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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1245

## Text

| 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,
V.

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
S

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?

ii

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

iv

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

a

Vv

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

vi

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
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Peers ere SUR ED oc pe oune bab eae ae 16

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No. 93-1797
S

In The

Supreme Court of the United States
October Term, 1993

7
INSURANCE COMPANY OF NORTH AMERICA, et al.,
Petitioners,
V.

MORTON INTERNATIONAL, INC.,
Respondent.

S

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.

a

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

~~

10

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.

11

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

12

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

13

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

14

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.

—

15

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.

16

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

17

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

18

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

19

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

20

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).

© We note, as Petitioners concede at page 12 of their Brief,
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.

21

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.

22

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

23

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

:
:
;
2

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

ii

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

iv

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

la

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

2a

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

3a

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.

4a

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.

+ * +

5a

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.

6a

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.

7a

* * *

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.

8a

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.

9a

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

JT
- 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

MTI

MTI

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

sv

35a

4/27/70 Memo from Hall to
Lukens — MTI Source: (e)(2)

Page intentionally left blank

4/27/70 Memo from Hall to
Lukens — MTI Source: (f)

Citation Reference Asa288-291
5/1/70 Letter from Bruton to Earle
~ MTI Source: (c)(1)

5/1/70 Letter from Bruton to Earle
~ MTI Source: (e)(1)

5/1/70 Letter from Bruton to Earle
~ MTI Source: (e)(2)

5/1/70 Letter from Bruton to Earle
~ MTI Source: (e)(3)

Page intentionally left blank

5/1/70 Letter from Bruton to Earle
—~ MTI Source: (f)

Citation Reference Asa293-295
5/5/70 Letter from Bruton to
Nachman — MTI Source: (c)(1)

5/5/70 Letter from Bruton to
Nachman — MTI Source: (e)(2)

5/5/70 Letter from Bruton to
Nachman — MTI Source: (e)(3)

5/5/70 Letter from Bruton to
Nachman —- MTI Source: (f)

Asal1238-1240

Asal124]1

Asal1242-1243

Asal1244

Asal1245-1246
Asa1247-1250
Asal1251-1255
Asa1256-1260

Asal1261l

Asal1262-1269

Asa1270

Asal1271-1273
Asal274-1277
Asal1278-1281

Asal1282-1284

36a

Citation Reference Asa297
6/2/70 Letter from Earle to Bruton
~ MTI Source: (c)(1)

6/2/70 Letter from Earle to Bruton
~ MTI Source: (e)(2)

6/2/70 Letter from Earle to Bruton
~ MTI Source: (e)(3)

6/2/70 Letter from Earle to Bruton
~ MTI Source: (f)

Citation Reference Asa299
6/5/70 Letter from Bruton to Earle
~ MTI Source: (c)(1)

6/5/70 Letter from Bruton to Earle
—~ MTI Source: (e)(2)

6/5/70 Letter from Bruton to Earle
—~ MTI Source: (e)(3)

6/5/70 Letter from Bruton to Earle
—~ MTI Source: (f)

Citation Reference Asa358-364

4/17/61 Letter from Katz to Earle
— MTI Source: (d)

4/17/61 Letter from Katz to Earle
— MTI Source: (f)

Citation Reference Asa365-374

Asal1285

Asal1286

Asa1287-1288

Asal1289-1290

Asal291

Asal1292

Asal293

Asal294-1295

Asa1296-1297

Asal298

Asal299

Asal1300-1305

Asal1306-1312

Asal1313

-

Talay eNO A allaydt BSA D LA, eR ETA aa hes? B.

ee ee ee ee

37a

9/19-20/61 Meeting - MTI Source:

(d)

9/19-20/61 Meeting - MTI Source:

(f)

Citation Reference Asa447
6/24/70 Kentucky Order - MTI
Source: (c)(1)

6/24/70 Kentucky Order - MTI
Source: (f)

Citation Reference Asa465-467

6/23/70 Circular - MTI Source:
(c)(1)

6/23/70 Circular - MTI Source: (f)

Citation Reference Asa560-561

Schmalz Article (undated) — MTI
Source: (c)(1)

Schmalz Article (undated) —- MTI
Source: (d)

Schmalz Article (undated) - MTI
Source: (f)

Citation Reference Asa823-837

5/2-4/61 Minutes - MTI Source:
(c)(1)

Asa1314-1323

Asai324-1332

Asal1333

Asal334

Asal1335

Asal336

Asa1337-1339

Asal1340-1342

Asal1343

Asal344-1345

Asal1346-1347

Asa1348-1349

Asal1350

Asal351-1365

38a

5/2-4/61 Minutes —- MTI Source:
(d)

5/2-4/61 Minutes — MTI Source:
(h)

Citation Reference Asa838-844
5/31/62 Letter from Nachman to
GLRC —- MTI Source: (c)(1)

5/31/62 Letter from Nachman to
GLRC —- MTI Source: (d)

5/31/62 Letter from Nachman to
GLRC — MTI Source: (h)

Citation Reference Asa846-849

10/10-11/62 Minutes — MTI
Source: (d)

