Opposition Brief — Insurance Co. of North America v. Morton International, Inc.

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| Bugreme Court, U.S,

No. 93-1797 ~ FILE?

JUN 10 1994 |

In The :

Supreme Court of the Unik Sta Bs"

October Term, 1993

INSURANCE COMPANY OF NORTH AMERICA, et al.,

Petitioners,

MORTON INTERNATIONAL, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of New Jersey

RESPONDENT MORTON’S BRIEF AND

APPENDIX IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

GeorGE F. KuGter, Jr.

Counsel of Record

Epwarp C. Lairp

E.ius I. MeDoway

ARCHER & GREINER,

A Professional Corporation

One Centennial Square

P.O. Box 3000

Haddonfield, New Jersey 08033

(609) 795-2121

Of Counsel:

THomas C. Hitt

Tart, Stettintus & HOLLIsTER

1800 Star Bank Center

425 Walnut Street

Cincinnati, Ohio 45202

(513) 381-2838

Attorneys for Respondent

Morton International, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Should a petition for a writ of certiorari challeng-

ing the New Jersey Supreme Court’s decision as violative

of Due Process be granted when the Petitioners prevailed

below, the state supreme court provided them an oppor-

tunity to be heard, and the court’s decision bound the

Petitioners to their representations filed with the state

regulatory agency responsible for approving the so-called

“pollution exclusion clause” for use in their private con-

tracts of insurance?

2. Should a petition for a writ of certiorari be

granted on the grounds that the decision below conflicts

with holdings of this Court under the Due Process

Clause?

RULE 29.1 STATEMENT

The subsidiaries (other than wholly-owned subsid-

iaries) of Respondent Morton International, Inc. are listed

below:

(a)

(b)

(f)

(g)

Morton Nichiyu Co., Ltd.

‘Morton Yokohama, Inc.

Nippon-Bee Chemical Co., Ltd.

Toyo-Morton, Limited

Ecuatoriana, de Sal y Productos Quimicos

C.A.

Morsecor, C.A.

Dr. Renger G.m.b.H. & Co., K.G.

TABLE OF CONTENTS

Page

RPRPeOMUNU PIMOEINIED 00. ccc cece cccccccccccece i

UE as ii

ED occ ccd ccc decccheoncvce iv

CONSTITUTIONAL PROVISION INVOLVED....... 1

COUNTERSTATEMENT OF THE CASE............ 2

REASONS WHY THE PETITION SHOULD BE

ee 10

1. Petitioners Were Not Denied Due Process of

ek 10

2. There Are No Special Or Important Reasons That

Exist For Granting Certiorari Because The Deci-

sion Below Does Not Conflict With The Holdings

Of This Court In Ohio Bell Tel. Co. v. Public Utils.

Comm'n and Saunders v. Shaw.................. 17

A a ee 18

See cca tbe 19

TABLE OF AUTHORITIES

Page

CASES ,

Borden, Inc. v. Affiliated F&M Ins. Co., 682 F. Supp.

927 (S.D. Ohio 1987), aff'd, 865 F.2d 1267 (6th

Cir. 1989), cert. denied, 493 U.S. 817 (1989) ......... 9

Broadwell Realty Servs., Inc. v. Fidelity & Casualty

Co., 218 N.J. Super. 516, 528 A.2d 76 (App. Div.

GIFs oc ce ceecSeenedves becéteedsteverccsess ®» ii, 12

Broderick Ins. Co. v. Hartford Acc. & Indem. Co., 954

F.2d 601 (10th Cir. 1992), cert. denied, __ US.

aie SE RE, WET IS Gos 6.6 Ou bu hee dacs ch dnnd os « 9

Claussen v. Aetna Casualty & Sur. Co., 259 Ga. 333,

eR rs eee 8

Continental Insurance Co. v. Northeastern Phar-

maceutical & Chem. Co., 842 F.2d 977 (8th Cir.

1988), cert. denied, 488 U.S. 821 (1988).............. Y

Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682

F.2d 12 (1st Cir. 1982), cert. denied, 460 U.S. 1028

ERIE RSIS Ea eORE Soratiys Abs PE Rieter Reon: ems 9

Fuentes v. Shevin, 407 U.S. 67 (1972)...... syevedansei 10

Huddleston v. Dwyer, 322 U.S. 232 (1944).............. 8

Hybud Equip. Corp. v. Sphers Drake Ins. Co., Ltd., 64

Ohio St. 3d 657, 597 N.E. 2d 1096 (Ohio, 1992),

cert. denied, __ U.S. __, 113 S.Ct. 1585 (1993) ..... 8

Insurance Co. of N. Am. v. Forty-Eight Insulations,

633 F.2d 1212 (6th Cir. 1980), cert. denied, 454

A, SA EES hao tka d Ee eReeede REVERE OTN ceese) 9

Jackson Township Municipal Utilities Authority v.

Hartford Accident & Indemnity Co., 186 N.J.

Super. 156, 451 A.2d 990 (Law Div. 1982).......... 3

TABLE OF AUTHORITIES - Continued

Page

Joy Technologies, Inc. v. Liberty Mut. Ins. Co., 187

W.Va. 742, 421 S.E.2d 493 (1992).............. passim

Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 456

POE HP SUES h ok 659643 5o besinie ee 8

Kremer v. Chemical Const. Corp., 456 U.S. 461

Oo OEE ey ee UE REN OR SE oe 10, 12

Lansco, Inc. v. Department of Environmental Protec-

tion, 138 N.J. Super. 275, 350 A.2d 520 (Law Div.

1975), aff'd o.b., 145 NJ. Super. 433, 368 A.2d 363

(App. Div. 1976), certif. denied, 73 N.J. 57, 372

ee tg Ree ee A eee 3

Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348

(4th Cir. 1987), cert. denied, 484 U.S. 1008 (1988)..... 9

Matthews v. Eldridge, 424 U.S. 319 (1976) ......... 10, 12

Morton International, Inc. v. General Accident Insur-

ance Company, 134 N.J. 1, 629 A.2d 831

CRI 6 a) Oh eck e ock dak Soak Lee 2, 3, 8, 11, 13

N.J. Turnpike Authority v. Sisselman, 106 N.J. Super.

358, 255 A.2d 810 (App. Div. 1969), certif. denied,

34 N.J. 565, 256 A.2d 16 (1969) .........ccccccccee 16

Nero v. Hyland, 76 N.J. 213, 386 A.2d 846 (1978)..... 16

New Castle County v. Hartford Acc. & Indem. Co.,

ge Bs gs ke | eee ee 8

Ohio Bell Tel. Co. v. Public Utils. Comm’n., 301 U.S.

ME MEE brownies oo co iu 17, 18, 19, 20, 21, 22

Pascucci v. Vaggott, 71 N.J. 40, 362 A.2d 566 (1976) .... 16

Public Service Comm’n v. Brashear Freight Liners,

le: Te Wa MO MOOD s ipewicbe kes bcesibsuedilu 10

TABLE OF AUTHORITIES —- Continued

Page

Shelly v. Kraemer, 334 U.S. 1 (1948)... ..ccccseccsses 11

Tonka Corp. v. Bituminous Cas. Corp., 9 F.3d 51 (8th

Cir. 1993), cert. denied, __ U.S. __, 62 U.S.L.W.

ET CPEs 6 6.vvb'vo0 0b 6tsenes 66bceuneseeeberiotesss 8

CONSTITUTION

Constitution of the United States, Fourteenth

ee oa oe oie swale ste eee gee i

STATUTE

Superfund Reform Act of 1994, Title VIII; S. 1834,

Ut SSD U5 hve 6 bk's + 40 -niela eee ae een eer ek cen 22

RULES

ee es a ok bn eb oad won 0m cake lend eid 17

ee SS ls OED G'ss' vs b'e'c oa cand dee 6400 bee denM eieee 18

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No. 93-1797

In The

Supreme Court of the United States

October Term, 1993

INSURANCE COMPANY OF NORTH AMERICA, et al.,

Petitioners,

MORTON INTERNATIONAL, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of New Jersey

RESPONDENT MORTON’S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Respondent Morton International, Inc. (“Morton”)

respectfully requests that this Court deny the petition for

a writ of certiorari seeking review of the New Jersey

Supreme Court’s decision below.

CONSTITUTIONAL PROVISION INVOLVED

This case presents no basis for raising a claim under

the Fourteenth Amendment to the United States Constitu-

tion that would warrant this Court’s exercise of jurisdic-

tion.

COUNTERSTATEMENT OF THE CASE

On July 21, 1993, the New Jersey Supreme Court

rendered its long-awaited decision on New Jersey envi-

ronmental insurance coverage in Morton International, Inc.

v. General Accident Insurance Company, 134 N.J. 1, 629 A.2d

831 (1993) (Petitioners’ Appendix (“P.App.”) la-113a).

The decision ended seven years of insurance coverage

litigation and resulted in a determination that the Peti-

tioners and other carriers owed no duty of defense or

indemnification to their insured, Morton. This 96-page

unanimous decision was issued after oral argument and

after consideration of numerous briefs and thousands of

pages of record material submitted by all parties and

amici.

The state court’s opinion devoted its analysis and

attention to numerous environmental insurance coverage

issues that have plagued the courts throughout the coun-

try. The court resolved such state contract-law issues as

the meaning of the “occurrence clause,” the meaning of

“damages,” the definition of “accident,” the application

of the “duty to defend” and the interpretation of the

“pollution exclusion clause.”

While holding for the carriers on the pollution exclu-

sion clause and deciding that Morton was not entitled to

coverage for indemnity or defense, the court also deter-

mined that the Petitioners had grossly misrepresented to

New Jersey regulators the true intended purpose of that

exclusionary clause. Consequently, the court held the car-

riers bound to their representations and only permitted

enforcement of the clause as limited to those representa-

tions. Even this decision, however, expanded the

numbers and types of cases in which the carriers could

assert that the clause barred coverage.!

Contrary to the assertions made by Petitioners in

their Brief before this Court, the New Jersey Supreme

Court did not invoke the theory of estoppel “sua sponte.”

This theory was specifically acknowledged by Petitioners

in their brief filed with the New Jersey Supreme Court on

June 29, 1992. In that brief, Petitioners stated in reference

to the then-recent West Virginia Supreme Court of

Appeals decision in Joy Technologies, Inc. v. Liberty Mut.

Ins. Co., 187 W.Va. 742, 421 S.E.2d 493 (1992), and the New

Jersey Appellate Division decision in Broadwell Realty

Servs., Inc. v. Fidelity & Casualty Co., 218 N.J. Super. 516,

528 A.2d 76 (App. Div. 1987), that those cases suggest

1 Prior to the Morton decision, the lower courts in New

Jersey had for many years construed the pollution exclusion

clause to be ambiguous and co-extensive with the “occurrence”

provision. See, e.g., Broadwell Realty Services, Inc. v. Fidelity &

Casualty Co., 218 N.J. Super. 516, 528 A.2d 76 (App. Div. 1987);

Jackson Township Municipal Utilities Authority v. Hartford Accident

& Indemnity Co., 186 N.J. Super. 156, 451 A.2d 990 (Law Liv.

