s opinion made no
pretense that this elastic reading of the policy terms
necessarily reflected the way they ordinarily would be
understood. Instead, the court below brushed aside the
“ordinary” meaning of the contracts as immaterial.
(T]he fact that an ordinary person would char-
acterize a fully developed disease as an “injury”
does not necessarily imply that the manifestation of
the disease is the point of “injury” for purposes of
construing the policies.
Opinion, INA App. at 15a.
That this is not the law of New York—nor, as the
Eagle-Picher decision reminds us, anywhere else—did not
perturb the court of appeals, but it provides one more
glaring reflection of the need for this Court to emphasize
to the lower federal courts wrestling with asbestos cov-
erage issues their obligation under Erie to follow the
appropriate state law, “not to limit, modify, or repeal
state doctrine” whenever it does not square with the
result which the federal court wishes to reach. Rehm v.
Interstate Motor Freight System, 333 F.2d 154, 157
(6th Cir. 1943). The District of Columbia Circuit, sit-
ting as an Erie court, cannot do what the highest court
of New York recognized as improper.
This court may not make or vary the contract of
insurance to accomplish its notions of abstract jus-
patient of his who worked on a navy vessel for two months during
World War II while it was being refitted, worked for 33 years
thereafter as an accountant, and suddeniy contracted mesothelioma
in 1978, dying within a year. VII Joint App. at 2738-44.
19
tice or moral obligation, since “[e]quitable consid-
erations will not allow an extension of the coverage
beyond its fair intent and meaning in order to do
raw equity and to obviate objections which might
have been foreseen and guarded against.”
Breed v. Insurance Co. of North America, 46 N. V. 2d 351,
356, 385 N.E.2d 1280, 413 N.Y.S.2d 352, 355 (1978).
3. The Court Improperly Ignored New York Prece-
dent Which Directly Supports The Manifestation
Position.
Because INA carefully addresses the point in its Peti-
tion in No. 81-1012, we note only briefly our agreement
with INA’s observation that in insurance cases the gen-
erally applied state law is the manifestation rule. It is
not the exposure rule, and it is assuredly not the analyti-
cal boullabaisse created by the District of Columbia Cir-
cuit here. Manifestation is also the rule which the
New York courts have followed, notwithstanding the
court of appeals’ belief that it was “unnecessary .. . to
reach the issue of the applicable state law.” Opinion,
INA App. at 10a, n.10.
A long-developing medical disability similar to those
in the underlying actions here was considered in Reiser
v. Metropolitan Life Insurance Co., 262 A.D. 171, 28
N.Y.S.2d 283 (1941) aff'd mem., 289 N.Y. 561, 43 N.E.
2d 534 (1942). There the claimant suffered from calcium
deposits attributable to treatment of club feet during
his infancy. The calcium deposits had remained dormant
and undiscovered for almost forty years, and had caused
no difficulty for the claimant until they suddenly flared
up during the policy periods, seriously disabling him. In
determining whether “bodily injury or disease” had
“occurred” within the meaning of a health insurance
policy, the New York court said:
A disease does not occur or originate within the
meaning of the policy until it becomes a disease in
the general acceptation of that term; a bodily injury
does not occur nor originate within such meaning,
at least until it reveals itself.
20
28 N.Y.S.2d at 286 (citing and applying the rule of
interpretation in Lewis v. Ocean Accident & Guarantee
Corp., supra). Another New York court said substantially
the same thing in Wenger v. Mutual Benefit Health &
Accident Association, 203 N.Y.S.2d 946, 947 (1960):
“A person is not regarded as being sick if he performs
his usual occupation and engages in his usual activities.”
Even closer to home is American Motorists Insurance
Co. v. E. R. Squibb & Sons Inc., 95 Mise. 2d 222, 406
N.Y.S.2d 658 (1978), a declaratory judgment action
which presented exactly the question posed here, though
hardly with the same result. That court interpreted a
liability insurance policy which even the court below ad-
mitted was “similar in all relevant respects to the pol-
icies we have before us.” Opinion, INA App. at 19a.
Squibb involved a drug known as DES, to which the
three claimants were exposed, in utero, in 1952, 1953,
and 1961, respectively. They sued Squibb for cervical
cancers which weren’t discovered until 1970, 1971, and
1975. The New York court squarely held that the mani-
festation of the cancers, not the exposures to the drug,
triggered insurance coverage.
The District of Columbia Circuit could hardly ignore
Squibb, but it did something almost as bad. It misstated
what the New York court said, and then it rationalized
that its own holding conformed with the state court’s
when it clearly did not. The court below said that in
Squibb the “court did not have to determine the liability
of an insurer that was on the risk prior to the diseases’
manifestation,” so that the new York court’s application
of the manifestation interpretation was not inconsistent
with Judge Bazelon’s manifestation-plus-exposure-plus-
exposure-in-residence theory. Opinion, INA App. at 20a.
This end run around the state decision completely ignores
what the New York court said, however:
A reading of the policy language would appear to
indicate that coverage is predicated not on the act
which might give rise to ultimate liability, but upon
21
the result. It would be a strained interpretation w
construe the occurrence clause as though it covered
“exposure during the policy period which results in
bodily injury.” It is the result which is keyed to the
policy period, and not the accident or exposure.
406 N.Y.S.2d at 659-60 (first emphasis added). The
state court could not have more clearly rejected the
“strained” exposure-based rationale adopted by the Dis-
trict of Columbia Circuit here.“
B. EVEN IF EXPOSURE IS THE TRIGGER OF
COVERAGE, THE COURT BELOW ERRED IN RE-
FUSING TO HOLD THAT THE INSURED IS
RESPONSIBLE FOR INJURIES ATTRIBUTABLE
TO EXPOSURES WHEN IT HAD NO INSURANCE.
Because the policies provide coverage only for injury
or disease which occurs during the policy period, even
the District of Columbia Circuit acknowledged that this
case could be approached only by reference to that lan-
guage. “In the language of the policies, the question is
when did ‘injury’ occur?” Opinion, INA App. at 18a.
Having made that observation, however, the court ignored
it altogether. In doing so, it created a square conflict
in the circuits with respect to an issue which is central
24 We recognize that under King v. Order of Travelers, 333 U.S.
153 (1948), a federal diversity court is not necessarily controlled
by a lower state court decision, where the highest court of the
state has not addressed the issue in question. This Court has also
held, however, that such state trial court decisions cannot be alto-
gether disregarded. Rather, they must be studied and “proper re-
gard” must be given to them, in the federal court’s effort to
understand how the highest courts of the state would rule on the
issue. Commissioner v. Estate of Bosch, 387 U.S. 450, 464 (1967).
The rule is that the decisions of lower state courts must be adhered
to in a diversity case unless the diversity court “is convinced by
other persuasive data that the highest court of the state would
decide otherwise.” West v. American Telephone & Telegraph Co.,
311 U.S. 223, 237 (1940). No matter how the criterion is articu-
lated, it is clear that the District of Columbia Circuit’s disregard
for what the New York court said in Squibb does not measure up
to its Erie responsibility.
22
to the responsibilities which the parties have in the de-
fense of the thousands of underlying asbestos actions.“
As the above language shows, if any exposure-based
interpretation of the policies were to stand, it could be
upon one basis only. That is that each exposure to asbes-
tos results in some bodily reaction which should be des-
ignated as “injury,” thus triggering insurance coverage.
There is simply no other reasoning which could support
a deviation from the traditional manifestation interpreta-
tion, for if there is no “injury” which “occurs during the
policy period,” there is no coverage.
What this means, however, is that if a claimant was
exposed to a manufacturer’s products at a time when
that manufacturer had no insurance, the “injuries” at-
tributable to those exposures are the manufacturer’s
responsibility. Any other result gives the insured a wind-
fall by providing it coverage, gratis, for injuries it in-
flicted at a time when it had not purchased insurance.
The Sixth Circuit categorically rejected this result in
Forty-Eight, although it was “vehemently” urged by the
insured with respect to defense costs.
The duty to defend arises solely under contract. An
insurer contracts to pay the entire cost of defending
a claim which has arisen within the policy period.
The insurer has not contracted to pay defense costs
for occurrences which took place outside the policy
period. Where the distinction can be readily made,
the insured must pay its fair share for the defense
of the non-covered risk.
Forty-Eight, 633 F.2d at 1224-25.
Judge Wald accordingly dissented with respect to this
portion of the court’s holding, because it makes no sense
25 As discussed at page 28 below, the District of Columbia Cir-
cuit’s departure from the holding in Forty-Hight did not rest on a
difference in the state law being applied. (Indeed, how could it
since the court below ignored state law anyway?) Rather, both
courts applied the same general principles, notwithstanding their
complete disagreement as to where those principles led.
23
that “an asbestos manufacturer, which has consciously
decided not to insure itself during particular years of
the exposure-manifestation period, should have a reason-
able expectation that it would be exempt from any lia-
bility for injuries that were occurring during the unin-
sured period.” Opinion, INA App. at 44a (Wald, J.).
As Judge Wald correctly stated, the court’s holding on
this point flatly contradicts the “very notion of ‘injury’
adopted by the panel.” It also gives Keene an unjustifi-
able windfall, because “If the risk is to be shared only
by the insurance companies, a manufacturing company
that purchased insurance intermittently during the risk
period would be as secure as those prudent companies
that continuously purchased insurance.” Id. at 45a.
Judge Bazelon’s opinion attempted to sidestep Judge
Wald’s lucid criticism on this point with some of the
most convoluted language in the decision.
Although we have defined the term “injury,” we
have done so only as an incidental aspect of a logi-
cally prior determination of Keene’s rights under
the policies viewed in their entirety. . . [Judge
Wald’s reasoning] that the insurers are not obli-
gated to indemnify Keene in full contradicts the
first and foremost aspect of our decision—our hold-
ing that each policy provides Keene with the right
to be free of liability for asbestos-related disease.