10/10-11/62 Minutes — MTI
Source: (c)(1)

Citation Reference Asa850-857

11/18/63 MIRB Proceedings —- MTI

Source: (c)(2)

11/18/63 MIRB Proceedings — MTI

Source: (d),(h)

Citation Reference Asa858-862

Exhibit I — MTI Source: (c)(1)

Asal366-1380

Asa1381-1399

Asa1400

Asal1401-1407

Asal1408-1414

Asa1417-1423

Asal1422

Asa1423-1426

Asal1427-1433

Asal1434

Asal1435-1443

Asal1444-1452

Asal1453

Asal1454-1458

39a
Exhibit I - MTI Source: (d)

Exhibit I - MTI Source: (f)

Page intentionally left blank

Citation Reference Asa871-886

8/31/66 Letter from Katz to Bauer
~ MTI Source: (d)

8/31/66 Letter from Katz to Bauer
~ MTI Source: (f)

8/31/66 Letter from Katz to Bauer
~ MTI Source: (h)

Citation Reference Asa919-920

10/28/65 Letter from Earle to
Parker — MTI Source: (c)(1)

10/28/65 Letter from Earle to
Parker —- MTI Source: (d)

Citation Reference Asa921-941

Schoen Article (2/61) — MTI
Source: (d)

Schoen Article (2/61) — MTI
Source: (h)

Schoen Article (2/61) — MTI
Source: (c)(1)

Asal1459-1467

Asa1468-1470

Asal147]1

Asal472

Asal473-1477

Asal1478-1482

Asal1483-1487

Asal1488

Asa1489-1490

Asal1491-1492

Asal1493

Asal494

Asal495-1496

Asal1497-1498

40a

Citation Reference Asa942-950

7/19-20/61 Minutes GLRC - MTI
Source: (c)(1)

7/19-20/61 Minutes GLRC —- MTI
Source: (d)

5/5/92 Notice of Motion of New
Jersey State League of
Municipalities to Appear as Amicus
Curiae

Brief of Amicus Curiae New Jersey

League of Municipalities

Asal49?

Asa1500-1508

Asa1509-1517

Asa1518-1520

Asal1521-1522

4la

SUPREME COURT OF NEW JERSEY
Docket No. 34,341

Plaintiff(s) - Appellant/Petitioner

MORTON INTERNATIONAL,
INC.,

VS.

Defendant(s) -
Respondents/Cross-Petitioners

GENERAL ACCIDENT
INSURANCE COMPANY
OF AMERICA, et al.

ee Nee Nee ee ee ee ee ee See See es

BRIEF OF AMICUS CURIAE AETNA CASUALTY &
SURETY COMPANY

STATEMENT OF THE ISSUES

Aetna is firmly committed to the proposition that the
policy language in dispute is clear and unambiguous. No
extrinsic evidence is required to demonstrate its plain
meaning. Aetna is aware, however, that, like plaintiff
(also sometimes referred to as “Morton”, “Morton
Thiokol”, “Thiokol” or “MTI”) herein, policyholder liti-
gants and amici curiae cite out of context excerpts of

extrinsic evidence, including the “drafting” and “regula-
tory” histories of the CGL policies, and cases referring to

42a

such excerpts. Aetna has compiled a full history demon-
strating 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.

+ + +

Respectfully submitted,
/s/ Victor C. Harwood, III

Victor C. Harwood, III
Brian J. Coyle

Edward Zampino
HARWOOD LLOYD
Counsel for Amicus Curiae,
Aetna Casualty & Surety
Company

Denes dann a

43a

Harwoop Lioyo
COUNSELLORS AT LAW
July 21, 1992

Honorable Justices of the
Supreme Court of New Jersey
Hughes Justice Complex
CN-970

Trenton, NJ 08625

RE: Morton International, Inc. v. General] Accident
Docket No. 34,341

To The Honorable Justices of the New Jersey Supreme
Court:

R. 2:6-11(d) authorizes the filing of a letter regarding
recent relevant cases. Policyholder amici briefs have cited
and rely quite heavily upon the recent case of Joy Technol-
ogies v. Liberty Mutual, No. 20153 (W. Va. Supreme Ct.,
June 11, 1992).1 That case placed great emphasis upon a
Declaration submitted by former Insurance Commis-
sioner, Samuel H. Weese, in 1988 (slip op. at 15) in reach-
ing its conclusion that insurance representatives
represented to the commissioner that the pollution exclu-
sion only clarified and restated occurrence coverage.
Such Declaration is stated to vindicate Broadwell and
“... proves the correctness of its holdings .. . ”2

The Court should be made aware of on-going devel-
opments in the Joy Technologies case. On July 7, 1992,

! Brief of amici Allied-Signal, Inc., at 43, 47, 50, 54, 55-56, 58:
brief of amicus League of Municipalities, at 32, 35 n.36, 36-37
n.37, 40, 44-46.

* Brief of amicus, League, at 44.