1982); Lansco, Inc. v. Department of Environmental Protection, 138

N.J. Super. 275, 350 A.2d 520 (Law Div. 1975), aff'd 0.b., 145 N.J.

Super. 433, 368 A.2d 363 (App. Div. 1976), certif. denied, 73 N.j.

57, 372 A.2d 322 (1977). Under this line of cases, an insured was

entitled to coverage if it could be shown that the resulting

damage was not “expected or intended.” The Morton decision

modified Broadwell by construing the pollution exclusion clause

to provide coverage identical with that provided under the

prior occurrence-based policy, except that the clause was inter-

preted to bar coverage in those cases where the “insured inten-

tionally discharges a known pollutant.” 134 N.J. at 78, 629 A.2d at

875 (emphasis in original and supplied).

the proponents of the pollution exclusion are

estopped from giving any real effect to the pollu-

tion exclusion because of one construction of

certain isolated statements in the [IRB] mem-

orandum that was submitted in most jurisdic-

tions. [Respondent Morton’s Appendix

(“R.App.”) 64a; emphasis added].

In Joy Technologies, the West Virginia Supreme Court

of Appeals applied the principle of judicial or regulatory

estoppel to Liberty Mutual (one of the Petitioners here),

stating:

Certainly, in this Court’s view, an essential part

of the public policy of the State of West Virginia

is that the law of the State should be adminis-

tered in such a way as to insure that foreign

corporations which seek to do business in West

Virginia act in a manner consistent with their

studied, unambiguous, official, affirmative rep-

resentations to the State, its subdivisions, or its

regulatory bodies. [187 W. Va. at 746, 421 S.E.2d

at 497].

In response to that decision, carrier amicus Aetna

Casualty & Surety Company (“Aetna”) moved on June 25,

1992 to expand the record before the New Jersey Supreme

Court, proposing to add in excess of 1,500 additional

pages of regulatory and drafting history relating to the

pollution exclusion clause (R.App. 8a-42a). Petitioners

Insurance Company of North America (“INA”) and

American Home Assurance Company (“American

Home”), together with Respondents Underwriters at

Lloyd’s, London, and Certain Subscribing London Market

Insurance Companies (“Lloyd’s”), joined Aetna’s success-

ful motion to expand the record (R.App. 66a-69a) and in

nt ae ae

eS 1) ene

so doing adopted Aetna’s submission that included,

among other things, the following sworn statement:

Aetna submits it is in a unique position to brief

on behalf of insurers the drafting and regulatory

history of those policy provisions and the way

they were understood by policyholders. Its

counsel herein have devoted many hundreds of

hours researching, analyzing and compiling

thousands of documents on this subject from the

files of the Insurance Service Office, insurance

brokers, state insurance commissioners, poli-

cyholder’s insurance and manufacturing trade

associations, the federal Environmental Protec-

tion Agency, and publicly available insurance

materials. .. .

At the risk of being presumptuous, and based

upon the fact that Aetna is not aware that any

other carrier has ever presented this evidence to

courts, it is believed that Aetna and counsel

herein are the only ones in the country who

have developed the wealth of industry-wide

information and data Aetna proposes to make

available in this briefing. Indeed, other insurers

opposed Aetna’s efforts, asserting that it is

never necessary to go beyond plain policy lan-

guage and resort to extrinsic evidence. [R.App.

6a-7a].

Aetna further explained in its supporting brief that it

had

compiled a full history demonstrating the true

import and complete context of such extrinsic

evidence. To the best of Aetna’s knowledge, it

has never before been presented to any state

Appellate or Supreme Court. [R.App. 42a].

This motion to expand the record, along with the Joy

Technologies decision rendered by the West Virginia high

court, prompted additional efforts to expand the record

before the New Jersey Supreme Court, including the New

Jersey Attorney General’s motion to place the full New

Jersey regulatory filings before the court. In its amicus

brief, the Attorney General again placed the estoppel

issue in front of all parties when he argued that the court

should “bind” the insurance industry to its representa-

tions made in the early 1970s to state regulators when

seeking approval of the pollution exclusion clause in

private insurance contracts (R.App. 77a-78a).

Petitioners’ complaint that Morton and amici did not

argue the estoppel issue is another mischaracterization of

the record. Both policyholder Amici New Jersey League of

Municipalities (“League”) and Allied-Signal group

(“Allied”) specifically identified the issue in their briefs

filed in late June, 1992. The League, relying on Joy Tech-

nologies, stated:

Similarly, Liberty Mutual and the other insur-

ance companies that took part in the filings sub-

mitted to New Jersey or West Virginia should be

estopped from taking a position here that is

inconsistent with these prior representations

made to the commissioners that the “exclusion

was a mere clarification of existing coverage.”

[R.App. 59a; emphasis in original].

Allied likewise argued:

The West Virginia Supreme Court of Appeals

has just reminded us that no more than anyone

else are insurers allowed to escape the force of

a an nd ADOT Py annals

at Ra A Tag PN Si Bl,

“studied, unambiguous, official and affirma-

tive” representations on which they mean public

authorities to rely. [R.App. 56a].

Morton argued to the trial court that the regulatory

filings of the carriers were critical to the outcome of the

case (R.App. la-2a). The precise IRB explanatory mem-

orandum that accompanied the carriers’ regulatory filing

nationwide was placed in the trial record in 1987 by

Morton and was specifically relied upon as evidence of

what Morton argued, at that time, was ambiguous lan-

guage contained in the insurance policies (R.App. 3a-5a).

This is the same explanatory memorandum that has been

the critical document analyzed by courts nationwide

including the trial, intermediate appellate and supreme

court in this case.

Morton consistently argued below that the ambig-

uous policy language should be construed in accordance

with the regulatory representations made by the carriers

(R.App. la-5a; 47a-52a). The two lower state courts

agreed with that argument. The New Jersey Supreme

Court concluded that the exclusionary language was not

ambiguous but could not be enforced because of the

regulatory representations made by the carriers. Thus,

either way, Morton’s argument that the carriers’ 1970-71

regulatory filings should prevail over their present inter-

pretation was accepted at each judicial level in this case.

Petitioners cannot have it both ways. They actively

supported and adopted the above statements made by

Aetna in seeking to expand the record before the New

Jersey Supreme Court and were ultimately successful in

doing so. They were clearly made aware of the critical

nature of the regulatory representations from the very

beginning of the case, and the issue of estoppel was most

specifically brought home to them by cases outside the

jurisdiction as well as the briefs filed in Morton.?

Petitioners’ argument is also undermined by the

supreme court’s ruling to further expand the record to

include additional (in excess of 40) affidavits filed in

support of Petitioners’ motion for reconsideration and

modification of the supreme court’s decision. While

accepting the affidavits and considering additional briefs

of Petitioners, the court nevertheless declined to modify

its decision (See P.App. 202a; 232a-248a; Petitioners’ Brief

(“P.B.”) at p. 11, n. 14). This case thus simply fails to

provide a bas:s to deviate from this Court's long-standing

policy of denying certiorari in cases which fundamentally

involve issues of state law and private contracts.*

2 The regulatory history of the pollution exclusion clause

was significantly relied upon by other courts prior to the deci-

sion in Joy Technologies. See, e.g., Just v. Land Reclamation, Ltd.,

155 Wis.2d 737, 456 N.W.2d 570, 574-75 (1990); Claussen v. Aetna

Casualty & Sur. Co., 259 Ga. 333, 380 S.E.2d 686, 689 (1989); New

Castle County v. Hartford Acc. & Indem. Co., 933 F.2d 1162, 1197-98

(3d Cir. 1991).

3 This Court has stressed that the “decisions of the highest

court of a state on matters of state law are in general conclusive

upon us... .” Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).

Guided by this long-standing principle, this Court has consis-

tently denied certiorari in cases involving insurance coverage

dispu(es, including environmental matters, the resolution of

which is governed by state law. Indeed, carriers, including some

of the Petitioners herein, have argued this point to this Court in

opposing petitions of this very nature in the past. See, e.g.,

Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St. 3d

657, 597 N.E. 2d 1096 (Ohio, 1992), cert. denied, U.S. __, 113

S.Ct. 1585 (1993); Tonka Corp. v. Bituminous Cas. Corp., 9 F.3d 51

In addition, Petitioners argue that the concept of

“equitable” estoppel requires a plenary hearing and

proofs of various elements including reliance by the

affected parties. In so arguing, Petitioners ignore the

import of what the New Jersey Supreme Court did. The

state court’s decision is predicated upon the concept of

“regulatory” estoppel; the court bound the insurance

industry to the representations it made in 1970-71 to New

Jersey regulatory authorities with respect to the alleged

H meaning of the pollution exclusion clause which was

ultimately approved on the basis of those representations.

. This state-law principle means that if you are in a regu-

lated industry and you make representations to those

charged with the responsibility of administering and

| overseeing that public process, the New Jersey Supreme

Court will hold you to those representations.

le ne ee a a ad he

(8th Cir. 1993 ), cert. denied, __ U.S. __, 62 U.S.L.W. 3750, 3754

(1994); Broderick Ins. Co. v. Hartford Acc. & Indem. Co., 954 F.2d

601 (10th Cir. 1992), cert. denied, __ U.S. ___, 113 S.Ct. 189 (1992);

Continental Insurance Co. v. Northeastern Pharmaceutical & Chem.

Co., 842 F.2d 977 (8th Cir. 1988), cert. denied, 488 U.S. 821 (1988);

Maryland Casualty Co. v. Armco, Inc., 822 F.2d 1348 (4th Cir.

1987), cert. denied, 484 U.S. 1008 (1988); Borden, Inc. v. Affiliated

F&M Ins. Co., 682 F. Supp. 927 (S.D. Ohio 1987), aff'd, 865 F.2d

1267 (6th Cir. 1989), cert. denied, 493 U.S. 817 (1989); Eagle-Picher

Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12 (1st Cir. 1982), cert.

denied, 460 U.S. 1028 (1983); Insurance Co. of N. Am. v. Forty-Eight

Insulations, 633 F.2d 1212 (6th Cir. 1980), cert. denied, 454 U.S.

1109 (1981).

ea a are s

REASONS WHY THE PETITION

SHOULD BE DENIED

1. Petitioners Were Not Denied Due Process of Law.

It has long been this Court’s practice to decline

review of a case when the party appealing was successful

below. See, e.g., Public Service Comm'n v. Brashear Freight

Liners, Inc., 306 U.S. 204, 206 (1939). Whether this princi-

ple is embodied in the legal concepts of speculative adju-

dication, mootness, standing, or absence of case or

controversy, it stands for the basic proposition that this

Court’s jurisdiction is discretionary and should not be

exercised lightly in a case in which the appealing party

has already been successful below.