Opinion, INA App. at 26a-27a. Elsewhere the court
below ruled that it was reasonable to hold each insurer
responsible for the entirety of an underlying claim,
whether it was on the risk for one day or twenty years,
on the basis that, “Nor do the policies provide that
‘injury’ must occur entirely during the policy period
for full indemnity to be provided.” Opinion, INA App.
2¢ Earlier the court described when did ‘injury’ occur” as “the
question” presented by this action. Opinion, INA App. at 13a.
Within a few pages, however, it was reduced to only “an incidental
aspect” of the issu’ Apparently it did not support the result which
the court intended to reach as “a logically prior determination.”
24
at 28. The court described this reasoning as not “too
great a leap of logic.” Id. at 29, n.34.
We will forego comment on the propriety of deciding
one of the most important issues of commercial law to
face the federal judicial system by leaps of logic, great
or otherwise. It is surely in order to point out, however,
that the policies do provide precisely what the court
below said they do not. They provide coverage, that is,
for injury or disease “which occurs during the policy
period.” Are there any words by which the insurers
could more clearly have stated in their agreements that
injuries which occurred outside the policy period would
not be covered?
C. IF THE OPINION BELOW IS PERMITTED TO
STAND, IT WILL GEOMETRICALLY INCREASE
THE CONFUSION. DELAY, AND EXPENSE
WHICH ALREADY CHARACTERIZE THE ASBES-
TOS LITIGATION IMBROGLIO.
As mentioned in the Petitions in Forty-Eight, in most
of the underlying actions the claimants sue not just one
but several asbestos manufacturers, usually from 15 to
20. Indeed, it is not at all uncommon for Forty-Eight
Insulations, Eagle-Picher Industries and Keene all to be
named as defendants in the same suit. Liberty, like the
other carriers, also insures several other companies which
appear with frequency in the underlying litigation.
The confusion already created by the holding in Forty-
Eight that all of an insured’s carriers are responsible
for every underlying case, on a proportionate basis, will
become intractable chaos if the opinion below stands.
That is, in any given underlying case, even though the
contract language between the parties is identical,
Liberty will be required (1) to handle the case as to
Eagle-Picher on the normal manifestation basis, (2) to
handle the case as to Forty-Eight Insulations on an ex-
posure basis, sharing proportionate responsibility to-
gether with Forty-Eight and its five other carriers, and
25
(3) to handle the case by itself as to Keene, if Keene
so demands,“ subject to allocating costs against Keene’s
other carriers in a separate proceeding. And what of
Liberty’s other insureds? As to them, Liberty may or
may not owe a defense at all. It may or may not be
required to participate in the defense, but together with
the insured’s other carriers. It may or may not be
required to deal with the insured as a contributing mem-
ber of the defense team in the underlying action. It
may or may not be required to defend the case by itself,
and then pursue a follow-up action against its insured’s
other carriers.
To make matters worse, the answers to the above
dilemmas may vary from circuit to circuit, as each lower
federal court, heedless of state law, forges its own solu-
tions to the asbestos litigation quagmire. The stakes in-
volved are so enormous that one can predict with near
certainty that so long as there is an argument to be
made, or a circuit in which to make it, the instant
coverage litigation will roll on with no end in sight.
The delay and confusion that this juridical extravaganza
will produce will serve no one well, but now no company
can afford not to litigate the coverage issue in any cir-
cuit where it has not been authoritatively decided, when
27 Judge Bazelon’s decision allows Keene to choose on a case by
case basis which insurer will defend it. “Of course, only the in-
surer that Keene selects will defend Keene.” Opinion, INA App.
at 32a. Once that insurer’s policy limits are exhausted, however,
Keene can switch to another. [Wie are not requiring that the
company that defends Keene also be the company whose policy
limits determine the extent to which Keene may be indemnified.”
Id. at n.38. Thus, under the decision below, even though the poli-
cies expressly give the insurer the right to control the defeuse of
any action which it is required to handle for the policyholder, Lib-
erty policy, III Joint App. at 1092, the insurers not “selected” by
Keene are permitted no say about the defense of the underlying
suit.
26
the variations among the federal courts’ interpretations
to date are so great.
Judge Bazelon’s opinion, moreover, creates other di-
lemmas wholly apart from the mere fact that it conflicts
with the opinions of the other courts which have ruled
on the coverage question. The District of Columbia Cir-
cuit agreed with Liberty that the result reached in
Forty-Eight would turn each underlying suit into “an
unwieldy spectacle.” Groups of defendants and their in-
surers would pursue disputes with each other, Opinion,
INA App. at 32a, n.38, while the plaintiff watched and
the jury lost all comprehension of who was arguing with
whom over what. The court below had no effective an-
swer to that problem, however. Its opinion merely at-
tempted to defer the problem in the hope that it would
go away.
The District of Columbia Circuit specifically directed
that the claimant’s underlying action should not be con-
fused or delayed by resolution of the coverage contro-
versy. Instead, Keene should simply point to an insurer
and that insurer should handle Keene’s defense, by itself.
After that, the parties must gird their loins for a second
round of litigation to determine how much each insurer
should contribute. “As we state below, the factual basis
of the insurers’ contract obligations may be developed
independently of the factual basis of the tort suit.” Opin-
ion, INA App. at 32a. The facts determined at the first
trial, moreover, will not be binding in the follow-up cov-
erage trial. “Any facts concerning the period of exposure
or the point of manifestation that are proved in an
underlying tort suit need not be legally dispositive of a
dispute among insurers concerning allocation of their
liability.” Opinion, INA App. at 34a. Under Forty-
Eight the prospect of more litigation as the parties at-
tempt to figure who owes what in the thousands of un-
27
derlying cases is a disturbing spectre.** The District of
Columbia Circuit has made that spectre a virtual
certainty.
CONCLUSION
Several parties and amici curiae in Forty-Eight and
Porter have acknowledged that in the ordinary diversity
case, because the issues are controlled by state law, “con-
flict among circuits is not of itself a reason for granting
a writ of certiorari.” Ruhlin v. New York Life Insur-
ance Co., 304 U.S. 202, 206 (1938). The reason that such
conflicts are normally of no moment to this Court, of
course, is that they are “merely corollary to a permis-
28 The burden which the federal courts are suffering under the
onslaught of asbestos litigation was commented upon just a month
ago by one court of appeals. “This is not the first, nor will it be
the last, asbestos case confronting this Court. At recent count,
there were over 3,000 asbestos plaintiffs in the Eastern District of
Texas alone. Migues v. Fibreboard Corporation, et al., No. 80-
1994 (5th Cir. December 7, 1981). In Migues, the Fifth Circuit re-
versed the district court’s unwarranted use of stare decisis in hold-
ing that asbestos products were unreasonably dangerous as a matter
of law. That district court has stated elsewhere that if it cannot
expand the traditional application of collateral estoppel and stare
decisis, asbestos litigation will “slow the Eastern District [of
Texas] to a standstill.” Hardy v. Johns-Manville Sales Corporation,
509 F. Supp. 1353, 1862 (E.D. Tex. 1981).
he problem is not limited to federal courts in Texas. Pleadings
in bestos cases fill five file cabinets in Room 924 of the McCor-
mack Post Office Building and they represent one of the largest—if
not the largest—pending blocks of litigation the U.S. District Court
of Massachusetts has ever seen. . . The backlog of cases is already
so great, and the pre-trial hearings so complex, that the conse-
quences for the legal system could be devastating when the suits
start coming to trial early next year.” Boston Herald American,
September 13, 1981.
sible difference of opinion in the state courts.” Id. at
206.
This is not the ordinary diversity case, however, and
it does not present the situation referred to in Ruhlin.
None of the federal courts which has grappled with the
asbestos coverage issue has relied upon, or even referred
to, any “permissible difference of opinion” in the state
rules of decision that apply. To the contrary, in Porter
the Fifth Circuit adopted, literally without discussion,
the “reasoning and result” of Forty-Eight, without even
touching upon the decisions in Louisiana, whose law sup-
posedly controlled. In Eagle-Picher, similarly, the district
court said that it made no difference whether the law
of Ohio, Illinois, or even England was applied to the
issues presented, since the general principles that gov-
erned were the same in all jurisdictions. 523 F. Supp.
at 116, n.5. As noted previously, the District of Co-
lumbia Circuit said the same thing here because “the
basic principles governing the interpretation of the in-
surance policies are the same” in Delaware, New York,
Pennsylvania, Connecticut, Massachusetts, and the Dis-
trict of Columbia, the states which might be involved.
Opinion, INA App. at 10-11, n.10.
For whatever reasons, all of the asbestos coverage
actions decided to date have been handed down by the
federal courts. Each of those courts has stated that its
decision is based upon the same basic principles. Liberty
presently is defending most of the asbestos cases against
Keene, together with those against Forty-Eight Insula-
tions, and Eagle-Picher. The asbestos claims against
each of these three companies now number approximately
11,000. Altogether, Liberty presently is defending ap-
proximately 70,000 asbestos claims on behalf of more
than three dozen insureds, and new claims are being
filed at a rate of 500 to 600 a month. These claims
involve more than 10,000 separate lawsuits. How ironic
it is, therefore, that after the application of the same
basic legal principles to exactly the same contract lan-
guage, Liberty has ben instructed by three federal courts
to deal with this ocean of claims in three completely in-
consistent fashions.
As Liberty’s and INA’s Petitions show, there is a well
established body of state law which can and should be
brought to bear on the questions these coverage actions
present. By and large, however, the federal courts have
felt free to ignore, or even openly to “reverse,” these
state rules on the basis that asbestos litigation is “unique.”
Unless this Court exercises its powers of supervision to
define what obligations Erie imposes upon the lower
federal courts in dealing with the maelstrom of asbestos
product liability litigation, further judicial turmoil and
delay are guaranteed.