44a

former Commissioner Weese submitted a new affidavit
(copy enclosed herewith). Liberty Mutual, defendant in
Joy, has filed that affidavit with the West Virginia
Supreme Court in support of its Petition for Rehearing.
Liberty Mutual pointed out in its Petition that Weese
stated his 1988 affidavit “” . . . does not accurately reflect
his recollection or the extent of his involvement in the
hearing.”? This affidavit was publicly published and edi-
torially commented upon in 6 Mealey’s Insurance Litigation
Reports No. 35 (July 21, 1992).

Weese’s July 7, 1992, affidavit is also submitted here-
with for inclusion in Aetna’s supplemental appendix as
page Asal523 in further support of Aetna’s motion for
leave to expand the record filed with this Court on June
26, 1992, which motion is presently pending unheard.

Respectfully submitted,

/s/ Victor C. Harwood, III
Victor C. Harwood, III

> Petition of Liberty Mutual, at 5.

45a

AFFIDAVIT

I, Samuel H. Weese, do depose as follows:

From 1969 to 1975, I held the position of Insurance
Commissioner of West Virginia. In July of 1970, a
hearing was held regarding the effect of various
exclusions offered for approval including the quali-
fied “sudden and accidental” pollution exclusion sub-
mitted by the Mutual Insurance Rating Bureau and
the Insurance Rating Board.

I did not actively participate at the hearing or in the
pre-hearing or post-hearing filing process. Although
present at the hearing, as Insurance Commissioner, |
appropriately delegated the filing process to others. I
was not involved in the discussions of the legal com-
plexities underlying the coverages provided by the
policies as amended by the addition of the proposed
pollution exclusion. I recall entering the hearing with
the belief that coverage was generally excluded for
normal operational polluting events and premiums
charged did not reflect such coverage under the 1966
CGL policy. I also recall leaving the hearing with an
assumption that, with the addition of the pollution
exclusion, there continued to be no general coverage
for normal operational polluting events. Therefore,
without additional analysis, I assumed that the exclu-
sion did not alter coverage, as none was intended
initially.

The affidavit executed by me on November 11, 1988
in the FMC v. Liberty Mutual case does not accurately
reflect my recollection as it tends to suggest that my
involvement was extensive and that my memory of
events was clear. In fact, my involvement was mini-
mal and my recollection is only that there was gener-
ally no coverage for polluting events. To go further

46a

would be to misrepresent my involvement in and my
memory of such events.

4. In 1970, I understood that a “sudden” event was one
which was identifiable in time and place. I also knew
that an “accident” was an insurance term which con-
tained a “sudden” element. In addition, I understood
that the language of the occurrence definition focused
upon unexpected or unintended damage.

5. The fact that the pollution exclusion was approved in
West Virginia only as applicable to new or renewal
policies and could not be attached to existing policies
tends to indicate that the exclusion was generally
perceived as a restriction.

/s/ Samuel H. Weese
SAMUEL H. WEESE

Dated: July 7, 1992
/s/ Mary Ann Brunett
Notary Public

47a

APPENDIX E
SUPREME COURT OF NEW JERSEY
DOCKET NO. 34,341

MORTON INTERNATIONAL,
INC.,

Plaintiff-Petitioner,
V.

GENERAL ACCIDENT
INSURANCE COMPANY
OF AMERICA, et al.,

Defendants-Respondents.

PETITIONER’S BRIEF IN RESPONSE
TO RESPONDENTS’/CROSS-APPELLANTS’
BRIEF ON POLLUTION EXCLUSION AND

“DAMAGES” CLAUSES

PRELIMINARY STATEMENT

The carriers ask this Court to believe that when they
imposed the pollution exclusion clause in 1970, without
fanfare and without the reduction of so much as one
dollar of premium to the insureds, they intended to revo-
lutionize the coverage afforded pollution risks so that the
vast majority of pollution claims would for the first time
be uninsurable. They have convinced some courts
throughout the country of this intention, but they have
not convinced New Jersey courts since 1975, nor have

48a

they convinced either the trial court or the Appellate
Division in this case.

New Jersey’s consistent body of reported case law
supporting the Appellate Division’s construction of the
“pollution exclusion” clause (see, Broadwell Realty v. Fidel-
ity and Casualty Co. of New York, 218 N.J. Super. 516 (App.
Div. 1987)) is compelling in its reasoning because it is
driven by the principle, reaffirmed repeatedly by this
Court, that policy language supporting more than one

reasonable interpretation must be construed in favor of
coverage. Although recognizing this controlling principle
of construction, the carriers nonetheless argue, in the face
of clearly conflicting evidence, that this Court should
limit the broad policy language to one narrow meaning.

To reach the result urged by the carriers, this Court
will have to ignore the abundant evidence considered by
Broadwell and other courts, including: that the primary
dictionary definition of “sudden” is unexpected; that
insurance industry drafting precedent supports this inter-
pretation of “sudden”; that the insurance industry’s fil-
ings before state regulatory boards and the carriers’ own
representations characterized the pollution exclusion
clause as a mere clarification of existing coverage.