Assuming that these Petitioners can invoke this

Court’s jurisdiction, this is not an appropriate case in

which to exercise that jurisdiction. Without specifically

identifying the basis for certiorari, Petitioners argue that

they were denied due process by the procedural manner

in which the state supreme court rendered its decision

below. This is not true.

Fundamentally, due process of law is a flexible con-

cept. It requires a protected property interest, state action,

notice and an opportunity to be heard. See, e.g., Kremer v.

Cheinical Const. Corp., 456 U.S. 461 (1982); Matthews v.

Eldridge, 424 U.S. 319 (1976); Fuentes v. Shevin, 407 U.S. 67

(1972). From a due process perspective, there is a serious

question whether a judicial decision of a state’s highest

court interpreting a private insurance contract under

state law principles can ever constitute state action inter-

ference with a protected property interest.

We ask the Court to note that, prior to the supreme

court’s decision in Morton, the courts in New Jersey had

interpreted the pollution exclusion in strict accordance

with the regulatory submission of the carriers. Broadwell

Realty Servs., Inc. v. Fidelity & Casualty Co. 218 N.J. Super.

516, 528 A.2d 76 (App. Div. 1987), held that the pollution

exclusion clause was merely a restatement of the “occur-

rence” definition. Thus, when the state supreme court

overruled Broadwell in part, it did not deprive the carriers

of any interest.

Similarly, the Fourteenth Amendment requires state

action. It has been recognized that a state supreme court's

decision may constitute state action in the appropriate

context. See Shelly v. Kraemer, 334 US. 1 (1948). Nonethe-

less, not every state supreme court decision constitutes

the type of state action contemplated by the Fourteenth

Amendment. Kraemer recognized that state action in the

nature of enforcing a racially discriminatory provision of

a deed could satisfy the requirements of the Fourteenth

Amendment. 334 U.S. at 13-14. That case does not stand,

and no reported decision has been found to stand, for the

Proposition that an interpretation given to a private con-

tract by a state supreme court constitutes state action

entitling the parties to challenge that decision under the

Fourteenth Amendment. The actions of the supreme court

below do not constitute the type of state action contem-

plated by the Due Process Clause.

Even if one reaches the question of whether the Peti-

tioners received an opportunity to be heard in this case,

the record demonstrates clearly that the Petitioners not

only had full, complete and adequate notice but also had

ample opportunity to be heard. This Court has recog-

nized that the Due Process Clause dictates no particular

form of procedure, rather only that there be a meaningful

opportunity to be heard at a meaningful time. Nor is an

evidentiary hearing a prerequisite to due process. Kremer,

456 U.S. at 482; Matthews, 424 U.S. at 333-34. These two

guiding principles were more than met by the proceed-

ings in the New Jersey Supreme Court.

The carriers were on notice that the regulatory filings

were critical to the outcome of the case and fully under-

stood that the concept of regulatory estoppel was placed

squarely before the New Jersey Supreme Court. They had

a full opportunity to respond and provide whatever

record material they chose to influence the court to reach

a decision favorable to them. There are numerous record

citations demonstrating those points, including:

1. Morton argued before the trial court (as well as in

the intermediate appellate court and supreme court) that

the IRB explanatory memorandum was crucial in the

interpretation of the pollution exclusion, quoting the doc-

ument in full (R.App. la-5a; 47a-52a).

2. The holding of Broadwell Realty Servs., Inc. v.

Fidelity & Casualty Co., 218 N.J. Super. 516, 528 A.2d 76

(App. Div. 1987), which was followed by both the trial

and intermediate appellate courts below (see P.App.

153a-156a), relied on the history of the regulatory filings

in part to support its conclusion that the pollution exclu-

sion clause was ambiguous and was co-extensive with the

occurrence clause.

3. Petitioners’ brief in the supreme court acknowl-

edged that estoppel was a critical issue in the case more

than five months before oral argument and prior to addi-

tional briefing and the expansion of the record to address

that very issue (R.App. 64a).

4. Amicus Aetna moved to expand the record to

include over 1,500 pages of regulatory and drafting his-

tory of the pollution exclusion clause that it asserted in a

sworn statement constituted the most extensive in the

United States (R.App. 7a-46a).

5. Petitioners joined in that motion, adopting

Aetna’s representations to the supreme court (R.App.

66a-69a).

6. Aetna’s motion to expand the record and the

Petitioners’ joinder in that motion took place soon after

the estoppel issue had served as the basis for the West

Virginia Supreme Court of Appeals decision in Joy Tech-

nologies (R.App. 8a; 66a-69a).

7. Amici, the League and Allied specifically identi-

fied the estoppel concept as applicable to this case, argu-

ing that the carriers should be estopped from dishonoring

the plain import of their explanatory memorandum sub-

mitted to state regulatory officials nationwide (R.App.

53a-60a).4

* The New Jersey Supreme Court described that explana-

tory memorandum as “misleading”, “untrue”, “indefensible”,

“perilously close to deception”, “inaccurate”, “astonishing”,

“lacking in candor”, “not straight forward” and “paradigms of

understatement”. Morton, 134 N.J. at 37-40, 629 A.2d at 852-54.

We also note that Petitioners initially resisted all efforts to

introduce extrinsic evidence on drafting or regulatory history.

They joined in Aetna’s motion to expand the record a few weeks

after Joy Technologies was decided. Petitioners joined in Aetna’s

8. Amicus New Jersey Attorney General moved to

expand the record so that an accurate and complete

record of the New Jersey regulatory history would also be

considered by the court. Notably absent from the carriers’

complete and comprehensive 1500 pages of regulatory

and drafting history were any documents relating to the

New Jersey regulatory history. Petitioners opposed the

Attorney General’s effort to place that material on the

record before the supreme court (R.App. 70a-76a).

9. All these materials were submitted prior to oral

argument. Further, the carriers filed before oral argument

a response brief specifically addressing the Attorney Gen-

eral’s submission on the New Jersey regulatory filings

(R.App. 79a-81a).

10. Although the Attorney General argued the

state’s regulatory history at oral argument, Petitioners

did not.

11. Following oral argument, the court requested

and accepted from the parties additional commentary

articulating different points of view with regard to the

drafting and regulatory history of the pollution exclusion

(R.App. 82a-84a).

motion because they were concerned about the impact of Joy

Technologies in relation to the arguments being made before the

New Jersey Supreme Court. Consequently, Petitioners elected to

join Aetna’s submission of the most comprehensive set of mate-

rials on regulatory and drafting history anywhere in the coun-

try, thereby reversing their previous position on the issue of

introducing extrinsic evidence.

—

12. After the supreme court rendered its decision on

July 21, 1993, the carriers requested an extension of time

to file motions for reconsideration, which the court

granted (R.App. 85a). In their motions for reconsidera-

tion, the carriers fully briefed their due process claim

(R.App. 86a-89a). In support of their motion, they also

submitted 44 additional affidavits and sought the court's

acceptance of those affidavits into the record. These affi-

davits could have been presented at every previous level

of decision in this case.5

Clearly, Petitioners were given and took advantage of

every Opportunity to brief the relevant issues and expand

the record in order to influence the court and be heard.

Petitioners request an evidentiary hearing so they

can offer testimony on whether regulators 24 years ago

understood the “true meaning” of the pollution exclusion

despite the misleading explanation the insurers provided

when they sought approval of that exclusion. We can only

note that Petitioners raise no factual dispute as to the

content or the submission of the explanatory memoran-

dum. Petitioners also raise no factual dispute that they

offered no other explanation in writing to assist the New

Jersey regulators to understand the significant reduction

Aetna sought to include in its motion to expand the record the

affidavit of Samuel Weese, former West Virginia Commissioner

of Insurance, dated July 7, 1992, which repudiated his previous

affidavit of 1988 (R.App. 43a-46a). The 1992 Weese affidavit was

substantially similar to the 44 affidavits submitted by Peti-

tioners a year later in support of their motion for reconsidera-

tion.

in coverage that they now say they accomplished by

imposing that exclusion.

Under New Jersey law, review of an administrative

agency’s decision takes place in the first instance in the

intermediate appellate court based on the record on file

in the agency. See N.J. Court Rules 2:2-3(a)(2); 2:5-4; Pas-

cucci v. Vaggott, 71 N.J. 40, 53-54, 362 A.2d 566, 573-74

(1976). Review of an agency decision to approve a pollu-

tion exclusion in an insurance contract would have fol-

lowed that procedure rather than a trial-type evidentiary

hearing. Petitioners propose to go far beyond the docu-

mentary record to prove the mental processes of the

regulators. As the Attorney General’s brief in opposition

to the carriers’ reconsideration motions pointed out, the

documentary record is the only reliable record for an

administrative decision; private conversations with indi-

vidual regulators or undisclosed thoughts would be

impossible to confirm as the basis for an administrative

decision. In fact, several of the New Jersey regulators

responsible for the final decision are deceased and unable

to rebut or support the statements of the single New

Jersey regulator offered by the carriers (R.App. 90a-92a).

Even if the regulators who reviewed the exclusion

were available, their mental processes in reaching the

decision to approve the exclusion would be privileged.

New Jersey courts have seldom, if ever, allowed deposi-

tions or trial testimony of members of the executive

branch in light of the public interest in the executive's

ability to carry out its decisional and consultive functions

freely. See Nero v. Hyland, 76 N.J. 213, 225-26, 386 A.2d

846, 853 (1978); N.J. Turnpike Authority v. Sisselman, 106

N.J. Super. 358, 367, 255 A.2d 810, 814-815 (App. Div.

1969), certif. denied, 54 N.J. 565, 258 A.2d 16 (1969).

In sum, the New Jersey Supreme Court provided

Petitioners and all parties a full and ample opportunity to

present any and all evidence that they believed constitu-

ted the regulatory or drafting history of the pollution

exclusion clause. In fact, one of the Petitioners herein,

American Home, joined by Lloyd’s, urged the supreme

court to accept Aetna’s more than 1500 pages of drafting

and regulatory history, stating:

It is the undersigned insurers position that the

Aetna amicus brief and the appendices refer-

enced thereto have given the Court a fair and

complete picture of the derivation of the pollu-

tion exclusion. Should this Court or a lower

court in remand wish to consider the issue of

extrinsic evidence, the Aetna motion should be

granted. [R.App. 66a-67a].

Even if the Petitioners were entitled to present a due

process claim to this Court on this petition, they have

failed to demonstrate that any violation of due process

took place or that it could possibly serve as a basis for

this Court’s grant of a writ of certiorari.