Nothing could prove what is at risk more surely than
the idiosyncratic opinion rendered by the District of
Columbia Circuit here. That court ruled that it was not
bound to give the words of the contracts their ordinary
meaning. It ruled that it was not bound to rely upon the
medical evidence as to the diseases in question. It stated
that it was not obligated to follow state law. It held
that it could rule completely in favor of the insured
on every conceivable point even though it did not “rely
on any legal or factual aspect of Keene’s argument.”
Amended Opinion, App. A. It rejected the reasoning of
every other decision reached by the federal courts which
have struggled with the coverage question. A denial of
certiorari in this extraordinary case, therefore, will signal
to other manufacturers and to the insurance industry
that they must embark upon still more waves of coverage
litigation to determine whether the District of Columbia
Circuit’s novel views on these points will be followed by
the other circuits.
Petitioner prays that a writ of certiorari issue to re-
view the judgment and opinion of the United States
Court of Appeals for the District of Columbia.
Respectfully submitted,
GERALD V. WEIGLE, Ja.“
JOHN D. LUKEN
DINSMORE, SHOHL, COATES
& DEUPREE
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
* Counsel of Record for
Petitioner
FRANK W. GAINES, JR.
RoBERT L. HOEGLE
OLWINE, CONNELLY, CHASE,
O’DONNELL & WEYHER
Suite 890
1850 K Street, N.W.
Washington, D.C. 20006
(202) 659-4871
CHRISTOPHER C. MANSFIELD
Liberty Mutual Insurance
Company
175 Berkeley Street
Boston, Massachusetts 02117
(617) 357-9500
January 15, 1982
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1981
Civil Action No. 78-01011
No. 81-1179
KEENE CORPORATION
v.
INSURANCE COMPANY OF NORTH AMERICA, et al.
AETNA CASUALTY and SURETY COMPANY,
Appellant
And Consolidated Case Nos. 81-1180, 81-1181 & 81-1182
Filed Dec. 21, 1981
Before: BAZELON, Senior Circuit Judge, WILKEY and
WALD, Circuit Judges
ORDER
IT is ORDERED, by the Court, sua sponte, that the
Opinion for the Court filed by Senior Circuit Judge
Bazelon on October 1, 1981, in the above entitled cases
is hereby amended as follows:
Page 13, note 12: At the end of footnote, delete “the
reasonable expectations of Keene” and replace with
“the expectations that Keene could have reasonably
formed, as an objective matter, on the basis of the
policies’ language.”
2a
Page 14, note 15: Add, “See also p. 22 n.24.”
Page 22, note 24: Add, “One district court, however,
has adopted the manifestation theory. See Eagle-
Picher Industries v. Liberty Mut. Ins. Co., Civil
Actior No. 78-2739-Z (D. Mass., August 14, 1981).”
Page 23, note 25: Add at end, new paragraph:
“Keene did not raise the exposure-in-residence aspect
of its argument below. Because we do not rely,
however, on any legal or factual aspects of Keene’s
argument, see note 19 supra, we are not precluded
from deciding that exposure in residence triggers
coverage.”
Page 34, note 42: Add after second sentence: “We
recognize that burdens of proof are matters of state
law. Dick v. New York Life Ins. Co., 359 U.S. 437,
446 (1959). We believe, however, that this case is
so different from the cases in which the insured’s
burden of proof developed, that those cases provide
no authority for this case.
PER CURIAM
/s/ George A. Fisher
GEORGE A. FISHER
Clerk
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* No. 8121328
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Supreme Court of the United States
Ocroper Term, 1981
LIBERTY MUTUAL INSURANCE COMPANY,
Petitioner,
v.
KEENE CORPORATION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
MOTION OF
WALBROOK INSURANCE COMPANY, LTD., er At.
FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND
BRIEF OF AMICI CUR/AE
Grone MarsHatt Moriarty
Roves & Gray
Of Counsel: 225 Franklin Street
Jonx M. Harzineron, Ja. Boston, Massachusetts 02110
KrNNETR W. Enicksox Telephone: (617) 423.6100
—
PRESS OF GEORGE „. DEAN CO., BOSTON
No. 81-1328
In THe
Supreme Court of the United States
Ocrosrer TERM, 1981
LIBERTY MUTUAL INSURANCE COMPANY,
Petitioner,
v.
KEENE CORPORATION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
MOTION OF
WALBROOK INSURANCE COMPANY, LTD., et At.
FOR LEAVE TO FILE BRIEF AMICI CURIAE
Pursuant to Rule 36.1 of this Court’s rules, the following
insurance companies in the London insurance market and
underwriters at Lloyd’s, London, move for leave to file a
brief amici curiae, bound herewith, in support of the peti-
tioner: Walbrook Insurance Company, Ltd.; Southern
American Insurance Company; Mutual Re-Insurance, Ltd.;
St. Catherine Insurance Company, Ltd.; London and Edin-
burgh General Insurance Company, Ltd.; Dominion Insur-
ance Company, Ltd.; Yasuda Fire and Marine Insurance
Company (U.K.), Ltd.; Bellefonte Insurance Company;
Mentor Insurance Company (U.K.), Ltd.; Assicurazioni
Generali London; Stronghold Insurance Company, Ltd.;
National Casualty Company of America, Ltd.; Accident
and Casualty Insurance Company; Argonaut Northwest
Insurance Company; Slater, Walker Insurance Company,
ii
Ltd.; and John Basil Thomas Bird as a representative
underwriter representing certain underwriters at Lloyd’s,
London.
All of the foregoing companies and underwriters sup-
port the manifestation interpretation of coverage under
the policies of insurance here at issue.* With the permis-
sion of this Court, these companies and underwriters pre-
viously filed a brief as amici in Insurance Co. of North
America v. Forty-Eight Insulations, Inc. and Liberty Mu-
tual Insurance Co. v. Forty-Eight Insulations, Inc., Nos.
81-198, 81-199, cert. denied, 50 U.S.L.W. 3466 (U.S. Dee. 8,
1981), and they now seek this Court’s leave to file the
attached brief addressing the unique problems created by
the decision below.** While amici have received the consent
of certain of the parties to filing the attached brief, re-
spondent Keene Corporation and petitioner in No. 81-1197,
Hartford Accident & Indemnity Company, have declined
to consent.
As further detailed in the Statement of Interest in the
attached brief, the London Market has provided excess
insurance coverage for numerous manufacturers of
asbestos-containing products, and continues to offer such
coverage. The London Market also provides excess insur-
ance for a wide variety of other products liability claims.
The amount of such insurance, although not precisely
quantifiable, is certainly measured in hundreds of millions
of dollars.
* Other underwriters and companies in London espouse the ex-
posure theory; all underwriters and companies in London are here-
after sometimes referred to together, despite their differences in
interpretation, as “the London Market.”
** Two other petitions for writs of certiorari have been filed
which also seek review of this decision. Insurance Co. of N. Amer-
ica v. Keene Corp., No. 81-1012 (U.S. filed Nov. 30, 1981), and
Hartford Accident d Indem. Co. v. Keene Corp., No. 81-1197 (U.S.
filed Dec. 24, 1981).
The Court of Appeals’ new interpretation of the primary,
first-layer insurance policies will directly affect the point
at which primary coverage may be exhausted, and hence
the point at which claims may be made on the excess cover-
ages. Moreover, the Court of Appeals’ decision, although
purportedly based on state law, is in fact a novel formula-
tion of what can only be termed “general state common
law,”* applicable in the District of Columbia Circuit and
effectively uncorrectable in state court.
The uncertainties created by the Court of Appeals’ new
rule, which is contrary to settled principles of contract
interpretation and choice of law, will have a profound
impact on the products liability insurance provided by
amici at the excess levels. Therefore, for the reasons set
forth in this motion and in the statement of interest in
their brief, the manifestation underwriters and companies
in the London Market respectively request that this motion
to file the attached brief be granted.
January 15, 1982
Grorce MarsHaLt Moriarty
Ropes & Gray
225 Franklin Street
Boston, Massachusetts 02110
Telephone: (617) 423-6100
Attorney of Record
for Walbrook Insurance
Company, Ltd., et al.,
Manifestation Companies
and Underwriters in the
London Market
* Cf. Erie Railroad v. Tompkins, 304 U.S. 64, 78 (1938) (“There
is no federal general common law.”).
I.
III.