* * *

That the pollution exclusion may be reasonably inter-
preted to support Morton’s position is further confirmed
by contemporaneous statements made by representatives
of the insurance industry when the pollution exclusion

49a

was promulgated.? The Appellate Division researched
and reviewed statements of the Insurance Rating Board,
the carriers’ policy drafting group, that the pollution
exclusion was merely a clarification of the occurrence
definition, Broadwell, 218 N.J. Super. at 534 n.1. Based in
part upon these contemporaneous interpretations by the
carriers, the Appellate Division concluded that the phrase
“sudden and accidental” must be interpreted as a restate-
ment of the definition of occurrence in order to protect
the reasonable expectations of the insured. 218 N.J. Super.
at 536. Other courts have noted,

[t}hat insurers publicly marketed the exclusion
as a Clarification, rather than a restriction of
coverage, further indicates that “sudden and
accidental” may mean, as the County suggests,
unexpected and unintended. At the very least,
we think that such comments on the part of the
insurers corroborate the County’s claim that the
phrase is ambiguous.

New Castle, 933 F.2d at 1198.

Similarly, the Supreme Court of Georgia looked to
the contemporaneous interpretations of the insurance
industry when it determined that the phrase “sudden and
accidental” was coextensive with “unexpected and unin-
tended.” Claussen v. Aetna Casualty & Sur. Co., 259 Ga.
333, 380 S.E.2d 686, 689 (1989). See also Diamond Shamrock,
J. Super. at __. (slip op. at 47-48), where the court

% Some of the insurance industry’s contemporaneous inter-
pretations of that new form, suggesting its purpose was clari-
fication, were presented to Judge Huot as part of the various
cross-motions for summary judgment and are part of the record
on this appeal (Pa 1341-1354; 1706-1724).

50a

referred to contemporaneous public statements made by
amicus Aetna as disclosing Aetna’s “common understand-
ing of the meaning of the standard pollution exclusion [as
being] in accordance with Broadwell.”

The carriers’ interpretation of the pollution exclusion
clause as a mere clarification of the occurrence definition
is further evidenced by the lack of any reduction in
premiums when the clause was added to the policies.
Had the pollution exclusion been drafted with the intent
to substantially reduce or eliminate coverage, as Respon-
dents now argue, clearly some reduction in premium
would have accompanied its introduction.

Respondents attempt to shield the conte raneous
interpretations of their own industry from thir Court by
arguing that such extrinsic evidence may not be used to
alter or vary the terms of the insurance contracts.!° This
argument is not only misleading, it is wrong as a matter
of law. While it is true that extrinsic evidence is not

10 The defendants also argue that extrinsic evidence is
never admissible to demonstrate a party’s subjective intent,
relying upon Saul v. Midlantic Nat'l Bank/South, 240 N.J. Super.
62 (App. Div.), certif. denied, 122 N.J. 319 (1990), and Kook v.
American Sur. Co. of New York, 88 N.J. Super. 43 (App. Div. 1965).
This line of cases is inapposite to the case at bar. In both Saul and
Kook, a party to the contract was attempting to introduce evi-
dence of its own unexpressed subjective intent. The courts in
both cases correctly held that such unexpressed intentions were
irrelevant to the interpretation of the contract. Saul, 240 N.J.
Super. at 77; Kook, 88 N.J. Super. at 48. In the instant case, the
relevant extrinsic evidence relates to the objective understand-
ing of the parties as documented in the express representations
of the insurance industry to various regulatory bodies and the
public at large.

" |

5la

normally admitted to alter or vary the terms of an unam-
biguous contract, this Court has long held that extrinsic
evidence may be used to interpret the terms of a contract,
noting that “[s]urrounding circumstances” may shed
light on the intent of the contracting parties. Communica-
tion Workers of America, Local 1087 v. Monmouth County Bd.
of Social Servs., 96 N.J. 442, 452 (1984); Atlantic Northern
Airlines v. Schwimmer, 12 N.J. 293, 302 (1953); Harker v.
McKissock, 12 N.J. 310, 322-23 (1953). This interpretive
function is especially important when dealing with com-
plex insurance contracts that, as this Court has noted, are
often difficult to understand. Sparks, 100 N.J. at 335."!
Thus, this Court is entitled to look to the insurance indus-
try’s contemporaneous interpretations of the exclusion in
the record and to the public material contained in
reported cases and published reference sources, and in so
doing confirm that the phrases “sudden and accidental”
and “discharge, dispersal, release or escape” are suscept-
ible to more than one meaning.

Respondents argue that those courts that have con-
sidered the statements of the insurance industry inter-

preting the pollution exclusion clause as a clarification of

11 We note that amicus curiae, Aetna, argues for the inclu-
sion of this material. Counsel’s Certification in Support of
Motion for Leave to Appear as Amicus Curiae at (ll. Whether
this conflict results from strategy or concern over the state of the
extrinsic evidence itself, the disagreement only serves to rein-
force the inherent ambiguity of the standard form exclusion.
This Court has gone so far as to hold that, with regard to
insurance contracts, resort to extrinsic evidence is proper even
in the face of an unambiguous insurance policy. Werner Indus-
tries v. First State Ins. Co., 112 N.J. 30, 39 (1988).