2. There Are No Special Or Important Reasons That

Exist For Granting Certiorari Because The Decision

Below Does Not Conflict With The Holdings Of

This Court In Ohio Bell Tel. Co. v. Public Utils.

Comm'n and Saunders v. Shaw.

Sup. Ct. R. 10 sets forth the considerations governing

this Court’s review of a writ of certiorari. That Rule

prescribes that a petition will be granted only when there

are “special and important reasons” to do so. The Rule

also sets forth the “character of reasons” that this Court

will consider in reviewing such applications. The only

reason offered in Petitioners’ Brief for the Court’s favor-

able consideration of their petition is that the New Jersey

Supreme Court “has decided a federal question in a way

that conflicts with applicable decisions of this Court.”

Sup. Ct. R. 10.1(c) (See P.B. at p. 12).

To satisfy this requirement, Petitioners rely heavily

upon the decisions of this Court in Saunders v. Shaw, 244

U.S. 317 (1917), and Ohio Bell Tel. Co. v. Public Utils.

Comm'n, 301 U.S. 292 (1937), claiming they squarely con-

flict with the decision below. That reliance is misplaced.

a. Saunders

In Saunders, the complainant had no opportunity to

present his case to the Louisiana Supreme Court. Because

of a state rule permitting only one re-hearing in any

given matter, the petitioner therein was also foreclosed

from asking the court to reconsider its decision and con-

sider complainant’s defense. 244 U.S. at 320.

As has been amply pointed out above, Petitioners in

this case were not only made aware of the issues in front

of the state supreme court initially and given the oppor-

tunity to submit whatever record evidence they chose to

present, but they were also given an extensive oppor-

tunity to pursue a motion for re-hearing (reconsideration)

to the state supreme court. In that reconsideration motion

they extensively briefed the due process issue and added

an additional 44 affidavits to the record, presenting what

they contended to be the necessary basis for the supreme

court to reconsider its ruling and modify it. There is no

comparison whatsoever between the record and oppor-

tunity granted Petitioners to be heard in the case below

and the record and opportunity granted to the complain-

ing party in Saunders.

This Court in Saunders noted there may be a remedy

84p,

when the act complained of is the act of the

supreme court, done unexpectedly at the end of

the proceeding, when the plaintiff in error no

longer had any right to add to the record... .

{244 U.S. at 320].

The decision of the supreme court below was not done

unexpectedly at the end of the proceeding, and it was

certainly not done when Petitioners no longer had any

right to add to the record. The record below clearly

demonstrates that Petitioners not only had a right to add

to the record, but in fact did add to the record and their

motions to do so were granted by the state supreme

court. Obviously dissatisfied with their previous efforts,

Petitioners now come before this Court seeking yet

another opportunity to achieve their interpretation of the

pollution exclusion clause, this time in the guise of the

Due Process Clause. Saunders does not help them.

b. Ohio Bell

Ohio Bell involved orders of the Ohio public utilities

commission resulting from a proceeding to determine

whether rates charged by a telephone company were

excessive. Petitioners argue that the state agency’s han-

dling of the hearing on the rate challenge in Ohio Bell is

comparable to the supreme court's decision here.® Even a

cursory reading of Ohio Bell demonstrates the fallacy of

that argument. As this Court observed:

Without warning or even the hint of warning

that the case would be considered or deter-

mined upon any other basis than the evidence

submitted, the Commission cut down the values

for the years after the date certain upon the

strength of information secretly collected and

never yet disclosed. [301 U.S. at 300].

Petitioners can hardly claim here that the state

court’s decision on the pollution exclusion clause was

“without warning or even the hint of warning.” The fact

is the carriers’ amict and the parties all knew that the

issue involving the pollution exclusion clause included

the possibility that the New Jersey Supreme Court would

decide to bind the carriers to the representations they

made to state regulatory agencies when they sought

approval of the pollution exclusion endorsement. The

carriers represented to the state supreme court prior to its

initial decision and prior to oral argument that they

believed that their amicus Aetna and its counsel “are the

only ones in the country who have developed the wealth

of industry-wide information and data Aetna propose[d]

to make available in this briefing” (R.App. 7a).

that the principles enunciated in Ohio Bell have never been

applied by this Court to a state appellate court. There is no

reason to do so here.

Further, unlike the unique situation presented in Ohio

Bell, the case below was decided upon voluminous infor-

mation submitted by all parties including amici. There is

no hint here that any information was “secretly collected

and never yet disclosed” throughout the course of the

supreme court’s decision below. The information the

court relied upon was disclosed long before its own deci-

sion and known to the Petitioners for many years.

In addition, Petitioners were given the opportunity to

seek reconsideration and permitted to place into the

record an additional 44 affidavits that Petitioners argued

should cause the supreme court to modify its opinion.

Although they had many months to submit these affi-

davits prior to the court's initial decision, Petitioners in

their continuing effort to have it both ways waited until

the court’s decision. This was true despite the fact Aetna

had already introduced into the record on their behalf

what the carriers represented was the complete drafting

and regulatory history of the pollution exclusion.

Moreover, this Court noted in Ohio Bell that even the

eventual decision of the commission did not disclose the

underlying basis for the conclusions reached, observing

that “[t]he putative debtor does not know the proofs

today.” 301 U.S. at 300. That is not this case. There were

no secret proceedings below involving a state administra-

tive agency. Any deception practiced below was found to

be that of the Petitioners. Petitioners are challenging here

the conduct of the state supreme court whose operations

were open, notorious, on the record and actively partici-

pated in by all parties and their amici, including these

Petitioners.

In sum, Saunders and Ohio Bell are inapposite and

Petitioners’ efforts to utilize these cases to support a

petition for a writ of certiorari to this Court do not hold

up under scrutiny.”

7 We point out that there is currently pending before Con-

gress proposed legislation regarding Superfund Reauthoriza-

tion (“Superfund Reform Act of 1994”; S. 1834, H.R. 3800)

(“SRA”). Title VIII of the SRA, entitled the “Environmental

Insurance Resolution and Equity Act of 1994,” proposes the

creation of an “Environmental Insurance Resolution Fund” that

would specifically address the resolution of state law issues that

are raised, like the present issue, in environmental insurance

coverage litigation. This is but an additional factor that further

militates in favor of denying the present petition.

OP dala. So Hy Sad te Nae

CONCLUSION

For the foregoing

reasons, the petition for a writ of

certiorari should be denied.

DATED: June 10, 1994

Respectfully submitted,

GeorGce F. Kucier, JR.

Counsel of Record

Epwarp C. Lairp

Exus 1. Mepoway

ARCHER & GREINER,

A Professional Corporation

One Centennial Square

P.O. Box 3000

Haddonfield, New Jersey 08033

(609) 795-2121

Of Counsel:

THomas C. Hirt

Tart, Stetrintus & Hovwwster

1800 Star Bank Center

425 Walnut Street

Cincinnati, Ohio 45202

(513) 381-2838

¢ " Slt i Rae ie i

Att To Scag kl i ide gat Te

;

No. 93-1797

In The

Supreme Court of the United States

October Term, 1993

INSURANCE COMPANY OF NORTH AMERICA, et al.,

Petitioners,

MORTON INTERNATIONAL, INC

Respondent.

“-

On Petition For A Writ Of Certiorari

To The Supreme Court Of New Jersey

APPENDIX TO RESPONDENT MORTON’S

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TABLE OF CONTENTS OF APPENDIX

Page

APPENDIX A

Portions of Respondent Morton’s Brief filed in

Chancery Division in Support of Cross-Motion

for Partial Summary Judgment and in Opposi-

| tion to Certain Carrier Defendants’ Motions for

. Summary Judgment, dated April 15, 1987......... la

APPENDIX B

Portions of Insurance Rating Board Circular to

. Board and Associate members, dated May 15,

1970, with Explanatory Memorandum on pollu-

tion exclusion, contained in Morton’s Appen-

dices filed with New Jersey Superior Court,

Chancery and Appellate Divisions

APPENDIX C

Portions of Certification of Amicus Aetna Casu-

alty and Surety Company’s (“Aetna”) counsel

in support of motion to appear as amicus curiae

below and to supplement record on drafting

and regulatory history of pollution exclusion,

Ge ee Ot OP oc. 6a

APPENDIX D

Certification of Aetna’s counsel in support of

motion to expand record, dated June 25, 1992..... 8a

toe eet

i 8

“oda Pelasege te We.) dene dora te ee ae s

eas

eRe ids is etna. | ET

Tables of Contents to Supplemental Appendices

of Aetna, Volumes I-IV, identifying over 1,500

pages of drafting and regulatory history on pol-

lution exclusion, filed with New Jersey

POY GES osha 12a

PO RR MR tO A

TABLE OF CONTENTS OF APPENDIX - Continued

Page

Portion of Aetna’s Brief filed with New Jersey

Supreme Court, dated June 25, 1992............. 4la

Letter dated July 21, 1993 from Aetna’s counsel

to New Jersey Supreme Court with enclosed

Samuel H. Weese Affidavit, dated July 7, 1992... 43a

APPENDIX E

Portions of Respondent Morton’s Brief filed

with New Jersey Supreme Court regarding pol-

lution exclusion, dated June 8, 1992.............. 47a

APPENDIX F

Portions of Amicus Allied-Signal, Inc., et al. Brief

filed with New Jersey Supreme Court, dated

DU TBO 40.0 004000000 0bb0000ss Cede abahannas 53a

APPENDIX G

Portions of Amicus League of Municipalities’

Amended Brief filed with New Jersey Supreme

Comet, Gs: BARS DE BOGE. ¢ ovcdanciwsese dees sis 57a

APPENDIX H

Portions of Petitioners’ Reply Brief on pollution

exclusion filed with New Jersey Supreme Court,

GROG SARS Bey BOGE ca scvee fxciani sete Gekk: 6la

APPENDIX I

Portions of Petitioner American Home’s and

Underwriters at Lloyd’s Brief in Support of

Aetna’s motion to expand record, dated July 30,

SPE eens ccncceveciessoecdudebetenddutaeeeter tees 66a

APPENDIX J

Petitioner Insurance Company of North Amer-

ica’s (“INA”) joinder in Brief of other Peti-

tioners in support of Aetna’s motion to expand

POCRNE, GHEDE FONT The TOE o 0 vceveesceceeusenses 68a

i. r ae ee oe on

TABLE OF CONTENTS OF APPENDIX - Continued

APPENDIX K

Portions of Petitioners’ (INA, American Home

and Liberty Mutual) Brief in opposition to New

Jersey Attorney General’s motion to participate

as Amicus and to expand record filed with New

Jersey Supreme Court, dated September 14,

SOO dhtvv ined ntiiemess wadeneheev leis bet ok occ.

Portions of London Market's Brief in Opposition

to New Jersey Attorney General’s participation

as Amicus and to expand record, filed with New

Jersey Supreme Court, dated September 14,

SOUS Ved ss evewes Seve Ws tebe dida dices Gis...