iv
TABLE OF CONTENTS
By Its Rerusa, To Ipentiry THE CONTROLLING
Srate Law, THe Court Or Apreats Has Improp-
ERLY InsuLatep Its State Law Howpincs From
Tue Court Or Appeats’ Incorrect Approacu To
THe DererMiInaTION Or State Law ReEcrEATES
Tue Pre-Erie Srruation, Permirrinc Corrs
Between FeperaL AND State Courts AND AMONG
r can cat bande
Tue Creation AND APPLICATION Or GENERAL
Strate Common Law By A Court Or Arras
VioLATEs CONSTITUTIONAL GUARANTEES Or Dur
Process AND Requires Correction By Tuis
9 Z: %%% „ „„ „ „
, AA K Ore p ede
a wre <a
Cases
PaGE
Aetna Life Insurance Co. v. Dunken, 266 U.S. 389 (1924) 13
Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981) 14
Bernhardt v. Polygraphic Co., 350 U.S. 198 (1956) . .5,10n.11, 11
Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076
(5th Cir. 1973), cert. l. denied, 419 U. 8.8 869 (1974) ..... 12n.15
Clay v. Sun Insurance Office, Ltd., 377 U.S. 179 (1964) 13
Commissioner v. Estate of Bosch, 387 U.S. 456 (1967) ... 10
Community National Bank v. Fidelity & Deposit Co., 563
e . 9 n. 10
Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3 (1975) 8 n.9
n Industries, Inc. v. Liberty Mutual Insurance
No. 78-2729-Z (D. Mass. Aug. 14, 1981), appeals
docketed, Nos. 81-1761, 81-1762, 81-1763 (1st Cir. filed
eee eee 15 n.21
Erie Railroad v. Tompkins, 304 U.S. 64 (1938) passim
Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940) .. 9&n.10
Gaither v. Myers, 404 F.2d 216 (D.C. Cir. 1968) ....... 6 n. 5
Griffin v. McCoach, 313 U.S. 498 (1941) ................ 7,8
Griffin v. McCoach, 116 F.2d 261 (5th Cir. 1940), rev'd,
D ] Bw 7
Guaranty Trust Co. v. York, 326 U.S. 99 (1945) 5, 9
Home Insurance Co. v. Dick, 281 U.S. 397 (193) 13
Insurance Co. of North America v. Forty-Eight Insula-
tions, Inc., 633 F.2d 1212 (6th Cir. 1980), cert. denied,
50 U.S.L.W. 3466 (U.S. Dee. 8, 1981) (Nos. 81-198 and
r ²ĩ—⅛ ¹—— ĩ˙¼—%ß˙ ] cc ˙7«˖§— codes cee chews’ 2 n. I, 7 n. 6,
Jannenga v. Nationwide Life Insurance Co., 288 F. 2d 169
D ͤũÜ—b: ↄ˙ a wes seeWe as es
Keene Corp. v. Insurance Co. of North America, No,
81-1248 5 C. Cir. Oct. 1, 1981), „ ty filed,
50 U.S.L.W. 3489 (US. Nov. 30 2 a 81-1012,
e passim
Klazon Co. Stentor Electric 6 Co., 313
U.S. 487 (1941) „ G Bul tid yds 0.06b «e Veck on ve pat 5, 8 n. 9
Pace
Lee v. Flintkote Co., 593 F.2d 1275 (D.C. Cir. 1979) 5 n.2
Lehman Brothers v. Schein, 416 U.S. 386 (1974 10 n.11
Lochner v. New York, 198 U.S. 45 (19050) 6
Migues v. Fibreboard Corp., 50 U.S. L. W. 2365 (5th Cir.
ö crs uss scs>dnaaadcumcnueneenn 12n.15
Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.
1981), cert. denied, 50 U.S.L.W. 3466 (U.S. Dee. 8, 1981)
r —— einen swan 7 n.6, 13
Richards v. United States, 369 U.S. 1 (1962) 14 n. 17
Samuels v. Doctors Hospital, Inc., 588 F.2d 485 (5th Cir.
c dp —·1¹¹; e 0onn ee 9 n. 10
SEC v. National Securities, Inc., 393 U.S. 453 (1969) 7 n. 7
Six Companies v. Joint Highway District No. 13, 311 US.
ee 9 n.11
i v. American Airlines, Inc., 547 F.2d 194 (D.C. Cir.
ETP eussvualgaaae een
Stoner v. New York Life Insurance Co., 311 U.S. 464
D d uae 9 n.11
Vance v. Universal Amusement Co., 445 U.S. 308 (1980) 10 n.11
Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538
D 0000000 nT 8 n. 10,
Walko Corp. v. Burger Chef Systems, Inc., 554 F.2d 1165
e cs eo 663 040 6deuceeeeee
Watson v. Employers Liability Assurance Corp., 348 US.
/ ͤ »» Ä—( 14
T y 4 ee —— 913.11
r 1c eee 10 n.11
CONSTITUTION AND STATUTES
nne 4,13
15 U.S.C. §§ 1011-1015 (197)))) - 7n.7
Orner AUTHORITIES
R. Leflar, True “False Conflicts,” Et Alia, 48 B.U.L. Rev.
rr oxsely< ccuced Go 6 1.5
Note, Unconstitutional Discrimination in Choice of *
of 6 6h eee 13
No.
In THE
Supreme Court of the United States
Octoser Term, 1981
LIBERTY MUTUAL INSURANCE COMPANY,
Petitioner,
V.
KEENE CORPORATION,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF AMICI CURIAE
INTEREST OF THE AMICI CURIAE
Amici, underwriters and companies in the London in-
surance market, provide excess or umbrella insurance cov-
erage for products liability claims. United States insureds
are among those to whom such coverage is provided, and
asbestos-related claims have been, and are, included within
the scope of the afforded coverages. Amici’s coverages,
however, are not limited to asbestos-related claims, but
inelude all other types of products liability claims. As a
general matter, these coverages are provided through
standard form policies which do not differ significantly
in language from the policies at issue in this case.
Amici previously filed, with this Court’s permission, a
brief urging review of the Forty-Eight decision.’ The
consequences of that decision, from amici’s perspective,
were extremely serious. The Court of Appeals’ decision
in Keene, however, increases the difficulties for amici expo-
nentially, while at the same time leaving no effective re-
dress except action by this Court.
Quite simply, the Court of Appeals’ rule of decision may
enormously expand insurers’ potential liabilities at all
levels, and certainly will increase the uncertainties under
which insurers must do business. The Court of Appeals’
interpretation will affect the point at which primary cov-
erages are exhausted and excess coverages come into play.
The court’s linguistic interpretation, moreover, will in all
likelihood apply not only to the primary policies which
were before it, but also to the excess or umbrella policies
like those of the amici: courts will properly be reluctant to
interpret excess policies in a way inconsistent with an in-
terpretation previously given to substantially the same
language in primary policies. Further, as is clear from
Judge Wald’s concurrence, the Court of Appeals thinks its
rationale equally applicable to other long-term disease
claims. The scope of coverage at both the primary and the
excess levels, therefore, may be profoundly altered by the
decision below, not only for asbestos-related claims, but for
other products liability claims.
Because interpretation of the insurance contracts at is-
sue in this diversity case is governed by state law, an
erroneous decision by one federal court could ordinarily
be corrected in another case by the courts of the particular
state whose law was at issue. Moreover, conflicts among
federal courts of appeals over state law questions could
Insurance Co. of N. America v. Forty-Eight Insulations, Inc.,
No. 81-198, and Liberty Mut. Ins. Co. v. Forty-Eight Insulations,
Inc., No. 81-199, cert. denied, 50 U.S. L. W. 3466 (U.S. Dee. 8, 1981).
3
also, eventually, be resolved by state courts, paramount on
questions of their own law. In the present instance, how-
ever, the Court of Appeals has effectively foreclosed that
approach by refusing to determine which state’s law con-
trols the instant contracts; rather, it has fashioned a new
general state common law of insurance.
In the conduct of its business, and especially given its
unique position in the provision of excess insurance cov-
erage, the London Market necessarily relies on consistent
application of settled principles of contract interpretation
and choice of law. The Court of Appeals’ methodology,
with its creation of general principles of state law as a
basis for departing from particular state precedents, now
introduces the possibility of uncorrectable conflicts among
the courts of appeals. Such a result promotes the evils of
forum shopping and precludes sound risk analysis neces-
sary for the orderly transaction of business by insurers
and insureds.
Moreover, this decision involves matters of great public
importance. While the case is, in its strictest sense, a
dispute between private parties, the magnitude of the
questions decided and the number of persons affected pose
significant public questions. There are few cases presented
to the federal judiciary which have such substantial impact
on so many interests, and which also have such a funda-
mental effect on the shape of the law itself.
SUMMARY OF ARGUMENT
When a federal court of appeals errs in interpreting
federal law, correction is available in this Court. When a
federal court of appeals errs in interpreting state law, cor-
rection may in theory be provided by this Court, but in
practice is usually obtained from the courts of the state
4
itself. Such correction is only possible, however, if the
federal court identifies with precision which state’s law it
purports to apply. Failure to do so effectively destroys
any opportunity for correction or redress, and when the
results under the law of at least one of the affected states
would be to the contrary, requires review by this Court.
See infra pp. 5-9.
Second, the Court of Appeals’ disregard of specific prece-
dents from the states most concerned with these contracts,
and its reliance instead on “basic principles” of contract
law common to many states, is contrary to the primary obli-
gation of a federal court in diversity to act as a court of
the state in which it sits. By its formulation of a new
general state common law, the Court of Appeals has also
created uncorrectable conflicts among the federal courts
of appeals over interpretation of these basic principles.
The result not only defeats the policy of uniform treatment
of litigants in state and federal courts, but also leads to
forum shopping among the federal courts. This creation
of general state common law is an unprecedented and
unjustified expansion of federal judicial authority in diver-
sity cases, and it requires this Court’s supervision. See
infra pp. 9-13.
Finally, the Court of Appeals’ decision to select and
apply its own novel formulation of general common law
to these insurance contracts is constitutionally defective.
The due process clause of the Fourteenth Amendment to
the Constitution requires sufficient and substantial con-
tacts with the state whose law is chosen and applied. In
this instance, however, the Court of Appeals chose to apply
general state common law rather than the law of those
states with substantial contacts to these insurance con-
tracts. Such a constitutionally deficient method of decision
requires correction before it is relied upon in other pro-
gressive disease cases. See ivjra pp. 13-15.
5
ARGUMENT
I. By Its Rerusat To Ipentiry Tue ConTrRo.unc STATE
Law, Tue Court Or Appears Has Improperty INsv-
LATED Its State Law Horns From Correction.