52a

existing coverage were misled. They suggest that there is
other evidence indicating some members of the industry
intended the exclusion to limit coverage. Respondents’
Brief at 44 n. 29. Regardless of the underlying validity of
their argument, in so arguing Respondents concede the
point. That the pollution exclusion clause was interpreted
differently by members of the insurance industry, and
that one of these interpretations supports Morton’s posi-
tion, is irrefutable proof that the clause is susceptible to
more than one reasonable interpretation and should be
construed so as to favor coverage.

+ ” +

Respectfully submitted,

ARCHER & GREINER

A Professional Corporation
Attorneys for Plaintiff-Petitioner,
Morton International, Inc.

/s/ Edward C. Laird
GEORGE F. KUGLER, JR.
EDWARD C. LAIRD

Dated: June 8, 1992
OF COUNSEL

Thomas C. Hill
Taft, Stettinius & Hollister

ON THE BRIEF:
GARY J. LESNESKI

ee
SN

53a

APPENDIX F
MORTON INTERNATIONAL, — : SUPREME
INC., : COURT
nee : OF NEW
Plaintiff-Petitioner : JERSEY
v. : DOCKET NO.
GENERAL ACCIDENT 2 AAI

INSURANCE COMPANY
OF AMERICA, et al.,

Defendants-Respondents

BRIEF AMICI CURIAE OF ALLIED-SIGNAL, INC., THE
AMERICAN FIBER MANUFACTURERS ASSOCIATION,
THE AMERICAN PETROLEUM INSTITUTE, ARM-
STRONG WORLD INDUSTRIES, INC., ATHLONE
INDUSTRIES, INC., THE BOC GROUP, INC., THE
CHEMICAL MANUFACTURERS ASSOCIATION,
FLINTKOTE CO., HANSON INDUSTRIES, INTERNA-
TIONAL BUSINESS MACHINES CORPORATION, Se
BAKER, INC., NESTLE FOOD COMPANY, OLIN COR-
PORATION, OWENS-ILLINOIS, INC., PUBLIC SERVICE
ELECTRIC & GAS COMPANY, REICHHOLD CHEMI-
CALS, INC., ROHM AND HAAS COMPANY, SAFETY
LIGHT CORPORATION, SANDVIK, INC., SCHERING-
PLOUGH CORPORATION, USR INDUSTRIES INC.,
WARNER-LAMBERT COMPANY, WASTE MANAGE-
MENT, INC., AND WESTINGHOUSE ELECTRIC COR-
PORATION

* . *

Fortunately, we now have received, within just the
last week or so, the authoritative answer of the West
Virginia Supreme Court of Appeals to any such argu-
ment. Joy Technologies, Inc. v. Liberty Mut. Ins. Co., No.

54a

20153 (W. Va. June 11, 1992)... . The West Virginia high
court looked closely at the history we have recited,
including of course particularly the West Virginia docu-
ments. It found unequivocally that the insurance groups
that represented Liberty Mutual, the insurer before the
court in the Joy Technologies case (and a party to this
appeal), had “unambiguously and affirmatively repre-
sented to the West Virginia Insurance Commission that
the [pollution exclusion] did not alter coverage under the
policies involved” — coverage that extended to pollution
damage “even if it resulted over a period of time and was
gradual, so long as it was not expected or intended.”
Addendum B, slip op. at 17. Elsewhere the court spoke of
Liberty Mutual as having made “studied unambiguous,
official and affirmative representations” inconsistent with
the temporal meaning attributed to the “sudden” of the
pollution exclusion by an intermediate appellate court in
Pennsylvania,”4 whose law Liberty Mutual was urging
should be applied. Id. at 10. In those circumstances, the
court said, to apply Pennsylvania law “would be incon-
sistent with, and contrary to, the public policy of this
State.” Id. The court’s response to the latter-day insurance
company argument thus was categorical: The insurance
companies represented that the exclusion was a mere
clarification and did not alter coverage; the state’s insur-
ance commissioner approved the pollution exclusion we
are concerned with (and another not relevant to this case)

74 Lower Paxton Township v. United States Fidelity & Guar.
Co., 383 Pa. Super. 558, 576-77, 557 A.2d 393, 402 (1989) (holding
that the exclusion is unambiguous).

CC

3 "CRAM

55a

“only ‘to the extent that said exclusions are mere clari-
fications of existing coverages,’ ” Id. at 17, and no insur-
ance company was going to be allowed to avoid the effect
of its “studied, unambiguous, official and affirmative”
representations. Even the insurers cannot seriously con-
tend that the standard form pollution exclusion was
intended to mean one thing in West Virginia —- a mere
clarification of coverage - and something else, a huge
cutback in coverage, in all the other states, including New
Jersey.

C. EPA and NJDEP Regulations Referred to by the
Insurers Are Irrelevant to the Question of the
Meaning of a Provision in a Private Contractual
Insurance Agreement.