Portions of Petitioners’ (Continental Casualty,

General Accident and First State) Brief in Oppo-

sition to New Jersey Attorney General's partici-

pation as Amicus and to expand record, filed

with New Jersey Supreme Court, dated Septem-

Oe Me eR ei eLealsisieetcts.

APPENDIX L

Portions of Amicus New Jersey Attorney Gen-

eral’s Brief filed with New Jersey Supreme

Court, dated October 28, 1992.................

APPENDIX M

Portions of Petitioners’ Brief filed with New

Jersey Supreme Court responding to New Jer-

sey Attorney General’s Brief on regulatory his-

tory of pollution exclusion, dated November 12,

AA Gs hen dedhnie ance dedsededeu

APPENDIX N

Letter dated December 30, 1992 from Respon-

dent Morton’s counsel to New Jersey Supreme

Court enclosing requested additional commen-

taries on pollution exclusion...................

Page

TABLE OF CONTENTS OF APPENDIX - Continued

Page

Letter dated January 15, 1993 from Aetna’s

counsel to New Jersey Supreme Court enclosing

requested additional commentary on pollution

Gas he ea vce Ue h ccc stitévivcscovnsebeeseess 84a

APPENDIX O

Petitioners’ Notice of Motion for Reconsidera-

tion and Portions of Brief in Support filed with

New Jersey Supreme Court, dated August 30,

SOO eiindaee sp dacvacissccvconnctandecedddasesves: 85a

APPENDIX P

Portions of New Jersey Attorney General's Brief

regarding Motions for Reconsideration filed

with New Jersey Supreme Court, dated Decem-

WE Ty Ph coe c ac Censdusncuvedbusivactecevudds 90a

APPENDIX A

SUPERIOR COURT OF NEW JERSEY

BERGEN COUNTY

CHANCERY DIVISION

MORTON THIOKOL, INC.,_ : Docket No.

Plaintiff, 3 C-3956-85

pot ' PLAINTIFF’S BRIEF

‘ IN SUPPORT OF

GENERAL ACCIDENT ‘ CROSS-MOTION FOR

INSURANCE COMPANY ‘ PARTIAL SUMMARY

OF AMERICA, et al., ‘ JUDGMENT AND IN

Defendants. . OPPOSITION TO

' CERTAIN CARRIER

DEFENDANTS’

MOTIONS FOR

SUMMARY

JUDGMENT

In equating the ISO form with the definition of occur-

rence, the court in Jackson Township MUA acted consis-

tently with the stated intent of the IRB in promulgating

the clause and the demonstrated intent of the insurers

that imposed it on their insured. In circulating the ISO

form to its members, the IRB explained:

Coverage for poliution or contamination is

not provided in most cases under present poli-

cies because the damages can be said to be

expected or intended and thus are excluded by

the definition of occurrence. The above exclu-

sion clarifies this situation so as to avoid any

questions of intent. Coverage is continued for pol-

lution or contamination caused injuries with the

pollution or contamination resulting from an

accident. . . . (Emphasis added.)

IRB Circular Number 208, App. Vol. IV, Tab 1,

pp- ISO 28, ISO-30.

Commentators support this interpretation:

Pollution: Exclusion (f) is new. It eliminates

coverage for damages arising out of pollution or

contamination, where such damage appears to

be expected or intended on the part of the

insured and hence are excluded by definition of

“occurrence.”

3 R. Long, Law of Liability Insurance, Appendix C at

58. Moreover, the insurers effectuated this interpretation

by imposing the ISO form on their insured without any

reduction in premium for the coverage purportedly

excluded, evincing an understanding that no current cov-

erage was being removed.'*% The Jackson Township MUA

holding is, thus, in complete accord with the insurance

industry’s treatment of the ISO form.

of + *

Respectfully submitted,

ARCHER & GREINER

A Professional Corporation

Attorneys for Plaintiff

Morton Thiokol, Inc.

By:

Edward C. Laird

1% See Affidavit of George W. Floyd, 95; App. Vol. IV, Tab 6.

arn ee en a oe DCA tien teil ttn es

APPENDIX B

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-895-89T3

MORTON INTERNATIONAL, INC.,

Plaintiff-Appellant,

VS.

GENERAL ACCIDENT INSURANCE

COMPANY OF AMERICA, et al.

Defendants-Respondents.

APPENDIX VOLUME VII

MORTON INTERNATIONAL, INC.

INSURANCE RATING BOARD

May 15, 1970

CIRCULAR TO BOARD MEMBERS AND

ASSOCIATE MEMBERS

General Liability #206

CONFIDENTIAL

Effective June 10, 1970

Gentlemen:

Contamination and pollution exclusions, as described

below, have been filed or will be filed in all jurisdictions

to be effective June 10, 1970, in accordance with the rule

of application shown in the latter part of this letter. These

exclusions will apply to all general liability insurance

covering bodily injury and property damage except com-

prehensive personal and farmers comprehensive personal

liability and professional liability insurance.

The exclusions wordings are as follows:

Contamination or Pollution Exclusion. Bodily

injury or property damage arising out of the

discharge, dispersal, release or escape of smoke,

vapors, soot, fumes, acids, alkalis, toxic chemi-

cals, liquids or gases, waste materials or other

irritants, contaminants or pollutants into or

upon land, the atmosphere or any watercourse

or body of water; but this exclusion does not

apply if such discharge, dispersal, release or

escape is sudden and accidental.

+ * +

Coverage for pollution or contamination is not provided

in most cases under present policies because the damages

can be said to be expected or intended and thus are

excluded by the definition of occurrence. The above

exclusion clarifies this situation so as to avoid any ques-

tion of intent. Coverage is continued for pollution or

contamination caused injuries when the pollution or con-

tamination results from an accident except that no cover-

age will be provided under certain operations for injuries

arising out of discharge or escape of oil into any body of

water.

APPENDIX C

a oy . SUPREME

MORTON INTERNATIONAL, - COURT OF NEW

INC. | JERSEY

Plaintiff-Appellant/ Docket No. 34,341

Petitioner > CERTIFICATION

: OF VICTOR C.

— : HARDWOOD, III

GENERAL ACCIDENT : IN SUPPORT OF

INSURANCE COMPANY - AETNA’S

OF AMERICA, et al., : MOTION TO

Defendants-Respondents / * APPEAR AS

Conitiinaane : AMICUS CURIAE

a X

lL, VICTOR C. HARDWOOD, IIL, do hereby certify as

follows:

* * *

8. Aetna submits it is in a unique position to brief

on behalf of insurers the drafting and regulatory history

of those policy provisions and the way they were under-

stood by policyholders. Its counsel herein have devoted

many hundreds of hours researching, analyzing and com-

piling thousands of documents on this subject from the

files of the Insurance Service Office, insurance brokers,

state insurance commissioners, policyholders’ insurance

and manufacturing trade associations, the federal Envi-

ronmental Protection Agency, and publicly available

insurance materials.

* * *

10. Based upon comments in reported cases, discus-

sions with other insurer counsel, and briefs heretofore

filed in environmental litigation throughout the country,

it appears this evidence has never before been presented

to courts except recently by Aetna’s counsel herein.

Indeed, the reported cases reveal that courts nationwide,

including New Jersey’s lower courts, have only consid-

ered the barest handful of documents, if any. They have

reached their conclusions in a vacuum supported only by

other cases of the same sort and comments from articles

primarily authored by counsel who represented poli-

cyholders. Those articles make adversarial arguments

which courts have incorrectly accepted as impartial, fac-

tually accurate reports.

11. At the risk of being presumptuous, and based

upon the fact that Aetna is not aware that any other

carrier has ever presented this evidence to courts, it is

believed that Aetna and counsel herein are the only ones

in the country who have developed the wealth of indus-

try-wide information and data Aetna proposes to make

available in this briefing. Indeed, other insurers opposed

Aetna’s efforts, asserting that it is never necessary to go

beyond plain policy language and resort to extrinsic evi-

dence.

APPENDIX D

SUPREME COURT OF NEW JERSEY

Docket No. 34,341

a ia CERTIFICATION

Plaintiff(s) - Appellant/Petitioner : Of yICTOR C.

MORTON INTERNATIONAL, ‘ HARWOOD, III

INC.,

VS.

Defendant(s) — Respondents/

Cross-Petitioners

GENERAL ACCIDENT

INSURANCE COMPANY

OF AMERICA, et al.

I VICTOR C. HARWOOD, III, do hereby certify as

follows:

1. Iam an attorney at law of the State of New Jersey

and a partner of the firm of Harwood Lloyd, Esqs. I am

the attorney in charge of this firm’s representation of the

Aetna Casualty and Surety Company (hereinafter

“Aetna”) in this matter and I am fully familiar with it.

2. This Court granted Aetna’s motion for leave to

participate as amicus curiae by order dated May 26, 1992.

This Certification is made in support of Aetna’s motion to

clarify the Court’s May 26, 1992 order granting Aetna’s

motion for leave to appear as amicus curiae or, in the

alternative, to expand the record below nunc pro tunc and

file a supplemental appendix.

3. As part of Aetna’s motion, and for the Court's

convenience, Aetna has submitted copies of those docu-

ments it seeks to present to this Honorable Court. Those

documents are contained in Volumes I, II, III and IV of

Aetna’s “Supplemental Appendix” (“Asa”).

4. Many of the documents contained in Aetna’s sup-

plemental appendix were produced during the course of

discovery in the following related cases:

“Morton I” — the underlying lawsuit upon which

this appeal is based - Morton

Thiokol v. General Accident Insurance

Company of America, et al, Docket

No. C-3956-85 (N.J. Super. Ch.

Div.);

“Morton II” — a lawsuit involving the same poli-

cyholder, but different sites - Aetna

Casualty & Surety Co. v. Morton

Thiokol, et al, Docket No.

L-41046-87 (N.J. Super. Law Div.)

(formerly C-3348-86E); and

“Morton III” — a lawsuit filed by Thiokol in Ohio

~ Morton Thiokol, Inc. v. Aetna Casu-

alty & Surety Co., No. A8603799

(Ohio Ct. Common Pleas).

5. Discovery in all Morton cases was coordinated by

the various trial courts. The relevant orders are attached

to the Supplemental Appendix at Asa 179-180; trial court

order entered in “Morton II” dated July 30, 1986: “ .. . all

discovery in either case (“Morton I” and “Morton II”) shall

be available for use by all parties in each case.” See also,

Asa 181-185 at Asa 184-185; Case Management Order |

entered in “Morton II” on October 30, 1986, par. 9, which

10a

coordinates “Morton I” and “Morton II” discovery with

other Morton cases pending in Ohio (“Morton III”) and

Illinois.

6. Thus, counsel for Thiokol participated in and had

access to all discovery in the Morton I, II and III litiga-

tions.