In a case like the present one, governed by Erie Railroad
v. Tompkins, 304 U.S. 64 (1938), a federal tribunal must
apply the choice of law rules as well as the substantive
law of the state where it is sitting, Karon Co. v. Stentor
Electric Manufacturing Co., 313 U.S. 487 (1949), acting
as though it were “in substance, ‘only another court of the
State.“ Bernhardt v. Polygraphic Co., 350 U.S. 198, 203
(1956), quoting Guaranty Trust Co. v. York, 326 U.S. 99,
108 (1945). Although the Court of Appeals acknowledged
that New York, Pennsylvania, Connecticut, Delaware,
Massachusetts, and the District of Columbia had jurisdic-
tional contacts with the parties, the court concluded that
it was not necessary to identify whether the law of these —
or any other — jurisdictions would govern its decision, nor
to put itself in the shoes of any state court.“ App. 10a-lla
Although the Court of Appeals for the District of Columbia
Circuit maintains that it is not required by Erie to apply the local
law and choice of law rules of the District of Columbia courts in
diversity cases, it has chosen to do so. Lee v. Flintkote Co., 593
F.2d 1275, 1278 n.14 (D.C. Cir. 1979). The policy is to preclude
unfairness resulting from material differences between cases
brought in the local courts of the District and those brought in the
federal courts. Walko Corp. v. Burger Chef Systems, Inc., 554
F.2d 1165, 1171 (D.C. Cir. 1977). In the Distrie the relationship
of the federal to the local judiciary is, therefore, “akin to that
historically existent in the states.” Steorts v. American Airlines,
Inc., 647 F.2d 194, 196 (D.C. Cir. 1981).
The Court of Appeals noted that neither the District Court nor
the parties had addressed the issue of the controlling law, but that
it was “unnecessary, however, to reach the issue of the applicable
state law.” App. 12a n.10, slip op. at Fn. 3. n.10. Amici here had
raised the issue in their brief to the Court of Appeals. Brief for
Amizi at 25-28. Moreover, that court has previously noted its
power to take judicial notice of applicable state law or to remand
n.10*, slip op. at Fn.3. n.10. The following rationale was
given:
“We find it unnecessary, however, to reach the issue of
the applicable state law. . .. [NJone of the Jaws of these
states gives us specific guidance in resolving this case,
and the basic principles governing the interpretation of
insurance policies are the same in each state. There is
thus no conflict of law. There is what some have termed
28 conflict.“ App. 10a-1Ia n. 10, slip op. at Fn.3.
n. 10.“
A federal court’s Erie responsibilities cannot be dis-
charged, however, by the device of reducing all state con-
tract laws to general rules of construction, and then assert-
ing that, at such a “basic” level, there is no conflict. As
Justice Holmes said long ago in a different context, “Gen-
eral propositions do not decide concrete cases.” Lochner v.
New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
In the present instance, the Court of Appeals’ refusal to
identify those states with actual interests in these con-
tracts, its failure to consider the laws of those states with
potential interests, and its decision not to identify the con-
trolling substantive law, all violate the holdings of this
for its consideration where the matter was not adequately dealt
with by the trial court. Jannenga v. Nationwide Life Ins. Co., 288
F. 2d 169, 172 (D.C. Cir. 1961).
* Appendix references are to the appendix to the petition of
Insurance Company of North America, No. 81-1012.
Professor Leflar, who is cited as authority for the court’s con-
clusion that there is a “false conflict,” defines that situation as a
case “in which the laws of the two or more involved jurisdictions
are the same, or would produce the same result in the case being
litigated.” R. Leflar, True “False Conflicts,” Et Alia, 48 B. U. L.
Rev. 164, 171 (1968). The Court of Appeals concluded only that
the laws of these six jurisdictions did not provide “specifie guid-
ance,” and that, on the most general level, the “basic principles
governing the interpretation of insurance policies” were the same.
This is no substitute for the identity of controlling law envisioned
by Professor Leflar. See, by way of contrast, Gaither v. Myers,
404 F.2d 216 (D.C. Cir. 1968).
7
Court and effectively permit the Court of Appeals to create
general state common law.
The obligations of a federal court in diversity to identify
and apply the law of the appropriate state forum cannot be
circumvented by a refusal to choose controlling law.“ This
is particularly true with insurance contracts which have
historically been controlled by state substantive law.“ In
Griffin v. McCoach, 313 U.S. 498 (1941), this Court reviewed
a decision by the Fifth Circuit on the applicability of Texas
law to a foreign insurance contract. The court below had
concluded “that it is immaterial in so far as the decision
of this case is concerned, whether the law of Texas or the
law of New York be applied.” Griffin v. McCoach, 116 F.2d
261, 264 (5th Cir. 1940), rev’d, 313 U.S. 498 (1941). This
Court reversed, holding that the federal courts below
[Were applying rules of law in a way which yf may
not have been consistent with Texas decisions. Likewise
it is for Texas to say whether its public policy permits
a beneficiary of an insurance policy on the life of a Texas
citizen to recover where no insurable interest in the de-
cedent exists in the beneficiary. . . . But this is something
»The Sixth Circuit in Insurance Co. of V. America v. Forty-
Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), cert. denied,
50 U.S.L.W. 3466 (U.S. Dee. 8, 1981), recognized the need to iden-
tify the controlling law, and while amici believe the decision incor-
rectly applied the relevant state law of New Jersey and Illinois,
they do not fault the identification of the controlling law in that
ease. The Fifth Circuit in Porter v. American Optical Corp., 641
F.2d 1128, 1144-46 (5th Cir. 1981), cert. denied, 50 U.S.L.W. 3466
(U.S. Dee. 8, 1981), assumed that the contracts were controlled by
the law of “Louisiana or . . . a state where the law would be the
same as Louisiana,” but it did not discuss any state authority and
based its exposure interpretation exclusively on Forty-Eight.
* Regulation of the business of insurance is particularly a state
function. MeCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (1976).
Moreover, this Court has expressly recognized that t] be relation-
ship between insurer and insured, the type of policy which could
be issued, its reliability, interpretation, and enforcement — these
[are] the core of the business of insurance.” SEC v. National
Securities, Inc., 393 U.S. 453, 460 (1969) (emphasis supplied).
to be decided according to Texas decisions, to none of
which the opinion [below] refers. . The decision must
be reversed and remanded to the Cireuit Court of Ap-
peals for determination of the law of Texas as applied to
the circumstances of this case.” 313 U.S. at 503-04.
In the same way, the Court of Appeals here has not satis-
fied its federal obligation to identify and apply the ap-
propriate state law. Indeed, the Court of Appeals ex-
pressly stated that it found no need to accept that respon-
sibility, App. 10a n.10, slip op. at Fn.3. n.10, and instead
assumed that it was empowered to establish a general law
of contract interpretation with ramifications far beyond the
four corners of the decision.*
Unless the corrective supervision of this Court is ap-
plied,’ the Court of Appeals’ erroneous method of decision
will effectively preclude correction of its erroneous sub-
stantive holdings. Unlike the usual instance in which non-
parties like amici will eventually be able to obtain — per-
haps by way of declaratory judgment — a state law decision
in the courts of the appropriate state, insurers here are
left without such a remedy.’ Where the Court of Appeals
In her separate opinion, Judge Wald notes that the majority's
approach “not only provides a flexible formula for adjudicating the
legal issues associated with asbestos-related diseases, but also sets a
useful precedent for other product-exposure injuries, as of yet
unknown in origin.“ App. 43a, slip op. at 2 (Wald, J., concurring
in part).
More recently, this Court has reminded the federal courts of
their obligation to apply local law in diversity actions. Where the
Fifth Cireuit had relied on federal interests and policies to hold
that the laws of the forum state should apply to a tort action based
on a death in Cambodia, this Court vacated the judgment based on
Klazon and remanded with the direction that exceptions based on
federal policy concerns should not be engrafted onto state law.
Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3 (1975) (per
curiam ).
1 A federal court in diversity is to apply the “then controlling
decision of the highest state court.” Vandenbark v. Owens-Illinois
9
bases its decision on general state common law and refuses
to act as the court of a state applying a particular state’s
laws, it insulates the decision from correction.
Even if amici’s search for state redress was directed to
each of the six jurisdictions mentioned by the Court of
Appeals, the federal concern raised by the decision cannot
realistically be resolved by the highest courts of those
jurisdictions. While each court can indeed correct mis-
applications of the substantive law of its own state, it can-
not correct the Court of Appeals’ perception and applica-
tion of general state common law; only authoritative deter-
minations from all involved states could do that. The
result creates a judicial dilemma with serious implications
for federal-state relations, and for litigants in the federal
system.
Il. Tur Court Or Appears’ Incorrect Aprproacu To Tur
DETERMINATION Or State Law Recreates THe Pre-
Erie SirvatTion, Permittinc ConFuicts BETWEEN Fep-
ERAL AND State Courts AND Amonc Feperat Circuits.
In a diversity action, the method by which a federal
court ascertains state law is, of course, a federal matter,
subject to supervision by this Court. See, e.g., Fidelity
Union Trust Co. v. Field, 311 U.S. 169, 177-180 (1940)
(Hughes, C. J.).“ Under Guaranty Trust Co. v. York, 326
Glass Co., 311 U.S. 538, 543 (1941) (emphasis supplied). Where
state law applied by a lower federal court to a diversity case is
corrected by the relevant state courts during an appeal period,
the federal judgment must be reversed. E. g., Samuels v. Doctors
Hosp., Inc., 588 F.2d 485 (5th Cir. 1979); Community Nat’l Bank
v. Fidelity & Deposit Co., 563 F.2d 1319 (9th Cir. 1977).
The correct approach to the ascertainment of state law was
established first by Field and other cases decided during the same
Term, see Six. Cos. v. Joint Highway Dist. No. 13, 311 U.S. 108
(1940); West v. Am. Tel & Tel. Co., 311 U.S. 223 (1940) ; Stoner v.
10
U.S. 99, 108 (1945), a federal court in diversity acts as
another court of the state, and the law applied is derived
from the sources in that jurisdiction. To that end,
“(T]he State’s highest court is the best authority on its
own law. If there be no decision by that court then fed-
eral authorities must apply what they find to be the state
law after giving ‘proper regard’ to relevant rulings of
other courts of the State. In this respect, it may be said
to be, in effect, sitting as a state court.” Commissioner v.
Estate of Bosch, 387 U.S. 456, 465 (1967).
The Court of Appeals in this case impermissibly failed
to act as though it was a state court, bound to apply the
law of that jurisdiction. Although the court observed that
the laws of at least six jurisdictions might arguably apply,”
it purported to rely on none of them. Rather, the court
referred only to “basic principles governing the interpre-
tation of insurance policies“ which it found common to all
six jurisdictions. App. IIa n.10, slip op. at Fn. 3a. n.10.