The insurers refer to certain United States Environ-
mental Protection Agency and New Jersey Department of
Environmental Protection regulations (which distinguish
between “sudden” and “gradual” occurrences) as “highly
relevant” to the question of the meaning of the word
“sudden” in the comprehensive general liability policy.
(INA Cross-App. Br. 24-28.) .. .

The regulations are further irrelevant in that they
were promulgated in the late 1970s and early 1980s, years
after the pollution exclusion was developed and
approved. Any such regulations could be relevant only if
they shed light on a usage current at the time the pollu-
tion exclusion was approved. And, as was shown above
(pp. 11-14), when the industry presented the pollution
exclusion to state regulatory authorities in the early
1970s, it said it did not mean the word “sudden” to have

56a

a durational connotation, and such a connotation had not
been a part of the industry’s usage of the term. Because
the state regulatory authorities relied on the industry's
representations, the insurers are bound by what they said
at that time. See supra note 67. 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
“studied, unambiguous, official and affirmative” repre-
sentations on which they mean public authorities to rely.

(See supra pp. 55-56.)

*

* *

/s/ Clyde A. Szuch/dwk
CLYDE A. SZUCH
DONALD W. KIEL

Pitney, Hardin, Kipp &
Szuch

Attorneys for The American
Fiber Manufacturers
Association, The American
Petroleum Institute, The
Chemical Manufacturers
Association, International
Business Corporation, Olin
Corporation and Rohm and
Haas Company

57a

APPENDIX G

SUPREME COURT OF NEW JERSEY
DOCKET NO. 34,341

cccecces — Scecwesesssnseessasssceucs X

MORTON INTERNATIONAL,
INC.,

Plaintiff-Appellant,
vs.

GENERAL ACCIDENT
INSURANCE COMPANY
OF AMERICA, et al.,

Defendants-Respondents.

AMENDED BRIEF OF AMICUS CURIAE NEW JERSEY
LEAGUE OF MUNICIPALITIES

* * *

C. The Insurance Industry Sought Approval of the
Exclusion Clause on the Basis That it Was Only Clari-
fication of Existing Coverage.

The IRB and the National Bureau submitted the pollu-
ter’s exclusion to state insurance commissioners for
approval.*© The insurance industry specifically represented

*%© Although the actual industry filings in New Jersey are
not in the record below, the insurance companies have brought
them into question by seeking to challenge Broadwell. Copies of
the original filing by the Mutual Insurance Rating Bureau have

58a

to insurance commissioners that the exclusion was intended
merely as a clarification of the “occurrence” definition, and
that coverage was excluded only for intentional pollution:

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 defini-
tion of occurrence. The above exclusion clarifies
this situation so as to avoid any question of
intent. Coverage is continued for pollution or
contamination caused injuries when the pollu-
tion or contamination results from an accident
except that no coverage will be provided under
certain operations for injuries arising out of dis-
charge or escape of oil into any body of water.°”

been obtained from the New Jersey Department of Insurance
and have beer attached to this brief. (See Appendix, Exhibit J). It
is believed that this Court can take judicial notice of these public
records. If not, there is ample evidence from which the court can
conclude that the language set forth above was submitted in
identical form to all state insurance commissioners, including
New Jersey’s. See e.g., New Castle County v. Hartford Accident and
Indem., 933 F.2d 1162, 1198 (setting forth language identical to
that quoted above and describing it as “the standard explana-
tory memorandum submitted to state insurance commis-
sioners”). This Court can take judicial notice that the same
language and explanation was filed with insurance commis-
sioners across the Country. See N.J. Evid. R. 9(1) and Evid. R. 12;
See also Joy Technologies, supra (setting forth the identical lan-
guage in the West Virginia filings).

37 Of significance herein, the West Virginia Supreme Court
recently applied the principles of judicial estoppel for Liberty
Mutual from taking positions on the “polluter’s exclusion” iden-
tical to the one’s that Liberty is taking in this matter:

Certainly, in this Court’s view, an essential part of the
public policy of the State of West Virginia is that the

59a

The first sentence of the IRB and MIRB submission to
the state insurance commissioners is false. That first sen-
tence reads:

law of the State should be administered 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 studies, unambiguous, official, affirmative
representations to the State, its subdivisions, or its regula-
tory bodies.

As will hereinafter be discussed, this Court
believes that Liberty Mutual Insurance Company, in
studied, affirmative and official communications with
a regulatory authority of the State of West Virginia,
prior to the institution of this action, took the position
that the exclusion in question in the present case
would have a meaning and effect different from that
attributed to it by the State of Pennsylvania. In view
of this, if this Court held that Pennsylvania law
applied to the questions in issue, it would allow Lib-
erty Mutual Insurance Company to take a position
[that the “pollution’s exclusion” barred coverage for
gradual pollution, even if the injury was unexpected
and unintended], and act in a manner, inconsistent
with Liberty Mutual’s studied, unambiguous, official and
affirmative representations. Such, in this Court’s view,
would be inconsistent with, and contrary to, the public
policy of this state.