7. For the Court’s convenience, all of the documents

contained in the supplemental appendix which were

obtained through discovery in the “Morton I, II and III”

litigations are indexed according to footnote or text loca-

tion where Aetna’s amicus brief or memorandum in sup-

port of this Motion reference those documents. Further,

the indexes identify the “Morton I, II and III” discovery

source in which they were included. Some discovery

sources, such as ISO, produced documents which remain

“confidential” under protective order. All of the docu-

ments mentioned in the Mealey’s articles discussed in

Aetna’s amicus brief are public. The few documents which

remain protected are only discussed in the memorandum

submitted in support of the motion to file a supplemental

appendix. For that reason said memorandum and supple-

mental appendix are filed under seal. A description of

each index is set forth at pages 4-6 of Aetna’s Memoran-

dum in Support of this Motion which urges the Court to

file and consider the supplemental appendix. The indexes

are located at Volume IV, Asa 1092-1108.

8. Any document used in this supplemental appen-

dix which was not obtained through discovery in the

“Morton I, II and III” litigations was obtained through

Aetna’s informal discovery efforts, i.e., either through: a)

lla

publicly available document searches; or b) unprotected

document sources.

9. Searches for publicly available and unprotected

documents were made at the following locations: United

States Environmental Protection Agency, policyholder

insurance and manufacturing trade associations, insur-

ance brokers and broker trade associations, state insur-

ance commissions, College of Insurance, various law

libraries and other public libraries.

10. The types of documents which constitute pub-

licly available documents are periodicals, magazine arti-

cles, books, speeches and the like.

11. Unprotected document sources include letters,

memos, deposition transcripts, etc. which are not covered

under any confidentiality agreements or orders.

[ hereby certify that the above statements made by

me are true. | am aware that if any of these statements are

willfully false, | am subject to punishment by the Court.

/s/ Victor C. Harwood, IIT

Victor C. Harwood, III

Dated: June 25th, 1992

Hackensack, New Jersey

12a

TABLE OF CONTENTS TO SUPPLEMENTAL

APPENDIX OF AMICUS CURIAE, AETNA

CASUALTY & SURETY COMPANY

Document Appendix No.

Victor C. Harwood, III, Brian J. Coyle Asal-36

and Edward Zampino, The ‘Frivolity’ of

Policyholder Gradual Pollution Discharge

Claims, 5 Mealey’s Insurance Litigation

Reports No. 40 (August 27, 1991).

Victor C. Harwood, III, Brian J. Asa37-74

Coyle and Edward Zampino, The

Emperor's Illusionist: Policyholders

Retreat From Pollution Exclusion

Extrinsic Evidence (Part One) 6

Mealey’s Insurance Litigation

Reports No. 25 (May 5, 1992)

Victor C. Harwood, III, Brian J. Asa75-108

Coyle and Edward Zampino, The

Emperor's Illusionist: Policyholders

Retreat From Pollution Exclusion

Extrinsic Evidence (Part Two), 6

Mealey’s Insurance Litigation

Reports No. 26 (May 12, 1992)

Victor C. Harwood, III, Brian J. Asal09-125

Coyle and Edward Zampino, The

Occurrence Definition and Extrinsic

Evidence: The Diogenesian Search for

the Reasonable Man, 6 Mealey’s

Insurance Litigation Reports No.

31 (June 16, 1992)

Robert N. Sayler, The Emperor's Asal26-163

Newest Clothes, Revisionism and

Retreat: The Insurer's Last Word on

the Pollution Exclusion, 5 Mealey’s

Insurance Litigation Reports No.

46 (October 8, 1991)

13a

Order granting League of

Municipaliteis and Institute of

Municipal Attorneys Leave to

Appear as Amicus Curiae (May 26,

1992; filed May 29, 1992)

Order granting Allied-Signal, et al

Leave to Appear as Amicus Curiae

(May 26, 1992; filed May 29, 1992)

Notice of Motion and

Memorandum by Allied-Signal, et

al. For Leave to Appear as Amicus

Curiae (filed April 15, 1992)

Court Order in Aetna Casualty &

Surety Co. v. Morton Thiokol Inc., et

al., No. C-3348-86E (N.J. Super. Ch

Div.) uly 30, 1986)

Case Management Order I in Aetna

Casualty & Surety Co. v. Morton

Thiokol, Inc., et al., No. C-3348-86E

(N.J. Super. Ch. Div.) (October 30,

1986)

Morton Thiokol, Inc.’s Amended

Notice to Take Oral Deposition of

a Representative or Representatives

of the Insurance Services Offices

Inc., in Morton Thiokol, Inc. v

General Accident Ins. Co., et al., No

C-3956-85 (N.J. Super. Ch. Div.)

(January 26, 1988)

Morton Thiokol, Inc.’s Notice to

Take Oral Deposition of a

Represenative or Representatives of

the Insurance Services Offices, Inc

in Aetna Casualty & Surety Co. 1

Morton Thiokol, Inc., et al., No

L-41046-87 (N.J. Super. Law Div.)

(January 13, 1988)

Asal64

Asal65

A Sada ] H6- l 78

Asa ] 79- 180

Asal81-185

A Sa l 56- ] 46

Asal97-210

l4a

Certification of Hope G.

Nightingale, Esq. in Aetna Casualty

& Surety Co. v. Morton Thiokol, Inc.,

et al., No. L-41046-87 (N.J. Super.

Law Div.) (March 14, 1988).

Court Order in Aetna Casualty &

Surety Co. v. Morton Thiokol Inc., et

al., No. L-41046-87 (N.J. Super.

Law Div.) (April 22, 1992).

Affidavit of Anne Marie Donovan

in Morton International, Inc. v.

General Accident Insurance Co. of

America, et al., No. A-895-89T3

(N.J. Supreme Court) (May 28,

1992).

Aetna Casualty & Surety Co.'s

Notice to Take Video Tape

Deposition of George Katz in

Aetna Casualty & Surety Co. v.

Morton Thiokol, Inc., et al., No.

C-3348-86E (N.J. Super. Law Div.)

(December 21, 1989).

Transcript of Deposition of George

Katz in, inter alia Aetna Casualty &

Surety Co. v. Morton Thiokol, Inc., et

al., No. L-41046-87 (N.J. Super.

Law Div.) (January 24, 1990;

January 29, 1990) (excerpts).

Letter from Thomas C. Hill to

Christopher J. Watts (March 14,

1990).

Transcript of Deposition of Francis

X. Bruton, Jr. in Morton Thiokol,

Inc. v. Aetna Casualty & Surety Co.,

et al., No. A-8603799 (Ohio Ct.

Com. PI.) (July 31, 1989) (excerpt).

Asa211-214

Asa215-219

Asa220-222

Asa223-224

Asa225-253

Asa254

Asa255

15a

Affidavit of Francis X. Bruton, Ir. Asa256-301

in Morton Thiokol, Inc. v. Aetna

Casualty & Surety Co., et al., No.

A-8603799 (Ohio Ct. Com. P1.),

(September 21, 1989) (attached to

Affidavit are:

Exhibit A: Agenda and Minutes, Asa265-266

Meeting of the General Liability

Governing Committee (March 17,

1970);

Exhibit B: Aetna interoffice Asa268-270

memorandum from R.S. Hansen,

Assistant Vice President, to H.E

Daries, Superintendent (March

20, 1970);

Exhibit C: Agenda and Minutes, Asa272-274

Meeting of the General Liability

Governing Committee (April 15,

1970);

Exhibit D: Aetna interoffice Asa276-278

Memorandum from R.S. Hansen

to H.E. Daries (April 17, 1970);

Exhibit E: Letter from Edward F Asa280-283

Earle to Frank X. Bruton (April

22, 1970);

Exhibit F: Letter from A.J. Hill Asa285-286

to R.C. Lukens (April 27, 1970);

Exhibit G: Letter from F.X Asa288-291

Bruton to Edward F. Earle (May

1, 1970);

Exhibit H: Letter from F.X Asa293-295

Bruton, Ir. to Norman Nachman

(May 5, 1970);

l6a

Exhibit I: Letter from Edward F. Asa297

Earle to Frank X. Bruton (June 2,

1970);

Exhibit J: Letter from F.X. Asa299

Bruton, Jr., Aetna Life &

Casualty, to Edward F. Earle,

IRB (June 5, 1970);

Exhibit K: Personal Injury Asa301

Liability Insurance Endorsement

Form (1-73).

Morton Thiokol, Inc. Answer to Asa302-305

Interrogatory No. 29 in Aetna

Casualty & Surety Co. v. Morton

Thiokol, Inc., et al., No. L-41046-87

(December 3, 1987) (excerpt).

Transcript of Deposition of George Asa306-308

Floyd in Morton Thiokol, Inc. v.

Aetna Casualty & Surety Co., et al.,

No. A-8603799 (Ohio Ct. Com. PI.)

(April 6, 1988) (excerpts).

Morton Thiokol, Inc. interoffice Asa309-314

memorandum from George Floyd

to File (April 13, 1971).

Letter from W.H. Atchison to Asa315-319

Clifford R. Malmstrom (February 6,

1963) and attached Minutes of

Meeting (January 31, 1963 to

February 1, 1963).

Report, Alexander & Alexander, Asa320-326

“Environmental Impairment

Liability” (undated).

Letter from G.W. Floyd to George Asa327

W. Bodamer (October 21, 1981)

attaching

17a

Report by Thiokol Corporation

“Summary of Environmental

Incidents, Claims and Litigation”

(October 9, 19981).

Report by Environmental Risk

Assessment Service (USA), Ltd.

“Report on Thiokol Corporation”

(January 20, 1982).

Agenda, Meeting of Alexander &

Alexander (June 17, 1982).

Court Order in Aetna Casualty &

Surety Co. v. Morton Thiokol, Inc., et

al., No. L-41046-87 (N.J. Super.

Law Div.) (August 1, 1989).

Donald C. Brain, CPCU, Changes,

Possible Problems in the New

Liability Policy, (June 1966).

Letter from George Katz to

Edward F. Earle (April 17, 1961)

with atiached “Report to the Joint

Forms Committee” (April 17,

1961).

Minutes, Meeting of the Joint

Scope of Coverage Subcommittee

(September 19-20, 1961).

“Explanatory Memorandum of

Changes” (filed Feburary 1, 1966).

Richard Rupp, CPCU “Insurance

and Risk Management Glossary”

(1991).

Robert S. Soderstrom, The Role of

Insurance in Environmental

Litigation, XI The Forum 762

(1976).

Asa328-337

Asa338-345

Asa346-347

Asa348-354

Asa355-357

Asa358-364

Asa365-374

Asa375-383

Asa384-387

Asa388-397

18a

Sheldon Hurwitz and Dan D.