New York Life Ins. Co., 311 U.S. 464 (1940); Vandenbark v.
Owens-Illinois Glass Co., 311 U.S. 538 (1941), and is summarized
in Bernhardt v. Polygraphic Co., 350 U.S. 198, 203-05 (1956).
The principles of governing ascertainment of state law, however,
should be distinguished from the mechanics by which such law is
determined. As to the latter, this Court has never thought it
necessary or appropriate to offer instructions. See, e.g., Lehman
Bros. v. Schein, 416 U.S. 386, 394 (1974) (Rehnquist, J., con-
curring). As to the former, this Court continues to cite the line
of cases summarized in Bernhardt. See, e.g., Vance v. Universal
Amusement Co., 445 U.S. 308, 316 n.14 (1980) Wolston v. Reader's
Digest Ass’n Inc., 443 U.S. 157, 160-61 n.1 (1979).
While it is certainly possible that six individual contracts with
identical terms could be governed by the law of six different states,
it is not possible for any single contract to be so governed. More-
over, the court virtually ignored the law of the six jurisdictions
which had been mentioned and cited no authority for some of its
most important holdings. See, e.g., App. 26a-29a, slip op. at 19-23
(coverage to insured for periods when it elected not to be insured).
48 Citing commentators but not case law, the court outlined two
principles which apparently controlled its various holdings: (i)
11
This method of decision violated the obligations of a
federal court under the principles established by Erie. The
Court of Appeals acknowledged that decisions from at least
one of these six jurisdictions — New York — addressed the
interpretation of insurance contracts where coverage for
disease claims was at issue, and it recognized that these
cases reached a result contrary to the court’s own view.
App. 16a, 19a-20a & n.17, slip op. at 9-10, 12-13 & n.17 at
Fn.4.-5. Rather than follow those decisions, however, the
court chose to impose its own contrary views of general
state common law.“
Disregard of state authority by a federal court in diver-
sity has been allowed by this Court only in certain identi-
fiable circumstances. Recognized exceptions include:
. .. confusion in the [state] decisions, . . . developing
line of authorities that casts a shadow over the estab-
lished ones, . . . dicta, doubts or ambiguities in the opin-
ions of [state] judges on the question, .. legislative de-
velopment that promises to undermine the judicial rule.”
Bernhardt v. Polygraphic Co., 350 U.S. 198, 205 (1956).
indemnity is the dominant purpose of insurance policies; and (ii)
insurance is a purchase for a premium of certainty against loss.
App. 1la-12a, slip op. at 7. The court also noted that ambiguities
are to be construed in favor of the insured, but it chose not to rely
on that principle. App. 12a, slip op. at 8. It further noted that
the reasonable expectation of the insured should be a “guide”
to “discerning the principles embodied in the policies.” Id.
Elsewhere, the court cites the expectation of the insured as a gen-
eral principle relating to a contract of adhesion. App. 13a n.12,
slip op. at Fn.3b. n.12. This principle is then cited as a “base”
for the interpretation of the policies. Id.
„Although the court observed that health care precedents are
“more relevant to this case” than other authority, it declined to
follow New York authority because the problem. . . is to determine
when a disease begins for coverage purposes.” App. 16a n.17, slip
op. at Fn.5.-6. n.17. The definition of disease and determination
of coverage, however, were precisely the issues to be resolved under
the policies considered in Keene and were the same issues passed
on by New York courts.
12
Although none of these justifications was present in this
case, the Court of Appeals nevertheless made a series of
unprecedented rulings: (i) coverage exists under both
manifestation and exposure interpretations (as well as its
own judicially created doctrine of exposure in residence) ;
(ii) pro rata allocation of liability among insurers is pre-
cluded; (iii) coverage will be provided for the insured
during periods when it had voluntarily elected not to be
insured; and (iv) the insured will be sole arbiter of the
policies which shall provide coverage for given injuries.
The necessary corollary of the judgment is that New York,
Pennsylvania, Delaware, Connecticut, Massachusetts, and
the District of Columbia would have ignored their prece-
dents and each dramatically revised its decisional law of
insurance to reach these results.“
In fact, of course, the Court of Appeals has simply sub-
stituted its own notions of policy for the law already estab-
lished by the state courts’ decisions. Moreover, because the
Court of Appeals’ decision is based on a federal formula-
tion of general state common law, it cannot be corrected by
the subsequent decision of a particular state court. That
result fosters two judicial evils which require this Court’s
attention.
1 Insofar as the Court of Appeals’ decision rests on the view
that liability on insurance contracts should parallel liability to the
tort claimants themselves under the principles of Borel v. Fibre-
board Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973), cert.
denied, 419 U.S. 869 (1974), there appears to have been a complete
failure to analyze state law. Even if Borel stated the applicable
law of all six jurisdictions identified by the Court of Appeals,
which it does not purport to do, and even if the law of those six
jurisdictions covered the underlying tort claims, which may or
may not be the case, there is still no authority for the proposition
that the law of these six jurisdictions would import tort principles
into the area of insurance contract interpretation. The Fifth Cir-
cuit itself has recently made it clear that Borel was not intended to
enunciate sweeping principles of tort liability. Migues v. Fibre-
board Corp., 50 U S. L. W. 2365 (5th Cir. Dee. 7, 1981). A fortiori,
Borel is not a basis for transforming individual insurance contracts
into assumptions of group liability.
13
First, the Court of Appeals’ approach is in derogation
of the Erie command that uniform state substantive law
shall apply in state and federal courts. If a federal court
in diversity proceedings may disregard its obligation to act
as a court of the state where it sits, and if it is free to make
general state common law, different substantive law will
apply in each forum. Because the federal formulation
will be uncorrectable in a state court, forum shopping will
follow.
Second, the Court of Appeals’ decision creates unaccept-
able inconsistencies within the federal system. Under the
Keene decision, the Court of Appeals’ rule of indemnity and
defense under any contract interpretation will apply to all
actions filed in the District of Columbia. At the same time,
the decision of the Fifth Cireuit in Porter v. American
Optical Corp., 641 F.2d 1128 (5th Cir. 1981), cert. denied,
50 U.S.L.W. 3466 (U.S. Dee. 8, 1981), which also failed to
look to the applicable state law, will provide litigants with
an exposure interpretation. Consequently, the methodol-
ogy of the decision — which can only be corrected on cer-
tiorari — also leads to the evil of forum shopping among
the federal courts.
III. Tun Creation AND AppLicaTION Or GENERAL STATE
Common Law By A Court Or Appgeats Viol Ars Con-
STITUTIONAL GUARANTEES Or Due Process AND Re-
qumes Correction By Tus Court.
Application of state law is subject to constitutional
supervision under the due process clause of the Fourteenth
Amendment. Home Insurance Co. v. Dick, 281 U.S. 397
(1930); Aetna Life Insurance Co. v. Dunken, 266 U.S. 389
(1924). See Note, Unconstitutional Discrimination in
Choice of Law, 77 Colum. L. Rev. 272 (1977). Where a
federal court sits in diversity, its choice and application of
state law is subject to review under the same constitutional
limitations. Clay v. Sun Insurance Office, Ltd., 377 U.S. 179
14
(1964) (choice of Florida over Illinois law by federal
courts); Watson v. Employers Liability Assurance Corp.,
348 U.S. 66 (1954) (diversity case interpreting products
liability insurance).
The applicable constitutional standards were restated by
this Court last Term in Allstate Insurance Co. v. Hague, 449
U.S. 302 (1981) (life insurance contracts). Speaking for a
plurality,“ Justice Brennan observed:
[Flor a State’s substantive law to be selected in a con-
stitutionally permissible manner, that State must have a
significant contact or significant aggregation of contacts,
creating state interests, such that its choice of law is
— 7 1 arbitrary nor fundamentally unfair.“ 449 U.S.
12-13.
The Court of Appeals’ reliance on general state common
law is constitutionally suspect under this test, and the deci-
sion should be reversed before this method is relied on in
other progressive disease cases.
The Court of Appeals not only declined to analyze state
contacts with these insurance contracts, but also expressly
refused to select and apply the law of any state.“ Instead,
the court created its own detailed scheme of substantive
insurance law from its general notion that an insured is
always entitled to be indemnified. To satisfy the constitu-
tional analysis of contacts and determination of state in-
terest under Hague, however, a federal court in diversity
1 Justice Brennan’s opinion was joined by Justices White,
Marshall, and Blackmun. Justice Stevens wrote a separate opinion
concurring in the judgment. Justice Powell, joined by the Chief
Justice and Justice Rehnquist, filed a dissent arguing, inter alia,
that there were insufficient contacts to satisfy constitutional
requirements. Justice Stewart did not consider or participate in
the decision.
* While more than one state “may have sufficiently substantial
contact with the activity in question” to satisfy constitutional re-
quirements, the forum state must choose the law it would apply
to the case “by analysis of the interests possessed by the States
involved.” Richards v. United States, 369 U.S. 1, 15 (1962).
15
must act as the court of a state and identify the state sub-
stantive law relied upon in deciding a given issue. If the
approach taken by the Court of Appeals is allowed to stand,
federal courts in diversity will be empowered to announce
general state common law without regard to the founda-
tions and fundamental fairness of their decisions.
Where a federal court declines to identify the governing
law and employs this mode of analysis to support its con-
clusions, end where the issues presented affect long-recog-
nized individual state interests in the interpretation of
insurance contracts,“ a question of serious constitutional
dimension is raised. Where that same court reaches a re-
sult which provides coverage to the insured for periods
where it elected not to be insured“ — and cites no authority
whatsoever in support of that result“ — it has taken prop-
erty without due process of law and created a profoundly
troubling precedent for other litigants in the federal
system.”