Joy Technologies, supra, slip op. at 10 (emphasis added). Similarly,
Liberty Mutual and the other insurance companies that took
part in the filings submitted to New Jersey or West Virginia
should be estopped from taking a position here that is inconsi-
stent with these prior representations made to the commis-
sioners that the “exclusion was a mere clarification of existing
coverage. See N.M. v. J.G., 255 N.J. Super. 423, 605 A.2d 709 (App.
Div. 1992); Stretch v. Watson, 6 N.J. Super. 456, 69 A.2d 596 (Ch.
Div. 1949) (parties should not be allowed to play “fast and
loose” with the courts).

60a

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 defini-
tion of occurrence.

Clearly, as the drafter, G.L. Bean’s own statement’s, supra,
indicate, pollution coverage was provided for prior to 1970.

Even a pro-insurance industry article recognizes that the
“occurrence” policy covered gradual pollution losses:3*

With the lesson of accident-based coverage fresh in
their minds, [in 1966] the insurers used new lan-
guage to remove only the suddenness barrier and to
cover pollution liability that arose from gradual losses.
The standard policy made it clear that the loss had
to be unexpected and unintended from the
insured’s standpoint for coverage to apply.

Rosenkranz at 1247. (footnote omitted, emphasis added.)

+ * *

Respectfully submitted,

OF COUNSEL FRED G. STICKEL, III
SUCENE R ANDERSON STICKEL, NORMIG & SUL-

LIVAN
yon py Sy 2 gaan ATTORNEY FOR NEW

ANDERSON KILL OLICK JERSEY STATE LEAGUE
& OSHINSKY OF MUNICIPALITIES

/s/ Fred G. Stickell III
BALTES }- ROR FRED G. STICKEL, III
MICHAEL A. PANE

“ 38 Rosenkranz, The Pollution Exclusion Clause Through the
Locking Glass, 74 Geo. L.J. 1237 (1986).

me

61a

APPENDIX H

SUPREME COURT OF NEW JERSEY
DOCKET NO. 34,341

“
MORTON INTERNATIONAL,
INC.,
Plaintiff-Appellant, |
vs. |

GENERAL ACCIDENT
INSURANCE COMPANY
OF AMERICA, et al.,

Defendants-Respondents. .

- X

REPLY BRIEF OF DEFENDANT-RESPONDENTS/
CROSS-APPELLANTS INSURANCE COMPANY OF
NORTH AMERICA, AMERICAN HOME ASSURANCE
COMPANY, LIBERTY MUTUAL INSURANCE COM-
PANY, UNDERWRITERS AT LLOYD’S LONDON, AND
LONDON MARKET INSURANCE COMPANIES

* * +

1. The “Regulatory History” Documents Relied On By
Thiokol Support The Positions Taken By The Car-
riers

Thiokol relies on the regulatory filing history discus-
sions in New Castle County v. Hartford Accident & Indem-
nity Co., 933 F.2d 1162 (3d Cir. 1991) and Claussen v. Aetna
Casualty & Surety Co., 259 Ga. 333, 380 S.E.2d 686 (1989),

62a

to support its position that the pollution exclusion is
ambiguous. The documents relied on in these cases were
submitted by the Insurance Rating Board (“IRB”) in con-
nection with the 1970 filing of the pollution exclusion
with the various state insurance departments. The IRB
submissions contained an explanatory memorandum
which was filed in most states. The memorandum pro-
vides in relevant part:

Coverage for pollution or contamination is not pro-
vided 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 occur-
rence. The above exclusion clarifies the situation so
as to avoid any question of intent. Coverage is
continued for pollution or contamination caused
by injuries where the pollution or contamination
results from an accident... .

New Castle, 933 F.2d at 1198 (emphasis added).

The very first sentence of the explanation confirms
the insurers’ belief in 1970 that most incidents of pollu-
tion were not currently covered by the occurrence poli-
cies. It belies Thiokol’s claim that the carriers “intended
to revolutionize the coverage afforded pollution risks so
that the vast majority of pollution claims would for the
first time be uninsurable.” Pet. Br. at 1. The 1970 submis-
sions were made at a time when liability was imposed
only upon a finding of fault and only after a third party
had been injured as a result of that fault. Ten years later,
CERCLA and comparable state statutes imposing strict
liability brought about a flood of pollution claims which

63a

were unforeseen at the time of the filings. Any predic-
tions made in 1970 should be evaluated in light of what
was known at the time.

The second sentence of the explanation reinforces the
drafters’ understanding that the exclusion would result in
a change by doing away with the question of intent. The
initial focus of the coverage determination would now be
on a physical event, the discharge of contaminants,
instead of policyholder intent. If that discharge was not
sudden, the inquiry could be terminated without ventur-
ing into the more complex question of intent.

The final sentence confirms the drafters’ intent that
the exclusion applies to the classic temporal “accident”
which was understood to be a sudden event identifiable
in time, such as a “boom” incident. Indeed, the regulatory
history documents submitted to Judge Huot by Thiokol
indicate that the insurers used the term “accident” to
suggest a temporal element. Pa 1710. Thiokol’s historical
submissions state that in 1966 the IRB expanded the
definition of occurrence because of criticism that the use
of the term accident alone in the occurrence definition
“required suddenness (a boom) as to time and place.” Id.