Kohane, The Love Canal — Insurance

Coverage for Environmental

Accidents, 50 Ins. Couns. J. 378

(1983).

Garrett L. Joest, III, Will Insurance

Companies Clean the Augean Stables?

~— Insurance Coverage for the Landfill

Operator, 50 Ins. Couns. J. 258

(1983).

Counsel list in Jackson Township v.

American Home Assurance Co., et al.,

No. A-170-81T3 (N.J. Super. App.

Div.) (March 24, 1982).

E. Joshua Rosenkranz, Note, The

Pollution Exclusion Through the

Looking Glass, 74 Geo L.J. 1237,

1240 (1986) (excerpt).

Thomas R. Newman, Liability

Insurance Coverage Principles (Rev.

ed. 1983) (excerpt).

Barry R. Ostrager and Thomas R.

Newman, Insurance Coverage

Disputes (Second Edition) (1989)

(excerpt).

Asa398-404

Asa405-408

Asa409-410

Asa411-416

Asa417-423

Asa424-433

19a

Rowland H. Long, L.L.M., The Law

of Liability Insurance, Vol. 3 (1969)

(excerpts).

Rowland H. Long, L.L.M., The Law

of Liability Insurance, Vol. 2 (1992)

(excerpts).

Letter from Frank Sullivan, Kansas

Commissioner of Insurance, to

Lawrence E. Brown, Jr., IRB (June

11, 1970).

Letter from Lawrence E. Brown,

Jr., IRB, to Frank Sullivan, Kansas

Commissioner of Insurance (June

18, 1970).

Order of Kentucky Insurance

Commissioner in In the Matter of

General Liability Insurance

Contamination (June 24, 1970)

Letter from R. Stanley Smith,

Manager, I.R.B. to Robert G.

Gibson, Rating Director,

Mississippi Insurance Commission

(June 1, 1970)

Letter from Richard E. Stewart,

Principal Insurance Examiner

Rating Bureau, State of New York

Insurance Department to Nicholas

J. Pandullo, Manager, IRB (June 2,

1970)

Letter from Milton S. Troxell, Texas

State Board of Insurance, to

Lawrence E. Brown, Jr., Manager,

IRB (June 2, 1970)

IRB interoffice corresondence from

R.G. Foster to Helen O’Brien (June

1, 1970)

Asa434-438

Asa439-443

Asa444

Asa445-446

Asa447

Asa448

Asa449

Asa450

Asa451

20a

Letter from Lawrence E. Brown, Jr.

of IRB to Texas State Board of

Insurance (May 28, 1970)

Letter from B.I. Farrell of IRB to

Hon. Samuel H. Weese of State of

West Virginia Insurance

Department (August 28, 1970)

Letter from R. Stanley Smith,

Manager, IRB to Emory Lipscomb

(June 10, 1970)

Letter from Emory Lipscomb,

Rating Deputy, Georgia

Comptroller General to R. Stanley

Smith, Manager, IRB (May 29,

1970).

Aetna interoffice memorandum

from David L. Marshall to James

C. Stamos (June 19, 1970).

IRB interoffice corresondence from

Henry E. Griffendorf, Jr. to

Norman Nachman (June 16, 1970)

Letter from Ted. C. Tow of

Insurance Department of Iowa to

Henry E. Griffendorf, Jr., of IRB

(June 4, 1970)

Letter from Henry E. Griffendorf,

Jr., IRB to Hon. Russell E.

VanHooser, Michigan

Commissioner of Insurance (June

16, 1970)

Letter from Henry E. Griffendorf,

Jr., IRB to Hon. Warren Dirks,

South Dakota Insurance

Commissioner (June 30, 1970)

Asa452

Asa453

Asa454

Asa455-456

Asa457

Asa458

Asa459

Asa460

Asa461

2la

IRB interoffice corresondence from

B.I. Farrell to Norman Nachman

(May 27, 1970)

IRB interoffice corresondence from

B.I. Farrell to Helen O’Brien, State

Rate Filing Division (May 27, 1970)

Letter from Robert L. Haydon, Jr.,

of Government of the District of

Columbia Department of Insurance

to B.I. Farrell, IRB (May 25, 1970)

Letter from IRB to Board Members

and Associate Members (June 23,

1970).

Letter from R.G. Foster of IRB to

Milton S. Troxell, Director, Texas

State Board of Insurance (April 20,

1970).

Letter from Manager, IRB to

Coimmissioner of Insurance, Puerto

Rico (November 30, 1970).

Letter from K.D. Gill, Assistant

Manager of Government and

Industry Relations to Robert E.

Holcombe, Actuary North Carolina

Department of Insurance (May 12,

1972).

Order of West Virginia Insurance

Department in Proceedings before

Samuel H. Weese, Insurance

Commissioner of West Virginia

(August 19, 1970).

Asa462

Asa463

Asa464

Asa465-467

Asa468

Asa469-470

Asa471

Asa472-479

22a

Transcript of Deposition of Richard

E. Stewart in Shell Oil Company v.

Accident and Casualty Insurance

Company of Winterthur, No. 278953,

Ca. Sup. Ct., San Mateo County

(September 29, 1987) (excerpts).

Letter from Donald W. Brown,

W.Va. Deputy Commissioner of

Insurance to Walter R. Sparks, Jr.

of Ins. Co. of N. America (March

30, 1970).

Transcript of Deposition of Donald

W. Brown in Aerojet — General

Corporation, et al. v. Argonaut

Insurance Company, Inc., et al., No.

262425, Ca. Sup. Ct., San Mateo

County (September 11 and October

1, 1990) (excerpts).

Timothy C. Russell, Thomas S.

Schaufelberger and Alan C.

Nessman, Lawyers Say Insureds Are

Attempting To Reinvent History,

Mealey’s Insurance Litigation

Reports No. 10 (March 23, 1988).

Seminar, Johnson & Higgins,

“Protecting Your Assets Against

Pollution Liabilities” (November

4-5, 1982) (excerpt).

Special Report: Pollution Exclusion

Dissected During Bruton Deposition,

Mealey’s Insurance Litigation

Reports Vol. 4 No. 8 (February 27,

1990).

Asa480-484

Asa485

Asa486-494

Asa495-505

Asa506-508

Asa509-518

23a

Affidavit of Francis X. Bruton, Jr. Asa519-551

in New Castle County v. Hartford

Accident & Indemnity Co., et al.,

No. CA 85-436-JLL (U.S. Dist. Ct.

Del.) (September 28, 1987)

(attached to affidavit are:

Exhibit A: Agenda and Minutes, Asa526-527

Meeting of the General Liability

Governing Committee (March 17,

1970);

Exhibit B: Aetna interoffice Asa528-530

memorandum from R.S. Hansen,

Assistant Vice President, to H.E.

Daries, Superintendent (March

20, 1970);

Exhibit C: Agenda and Minutes, Asa531-533

Meeting of the General Liability

Governing Committee (April 15,

1970);

Exhibit D: Aetna interoffice Asa534-536

Memorandum from R.S. Hansen

to H.E. Daries (April 17, 1970);

Exhibit E: Letter from Edward F. Asa537-540

Earle to Frank X. Bruton (April

22, 1970);

Exhibit F: Letter from A.J. Hill Asa541-542

to R.C. Lukens (April 27, 1970);

Exhibit G: Letter from F.X. Asa543-546

Bruton to Edward F. Earle (May

1, 1970);

Exhibit H: Letter from F.X. Asa547-549

Bruton, Jr. to Norman Nachman

(May 5, 1970);

24a

Exhibit I: Letter from Edward F.

Earle to Francis X. Bruton (June

2, 1970);

Exhibit J: Letter from FX.

Bruton, Jr., Aetna Life &

Casulaty, to Edward F. Earle,

IRB (June 5, 1970).

Note, Developments in the Law-Toxic

Waste Litigation, 99 Harv. L. Rev.

1458 (1986) (exerpts).

John M. Briggs, Accident vs.

Occurrence, Bests Fire and Casualty

News 103 (December 1953)

(excerpt).

Richard A. Schmalz, Taking the

Suddenness Out of Accident,

(undated) (excerpt).

Robert F. Bauer, LLB of Johnson &

Higgins, “Comparison 1955-1966

Comprehensive General Liability

Policies” as attached to Letter from

Dorrance Sexton, Chairman,

Johnson & Higgins to “To Our

Clients,” (excerpt).

S.S. Huebner, Kenneth Black, Jr.,

and Robert S. Cline, Accident vs.

Occurrence Property and Liability

Insurance, Prentice (1968).

S.S. Huebner, Kenneth Black, Jr.,

and Robert S. Cline, Property and

Liability Insurance (2d ed. 1976)

(excerpts)

Asa550

Asa551

Asa552-556

Asa557-559

Asa560-561

Asa562-569

Asa570-573

Asa574-579

25a

S.S. Huebner, Kenneth Black, Jr.,

and Robert S. Cline, Property and

Liability Insurance (3d ed. 1982)

(excerpts).

James M. Johnstone & Frederick S.

Ansell Insured Counsel Doubletalk:

The Fallacies in Anderson and

Passannante’s Arguments Concerning

the Interpretation of ‘Sudden and

Accidental’ in Boiler and Machinery

Policies, 5 Mealey’s Insurance

Litigation Reports No. 10 (January

15, 1991).

Minutes, Meeting of General

Liability Rating Committee

(November 17-19, 1964) (excerpt).

Mutual Insurance Rating Bureau

(“MIRB”), Memorandum — Revision

of Manuals of Liability Insurance te

Implement Revised General Liability

Policy Forms and Endorsements

(Effective July 1, 1966) as attached

to Letter from David E. Kuizenga,

Secretary MIRB to Hon. Charles R.

Howell, Ins. Commissioner, N.].

(February 16, 1966).

Robert E. Keeton, Insurance Law

Rights at Variance with Policy

Provisions, 83 Harv. L. Rev. 961

(1970).

Alexander and Alexander National

Environmental Action Team

Pamphlet (March 1, 1981) (excerpt).

Alexander and Alexander 1979

Annual Report (1979) (excerpt)

Asa580-585

Asa586-592

Asa593-595

Asa596-597

Asa598-622

Asa623-624

Asa625-626

26a

Johnson & Higgins interoffice

memorandum from Elten

Diehlmann to Gilbert Buckley

(September 23, 1983).

Seminar, Johnson & Higgins,

“Pollution Liability Legislation and

Insurance” (undated) (excerpt).

Minutes, Johnson & Higgins

Casualty Department New

Business Meeting (May 11, 1970).

Douglas McLeod, Grappling With

Pollution Insurance, Business

Insurance, (November 28, 1983).

8 Frank B. Hall Newsletter, No. 24

(June 13, 1979).

Douglas E. Gladstone, CGL

Pollution Exclusion, Business

Insurance, (October 29, 1984).