‘8 See supra note 7.
10 See supra p. 10 & note 12.
20 The only authority noted is Insurance Co. of V. America v.
Forty-Eight Insulations, Inc., supra note 5, a decision which ex-
pressly refused to follow this reasoning. The Sixth Circuit declined
to reach this conclusion, as Judge Bazelon notes, because this
interpretation would entitle the insured to benefit from coverage
it never bought. App. 28a & n.30, slip op. at 21 & n.30 at Fn.11.
* Judge Wald has already suggested that the Court of Appeals’
common law “formula” will be a useful precedent for other pro-
gressive disease cases. See supra note 8. Indeed, Keene is already
being cited by litigants in other courts of appeals as the only
proper analysis of asbestos-related insurance coverage questions.
E. g., Brief for Plaintiff-Appellant at 27-30, Eagle-Picher Indus.,
Inc. v. Liberty Mut. Ins. Co., No. 78-2739-Z (D. Mass. Aug. 14,
1981), appeals docketed, Nos. 81-1761, 81-1762, 81-1763 (1st Cir.
filed Sept. 25, 1981).
16
CONCLUSION
For the foregoing reasons, as well as those set forth in
the petition of Liberty Mutual Insurance Company, amici
urge this Court to grant the petition.
Respectfully submitted,
Grorce MarsHaLu Moriarty
Ropes & Gray
Of Counsel: 225 Franklin Street
John M. Harrington, Jr. Boston, Massachusetts 02110
Kenneth W. Erickson Telephone: (617) 423-6100
Attorney for Walbrook
Insurance Company,
Ltd., et al.,
Manifestation Companies
and Underwriters in the
London Market
ug Noy
84a Uofned
Office - Supreme Court, Us
ED
FIL
No. 81-1328 FEB 26 1992
IN THE pales
Supreme Court of the United States =
OCTOBER TERM, 1981
LIBERTY MUTUAL INSURANCE COMPANY,
* Petitioner
KEENE CORPORATION,
Respondent
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
REPLY BRIEF OF PETITIONER
LIBERTY MUTUAL INSURANCE COMPANY
GERALD V. WEIGLE, In.“
DINSMORE, SHOHL, COATES
& DEUPREE
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
* Counsel of Record for
Petitioner Liberty Mutual
Insurance Company
FRANK W. GAINES, JR.
RoBert L. HOEGLE
OLWINE, CONNELLY, CHASE,
O’DONNELL & WEYHER
Suite 890
1850 K Street, N.W.
Washington, D.C. 20006
(202) 659-4871
CHRISTOPHER C. MANSFIELD
Liberty Mutual Insurance
Company
175 Berkeley Street
Boston, Massachusetts 02117
(617) 357-9500
February 26, 1982
WILSON - Eres Printine Co. Inc. - 789-0096 - WASHINGTON. D.C. 20001
TABLE OF AUTHORITIES CITED
Cases Page
Commercial Union Insurance Co. v. Pittsburgh
Corning Corp., No. 81-2129 (E.D. Pa. Dec. 4,
1981) 5
Davis v. Chevy Chase Financial Ltd., —— F.2d
——, No. 80-1297 (D.C, Cir. Oct. 15, 1981) 9
General Accident Fire & Life Assurance Corp. Ltd.
v. Akzona, Inc., 622 F.2d 90 (4th Cir. 1980) ........ 9
General Dynamics Corp. v. Benefits Review Board,
565 F.2d 208 (2d Cir. 1977) .... 6
6
Grain Handling Co., Inc. v. Sweeney, 102 F.2d 464,
466 (2d Cir. 1939) **
Reiser v. Metropolitan Life Insurance Co., 262
A.D. 171, 28 N.Y.S.2d 283 (1941), aff'd mem.,
289 N.Y. 561, 43 N. E. 2d 534 (1942) .................. 6
Travelers Insurance v. Cardillo, 225 F.2d 137 (2d
Cir.), cert. denied, 350 U.S. 9 (195557 6
Urie v. Thompson, 337 U.S. 163 (194 7
IN THE
Supreme Court of the United States
OCTOBER TERM, 1981
No. 81-1328
LIBERTY MUTUAL INSURANCE COMPANY,
7 Petitioner
KEENE CORPORATION,
Respondent
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
REPLY BRIEF OF PETITIONER
LIBERTY MUTUAL INSURANCE COMPANY
Keene’s brief in opposition contains two serious factual
misrepresentations which cannot be permitted to stand
uncorrected. In addition, that brief and the brief in oppo-
sition of the Armstrong amici curiae misstate the issues
raised by the petitions in several respects.
1. Nothing is more directly pertinent to the instant
litigation than the insuring agreement in the policies
before the Court, so it is understandable that Keene
should begin its brief in opposition with a quotation of
that language. Unfortunately, however, by artful employ-
ment of ellipses and selective quotation, Keene has omitted
the language most salient to the dispute. In doing so it
has launched its entire argument from the wrong foot,
basing it upon a fictitious agreement which none of the
parties entered into.
Stating that the insuring clause of the policies sold to
Keene “clearly provides coverage for Keene’s legal liabil-
ity for ‘all sums’ which are paid to the claimants in the
underlying asbestos lawsuits,” Keene “quotes” the per-
tinent policy language as follows:
[t]he [insurance] company will pay on behalf of the
insured [policyholder] all sums which the insured
shall become legally obligated to pay as damages be-
cause of bodily injury.. . to which this insurance
applies, caused by an occurrence, and the company
shall have the right and duty to defend any suit
against the insured [policyholder] seeking damages
on account of such bodily injury ... even if any of
the allegations of the suit are groundless, false or
fraudulent...
Keene brief at 2-3. The phrases in italics are defined
terms. What Keene attempts to obscure is that the bodily
injury to which the policy applies is specifically defined
as “bodily injury, sickness or disease sustained by any
person which occurs during the policy period, including
death at any time resulting therefrom.” Joint App. I at
75; emphasis added. The court of appeals at least
referred to the underlined language, though it rendered
it nugatory by holding that “injury” that occurred in
1980 is covered by a policy written in 1950. Slip opinion
at 6. Keene omits this critical language altogether.
2. In support of its argument that this case concerns
matters of state law not susceptible of resolution by this
Court, Keene makes a statement that might be compelling,
if it were true. Keene states that, “In its certiorari peti-
tion in Forty-Eight, Liberty argued (at 6-7) that the
asbestos insurance coverage issues presented a ‘matter of
contract interpretation as to which this Court’s exercise
of its certiorari power would not be appropriate.’” Keene
brief at 6. Not only has Keene left out the most impor-
3
tant part of the sentence supposedly quoted, however, but
here it has not even been forthright enough to indicate by
ellipsis that it is omitting something. What Liberty ac-
tually said in the sentence referred to was that certiorari
would not be appropriate “but for one fact.” The next
sentence in Liberty’s petition in Forty-Eight identifies
that fact as the Sixth Circuit’s impermissible reversal of
the burden of proof applicable to insurance coverage dis-
putes under state law. That same improper reversal of
the burden of proof flaws the District of Columbia Cir-
cuit’s opinion here, in addition to its other errors of law.
8. Both Keene and the Armstrong amici spend much
time subduing a straw man. They argue that petitioners
are “asking this Court to federalize insurance contract
interpretation questions,” or “to undertake the unusual
step of enunciating a ‘nationwide’ rule on a non-federal
issue.” Keene brief at 5, Armstrong brief at 6. These
arguments turn things inside out.
To the contrary, Liberty contends that the principal
shortcoming of the District of Columbia Circuit’s opinion
is that it eschewed any meaningful consideration of the
state precedents which bear on the issues. Instead, the
court said that it was “unnecessary” to consider state
authorities in any meaningful fashion and reduced the
insurance law of fifty states to a meaningless generality,
that insurance policies have a “dominant purpose of in-
demnity.” Slip opinion at 10, n. 10, 12. By ignoring the
ordinary meaning rule followed in New York, and refus-
ing to mention, much less follow, state law decisions de-
termining when injury or disease occurs for insurance
purposes, it is the court below which “federalized” the
issue. Slip opinion at 16, n. 17.
4. The efforts of those opposing certiorari to paper over
the complete conflict in the federal courts on the asbestos
coverage issue are unavailing. Those decisions are flatly
4
irreconcilable, and their differences of analysis and result
can by no stretch of the imagination be attributed to any
differences perceived in the state law being applied. The
problem is that the circuit courts did not rely on state
law in this and other crucial determinations.’
In Forty-Eight, the Sixth Circuit cited New Jersey and
Illinois cases that insurance policies must be broadly con-
strued so that ambiguities are resolved in favor of the
insured; otherwise that court did not rely upon any deci-
sional law from those states to support its result. In
Porter, the Fifth Circuit was supposedly governed by
Louisiana law, but in adopting the reasoning and result
of Forty-Eight the court did not even consult, much less
apply, the law of that state. Nor can it be argued that
the Court below relied upon state law. Indeed, it at-
tempted to justify its failure to do so by claiming that
“Tnjone of the laws of these states gives us specific guid-
ance in resolving this case. (emphasis supplied).
Instead, it relied upon what it called “basic principles gov-
erning the interpretation of insurance policies.” Slip
opinion at 11, n. 10.
There is only one proposition which all of the decided
federal cases will support. That is that Keene and the
Armstrong amici are wrong when they argue that the
hopeless split of opinion among the federal courts results
from any permissible difference in state substantive law
being applied.
It is equally impossible to harmonize the federal deci-
sions on the basis of the relief sought by the parties in
each action. The Armstrong amici, for example, argue
that the insured in Forty-Eight limited its argument to
positions “devised by the insurance industry” and did not
raise the arguments pressed successfully by the insured
In Eagle-Picher the District Court found that the law of Ohio,
Illinois and England was the same.
5
in this case. Armstrong brief at 7, n. 3.“ In fact, however,
the insured there cross-appealed and vigorously argued in
the Sixth Circuit that the entire cost of defending each
of the underlying actions should be borne entirely by the
insurers, even though it was uninsured for part of the
exposure period. While the court below accepted that
argument, and applied it to indemnification as well as to
defense, the Sixth Circuit squarely rejected it as unfair
and irrational. “Were we to adopt Forty-Eight’s position
on defense costs a manufacturer which had insurance cov-
erage for only one year out of 20 would be entitled to a
complete defense of all asbestos actions the same as a
manufacturer which had coverage for 20 years out of 20.
Neither logic nor precedent support such a result.” 633
F.2d at 1225. In dissenting below, Judge Wald reached
the same conclusion as the Court in Forty-Eight. The split
in the federal decisions, accordingly, cannot be explained
away by any rationale that undercuts the need for elarifi-
cation by this Court.
5. None of the parties opposing certiorari has even
attempted to deny the points Liberty makes concerning the
far-reaching and disruptive effects the split in the federal
courts will have upon the handling of the thousands of
underlying cases. After five years of litigation and four
federal court decisions,’ Liberty has been instructed to
handle Eagle-Picher’s cases on one basis, Forty-Eight
Insulation’s on another, and Keene Corporation’s on a
2 Even if this point were true, which it is not, it would be difficult
for those opposing certiorari to make much of it. The District of
Columbia Circuit stated in its December 21, 1981 order amending
its opinion that. . . we do not rely, however, on any legal or
factual aspect of Keene’s argument
It is impossible to place the decision in Commercial Union
Insurance Co. v. Pittsburgh Corning Corp., No. 81-2129 (E.D. Pa.
Dec. 4, 1981) in the camp of any of the previously mentioned deci-
sions, for it cites Keene, and Forty-Eight both but does not choose
between them.
6
third basis. What Liberty is swpposed to do with respect
to the defense and indemnification of its numerous other
insureds in underlying actions is now anybody’s guess.
If this court clarifies the extent to which the federal
courts must apply existing state law involving such mat-
ters as the burden of proof, the ordinary meaning rule,
and when injury or disease has been held to occur in other
insurance contexts, Liberty and the numerous other par-
ties involved in the nationwide coverage litigation can
at least make an intelligent assessment of what their
responsibilities will be held to be, based upon the state
law which will be applicable in each case. As things stand
now, however, there is no way for anyone even to guess
how the next federal coverage case will be approached,
much less resolved. If the decision below stands, long
standing rules of law in the insurance area will have no
predictive value at all, for the federal courts will follow
them only if they are “willing to accept the consequences
that it would imply for the contracts before us.” Slip
opinion at 16, n. 17. The implications which this uncer-
tainty will have on the settlement and trial of the thou-
sands of underlying actions do not require elaboration.
6. Keene’s accusation (at 3) that the manifestation
interpretation sought by Liberty and several petitioners is
a “newly fabricated” means of avoiding liability would
not deserve comment, except that the boldness of the
charge might make a lack of rebuttal stand out. In New
York the rule that injury or disease occurs, within the
meaning of an insurance policy, only when it reveals
itself was “fabricated” at least forty years ago, in Reiser
v. Metropolitan Life Insurance Co., 262 A.D. 171, 28
N.Y.S.2d 283 (1941), aff'd mem., 289 N.Y. 561, 43 N. E.
2d 534 (1942). The Second Circuit was guilty of the
same “fabrication” in Grain Handling Co., Inc. v. Swee-
ney, 102 F.2d 464, 466 (2d Cir. 1939) (Learned Hand,
J.); Travelers Insurance v. Cardillo, 225 F.2d 187 (2d
Cir.), cert. denied, 350 U.S. 9 (1955); and General
7
Dynamics Corp. v. Benefits Review Board, 565 F. 2d 208
(2d Cir. 1977). The last of these cases applied this com-
mon sense holding to asbestosis claims. Indeed, this Court
itself applied the same reasoning to a statute of limita-
tions case involving silicosis, in Urie v. Thompson, 337
U.S. 168, 168-70 (1948). It is understandable that
Keene’s financial interest might lead it to dislike the rule
that was so well established before the 1980 decision in
Forty-Eight and the decision below, but to call that rule
a “new fabrication” is preposterous.
Keene devotes much of its brief to quoting portions of
the “ample factual record in this case” in an attempt to
support the opinion by the court of appeals. Keene brief
at 17-23. Keene fails to explain, however, that none of
the “evidence” which it cites was considered or relied
upon by the courts below. The district court had confined
its consideration to the policies themselves and medical
testimony as to asbestosis. Speaking of issues which
Keene had tried to inject, the district court found “that
some of these issues have no bearing on resolution of the
instant motion” for summary judgment and then ex-
pressly limited the evidence that it would receive to
interpretation of the phrase ‘bodily injury caused by
an occurrence’ within the meaning of the policies and
aided by competent medical testimony.” Joint App. VI at
2363.
The district court’s refusal to consider this “evidence”
did not prevent Keene from referring to it at length in
the court of appeals, and now in this Court. It is impos-
sible to know how much the court of appeals was influ-
enced by such material in light of the statement in its
December 21, 1981 order that: “. . we do not rely,
however, on any legal or factual aspect of Keene’s argu-
ment. One thing which is clear, however, is that
if the court below had fully reviewed the record, it could
not possibly have made the findings upon which its origi-
nal opinion rested as to Keene’s expectations.“ The em-
ployee in charge of Keene’s insurance, for example, testi-
fied that if the policies were interpreted as he thought
they should be, “Basically what it meant is that Liberty
Mutual shouldn’t be liable. Q. Why not? A. Because they
only started [insuring Keene] in 1974 and they finished
manufacturing the product in 1973. That didn’t make
any sense to me.” Feick depo. at 304-305, Joint App. VIII
at 2815-2816. His superior, Keene’s treasurer Robert
Prata, said the same thing: “I think if the exposure
period was outside the year of coverage by a carrier, the
carrier would not have the liability.” Prata depo. at 125,
Joint App. VIII at 3209. Here we have to agree with
Keene’s officials and not its lawyers; the opinion below
does not “make any sense” except as an ad hoc fabrication
to give the insured a free ride no matter what the agree-
ments say, the evidence shows, or the governing state law
provides.
The Armstrong amici also argue that the insurance
policies are ambiguous and must therefore be construed
in favor of the insured. The district court, however, not
only made no finding of ambiguity but excluded most of
the evidence which Keene sought to inject. The District
of Columbia Circuit, however, in effect reversed the dis-
Originally the court below said that. . we... explicitly base
our interpretation of the policies on the reasonable expectations
of Keene.” Slip opinion at 13, n. 12. No findings had been made
on this point by the district court, however, and the court of
appeals referred to no evidence of what Keene’s expectations might
have been. We cited the above testimony in our petition for en banc
rehearing. After that was denied, the court below “sua sponte” filed
its order of December 21, 1981 and said the following of its original
rationale: “At the end of footnote, delete ‘the reasonable expecta-
tions of Keene’ and replace with ‘the expectations that Keene could
have reasonably formed, as an objective matter, on the basis of
the policies’ language.’” As amended, the opinion below thus rests
upon the expectations which Keene would have held if it had not
held different expectations!
trict court on this point and held that “. . . particular
terms of the policies are ambiguous as applied to asbestos-
related diseases. Slip opinion at 12.
What neither the court below nor the Armstrong amici
can justify, however, is how to reconcile the supposed
“ambiguity” of the policies, the summary judgment below,
and the principle recognized by the District of Columbia
Circuit, just two weeks after its decision in the instant
case, in Davis v. Chevy Chase Financial Ltd., —— F.2d
——, No. 80-1297 (D.C. Cir. Oct. 15, 1981). In Davis the
court held that summary judgment in a case involving
contract interpretation. . . is appropriate only when the
relevant provisions are so straightforward that they can
be read in but one way. . . . Where a contract is not
‘wholly unambiguous,’ the parties have the right under
principles of American contract law to present oral testi-
mony and other extrinsic material to aid in its interpre-
tation.” Slip opinion at 18-19. The court thus reversed
the district court’s granting of summary judgment be-
cause “. . . we cannot agree that this Agreement was
susceptible of but one reasonable interpretation.” Id.
This rule is well established in the numerous cases re-
ferred to in Davis, and was applied to an insurance con-
tract in General Accident Fire & Life Assurance Corp.
Ltd. v. Akzona, Inc., 622 F.2d 90, 93 (4th Cir. 1980).
On the present record, therefore, it would be proce-
durally impossible to uphold the District of Columbia Cir-
cuit’s reversal of the trial court on the strength of the
“evidence” which fills the briefs in opposition.
CONCLUSION
Only a definitive statement by this Court as to how
much interpretative latitude the lower federal couris may
exercise in reversing, distinguishing, and ignoring state
precedents in this asbestos insurance coverage litigation
will permit the numerous parties in this case, and the
10
dozens of parties in similar cases throughout the country,
to proceed with the settlement and defense of the thou-
sands of underlying cases with any possibility of under-
standing their respective rights and obligations therein.
The petitions should be granted.
Respectfuiiy submitted,
GERALD V. WEIGLE, In.“
DINSMORE, SHOHL, COATES
& DEUPREE
2100 Fountain Square Plaza
511 Walnut Street
Cincinnati, Ohio 45202
(513) 621-6747
Counsel of Record for
Petitioner Liberty Mutual
Insurance Company
FRANK W. GAINES, JR.
RoBertT L. HOEGLE
OLWINE, CONNELLY, CHASE,
O’DONNELL & WEYHER
Suite 890
1850 K Street, N.W.
Washington, D.C. 20006
(202) 659-4871
CHRISTOPHER C. MANSFIELD
Liberty Mutual Insurance
Company
175 Berkeley Street
Boston, Massachusetts 02117
(617) 357-9500
February 26, 1982
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.