NAIB, “Membership Survey on

Comprehensive General Liability

Policy” (March 24, 1978) (excerpt).

USEPA, “Background Document -

Resource Conversation and

Recovery Act — Subtitle C -

Hazardous Waste Management”

(April 25, 1980) (excerpt).

CMA, Comments . . . on EPA's

Proposed Financial Requirements

Implementing Section 3004 of RCRA

(July 18, 1980).

CMA, Comments ... under

(CERCLA) (July 12, 1983) (excerpt).

Asa627-629

Asa630-638

Asa639-643

Asa644-645

Asa646-649

Asa650-653

Asa654-655

Asa656-678

Asa679-695

Asa696-710

27a

Letter from L.D. Johnson, Rohm &

Haas to USEPA (March 16, 1979)

(excerpt).

Letter from Daniel B. Rathburn,

V.P. American Petroleum Institute

to USEPA, Comments on Proposed

Regulations (July 18, 1990)

(excerpt).

Letter from Edith F. Lichota of

RIMS to Docket Clerk, Office of

Solid Waste, USEPA Comments on

Proposed Regulations (July 15, 1980)

Alexander & Alexander, RIMS

Seminar Update of Environmental

Impairment Insurance (April 21,

1982).

15 N.J. Reg. 1800-1804, Vol. 15, No

21 (November 7, 1983)

20 N.J. Reg. 2650, Vol. 20, No. 21

(Novembe-: 7, 1988)

N.J. Admin. Code 7:26-9.10(d)(3-4)

(26-231 to 233); N.J. Admin. Code

7:26-9.13(a) and (b) (26-261 to 264):

N.J. Admin. Code 7:26-Appendix

A(g) and (h) (26-278.7 to 278.9)

Thomas A. Caldwell, A

Multinational’s Environmental

Liability Problems, International

Insurance Report, (September

1986). °

“Who’s Who in Risk Management”

(1991) (excerpt)

Asa711-714

Asa71 5-719

Asa720-724

Asa725-731

Asa732-737

Asa738-739

Asa740-750

- i)

Asa75 l -7

and af -|

ASa/s SO-/ oy,

28a

John W. Milligan, Risk Managers

Design Own Pollution Liability Form,

Business Insurance (May 3, 1982).

Douglas McLeod, Most Firms Plan

to Insure Gradual Pollution Risks,

Business Insurance (January 31,

1983).

7 The John Liner Letter, No. 6

Bureau Action, (May 1970)

(excerpt).

G.R.E. Bromwich, Pollution and

Insurance, Risk Management (April

1971).

Gail A. Hayes, Piigging the Gap in

Pollution Liability Coverage, 12

Rough Notes (November 1979).

Tony Levine, Unnatural

Catastrophes, The Cost of Pollution,

The Review (July 24, 1981).

Lisa Hoffman, The Pollution

Liability Tug of War, 128 Rough

Notes, 30 (August 1985).

David J. Dybdahl, EIL Coverage:

Action and Reaction, Risk

Management 9 (September 1985).

Day Lee, RCRA, CERCLA and

Insurance, Insurance Week (May 18,

1984).

Address by Robert Hatcher, NAIB

Annual Convention Sea Island,

Georgia (May 28, 1985).

Asa758-759

Asa760-761

Asa762-764

Asa765-771

Asa772-775

Asa776-779

Asa780-782

Asa783-788

Asa789-790

Asa791-802

29a

Webster's New International

Dictonary, “Introduction” (2d ed.

Unabridged 1959).

The Random House Dictionary of the

English Language, (2d ed.

Unabridged 1987).

Frunk & Wagnall’s New Standard

Dictionary of the English Language

(Ist ed. 1963).

Memorandum from George Katz to

L. Senger (March 22, 1961).

Minutes, Meeting of Joint Forms

Committee (May 2, 3, and 4, 1961).

Letter from Norman Nachman to

General Liability Rating Committee

(May 31, 1962).

Letter from Mr. Pandullo to

Norman Nachman (July 23, 1970)

Minutes, Meeting of General

Liability Rating Committee

(October 10-11, 1962).

Report of Proceedings, Mutual

Insurance Technical Conference

(November 18, 1963) (excerpt).

Exhibit I to Memorandum from

Subcommittee on Definition of

‘Occurrence’ to Joint Forms

Committee (October 20-22, 1964).

Asa803-810

Asa811-815

Asa816-820

Asa821-822

Asa823-837

Asa838-844

Asa845

Asa846-849

Asa850-857

Asa858-862

30a

Letter from Robert F. Bauer,

Johnson & Higgins to George Katz,

Aetna Casualty & Surety Co. (July

22, 1966).

Letter from George Katz, Aetna

Casualty & Surety Co. to Robert F.

Bauer, Johnson & Higgins (August

31, 1966).

RIMS, Customer Analysis of the

Comprehensive General Liability

Policy (1968) (excerpts).

Yale Goldman, The Standard

Comprehensive General Liability

Policy From a Manufacturer's Point

of View, 28 CPCU Annals 77 (June

1975).

7 The John Liner Letter, No. 3

(February 1970), (excerpts).

17 The John Liner Letter, No. 8

(July 1980), (excerpts).

John T. Even, The Corporate

Insurance Administrator — Problems

with the 1966 Revised Liability

Policy, II] The Forum, 95 (January

1968).

Letter from Edward F. Earle to

Hon. T. Nelson Parker, Virginia

Commissioner of Insurance

(October 28, 1965).

Herbert P. Schoen, Caused by

Accident (February 1961) (excerpt).

Minutes, Meeting of General

Liability Rating Committee (July

19-20, 1961).

Asa863-870

Asa871-886

Asa887-896

Asa897-905

Asa906-907

Asa908-910

Asa911-918

Asa919-920

Asa921-941

Asa942-950

3la

Statement, George Katz (undated).

Letter from Thomas C. Hill to

Hope G. Nightingale (July 5, 1989).

Chart in Chronological Order of

Asbestos trial exhibits.

Report to the Insurance

Commissioners of New Jersey.

Voorhees v. Preferred Mutual

Insurance Company, No. A-58 (Sept.

Term 1991), slip op. (N.J. June 17,

1992).

SL Industries v. American Motorists

Ins. Co., 248 N.J. Super, 458 (App.

Div. 1991), aff’d No. A-80 (Sept.

Term 1991), slip. op. (N.J. June 17,

1992).

Prefatory Statement to Volume IV

Index: (a)

“Initial ISO Documents”

Index: (b)

“Morton’s Internal Files”

Index: (c)(1) “Industry-Wide ISO

Documents Morton Copied”

Index: (c)(2) “Industry-Wide ISO

Documents Morton Did Not Copy”

Index: (d) “Katz Deposition”

Asa951-957

Asa958-959

Asa960-983

Asa984-1026

Asal1027-1053

Asal1054-1089

Asal1090-1091

Asal1092

Asal1093

Asal1094-1098

Asal1099

Asa1100-1101

32a

Index: (e)(1) “Bruton Deposition-

Morton III”

(e)(2) “Bruton Affidavit-

Morton III”

(e)(3) “Bruton Multi-Case

Deposition and

Affidavit”

Index: (f) “Aetna’s Production”

Index: (g) “Broker Documents”

Index: (h) “Consolidated Asbestos

Coverage Litigation”

Citation Reference Pa1349-1351;

Pal347

5/15/70 Circular — MTI Source:

(a)

5/15/70 Circular — MTI Source:

(e)(1)

5/15/70 Circular — MTI Source: (f)

Citation Reference Asa375-383

2/1/66 Explanatory Memorandum

of Changes — MTI Source: (c)(1)

2/1/66 Explanatory Memorandum

of Changes — MTI Source: (f)

Citation Reference Asal101-104;

Pal1710-1715

11/1/71 Explanatory Memorandum

of Changes — MTI Source: (a)

Asal1102-1103

Asal1104-1106

Asal1107

Asal1108

Asal109

Asa1110-1112

Asal1113-1115

Asa1116-1122

Asa1123

Asal1124-1132

Asal1133

Asal134

Asal1135-1144

MP URIS I eS ak aa

ks Bets

33a

11/1/71 Explanatory Memorandum

of Changes —- MTI Source: (c)(2)

11/1/71 Explanatory Memorandum

of Changes — MTI Source: (f)

Citation Reference Asa265-266

MTI

3/17/70 Agenda & Minutes

Source: (a)

3/17/70 Agenda & Minutes —- MTI

Source: (c)(1)

3/17/70 Agenda & Minutes - MTI

Source: (e)(1)

3/17/70 Agenda & Minutes - MTI

Source: (e)(2)

3/17/70 Agenda & Minutes - MT!

Source: (e)(3)*

3/17/70 Agenda & Minutes - MTI

Source: (f)

Citation Reference Asa268-270

3/20/70 Memo from Hansen to

Daries — MTI Source: (e)(1)

3/20/70 Memo from Hansen to

Daries — MTI Source: (e)(2)

3/20/70 Memo from Hansen to

Daries — MTI Source: (e)(3)

3/20/70 Memo from Hanseri to

Daries — MTI Source: (f)

Asal1145-1154

Asal1155-1164

Asa1165

Asal1166-1169

Asa1170-1171

Asal1172-1173

Asal174-1176

Asal1177-1179

Asal1180-1181

Asal1182

Asal1183-1185

Asa1186-1189

Asal1190-1193

Asal1194-1196

* Each (e)(2) and (e)(3) MTI Source document includes

the Caption page of Bruton’s Affidavit or Deposition.

34a

Citation Reference Asa272-274

4/15/70 Agenda & Minutes

Source: (c)(1)

4/15/70 Agenda & Minutes

Source: (e)(2)

4/15/70 Agenda & Minutes

Source: (e)(3)

4/15/70 Agenda & Minutes

Source: (f)

Citation Reference Asa276-278

MTI

4/17/70 Memo from Hansen to

Daries — MTI Source: (e)(2)

4/17/70 Memo from Hansen to

Daries — MTI Source: (f)

Citation Reference Asa280-283

4/22/70 Letter form Earle to

Bruton — MTI Source: (c)(1)

4/22/70 Letter form Earle to

Bruton — MTI Source: (e)(2)

4/22/70 Letter form Earle to

Bruton — MTI Source: (e)(3)

4/22/70 Letter form Earle to

Bruton — MTI Source: (f)

Citation Reference Asa285-286

Asal1197

Asal1i98-1200

Asal1201-1204

Asa1205-1208

Asal1209-1211

Asal1212

Asal1213-1216

Asal1217-1219

Asal1220

Asal1221-1224

Asal1225-1229

Asal1230-1233

Asa1234-1236

Asal1237

35a

4/27/70 Memo from Hall to

Lukens — MTI Source: (e)(2)

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4/27/70 Memo from Hall to

Lukens — MTI Source: (f)

Citation Reference Asa288-291