The IRB documents submitted to the trial court by
Thiokol also demonstrate that the pollution exclusion
would effect a reduction in coverage. Indeed, the IRB
indicated that on an individual basis policyholders could

“buy-back” the coverage which the pollution exclusion
eliminated from the policy. Pa 1344, 1716, 1724.

64a

Broadwell and its progeny, including the recent West
Virginia decision, Joy Technologies,? suggest that the pro-
ponents of the pollution exclusion are estopped from
giving any real effect to the pollution exclusion because
of one construction of certain isolated statements in the
memorandum that was submitted in most jurisdictions.

* * *

9 Joy Technologies, Inc. v. Liberty Mutual Insurance Co., No.
20153 (W. Va. June 11, 1992), also failed to read carefully the
language of the filing documents it relied on in concluding that
the pollution exclusion was ambiguous. As in New Castle, the
court focused solely on the word “clarifies” in the explanatory
memorandum and ignored the remainder of the document
which stressed that intent would no longer be an issue. Nor is
there any indication that the court considered the large quantity
of materials in the West Virginia Insurance Commissioner’s file
which directly contradict any claim that the insurers repre-
sented that the exclusion would be meaningless and strongly
support the insurers’ interpretation of the purpose and effect of
the exclusion. See, e.g., North Pacific Ins. Co. v. United Chrome
Prods., Inc., No. CV 89-0777 (Or. App. Ct. Sept. 30, 1991) (Ra 2)
(IRB document submitted to West Virginia “clearly indicates”
intént to exclude pollution). Appellate courts which venture
into making determinations on the basis of extrinsic evidence
run grave risks of error and basic unfairness.

Dated: June 29, 1992

RONCA, MCDONALD &
HANLEY

Of Counsel:
MENDES & MOUNT

Attorneys for Defendants-
Respondents Underwriters
at Lloyd’s London,

and London Market
Insurance Companies

Of Counsel:
Robert J. Kovacs
John G. McAndrews

65a

Respectfully submitted,

MUDGE ROSE GUTHRIE
ALEXANDER & FERDON

By /s/ Cary Edwards
W. Cary Edwards

Attorneys for Defendant-
Respondent Insurance
Company of North
America

Of Counsel:
Paul R. Koepff
John L. Altieri, Jr.
Stephen V. Kovarik

66a

APPENDIX I

SUPREME COURT OF NEW JERSEY
DOCKET NO. 34,341

MORTON INTERNATIONAL,
INC.,

Plaintiff-Appellant,
v.

GENERAL ACCIDENT
INSURANCE COMPANY
OF AMERICA, et al.,

Defendants-Respondents.

BRIEF OF DEFENDANT-RESPONDENTS/CROSS-
APPELLANTS AMERICAN HOME ASSURANCE
COMPANY, UNDERWRITERS AT LLOYD’S LONDON,
AND LONDON MARKET INSURANCE COMPANIES
IN SUPPORT OF AMICUS AETNA’S MOTION TO
EXPAND THE RECORD BELOW

Because the pollution is clear and unambiguous, our
view is that extrinsic evidence is inadmissible to vary the
meaning of a contact. See e.g., Massari v. Accurate Bushing
Co., 81 N.J. 299, 315 (1951); Filmlife, Inc. v. Mal “Z” Ena,
Inc., 251 N.J.Super. 570, 573 (App.Div. 1991) (quoting 3
CORBIN ON CONTRACTS, 573 (1960)).

“ In this case, Thiokol and at least one amicus have
cited to extrinsic evidence. These references have taken
the evidence selectively and out of context. It is the

67a

undersigned insurers position that the Aetna amicus brief
and the appendices referenced thereto have given the
Court a fair and complete picture of the derivation of the
pollution exclusion. Should this Court or a lower court in
remand wish to consider the issue of extrinsic evidence,
the Aetna motion should be granted.

+ © *

Dated: July 30, 1992

Respectfully submitted,

By: /s/ John G. McAndrews
RONCA, MCDONALD GOLDEN, ROTHSCHILD,
& HANLEY SPAGNOLA & DiFAZIO

Of Counsel: Attorneys for Defendant-

MENDES & MOUNT Respondent American
Home Assurance

Attorneys for Company
ib Cit Caiitiait
espondents

Underwriters at Charles W. Miller, III

Lloyd’s London
and London Market
Insurance Companies

Of Counsel: Robert J. Kovacs
John G. McAndrews

68a

APPENDIX J

SUPREME COURT OF NEW JERSEY
DOCKET NO. 34,341

MORTON INTERNATIONAL,
INC.,

Plaintiff-Appellant,
Vs.

GENERAL ACCIDENT
INSURANCE COMPANY
OF AMERICA, et al.,

Defendants-Respondents.

INSURANCE COMPANY OF NORTH AMERICA’S
JOINDER IN THE BRIEF OF DEFENDANT-
RESPONDENTS/CROSS-APPELLANTS AMERICAN
HOME ASSURANCE COMPANY, UNDERWRITERS AT
LLOYD’S LONDON, AND LONDON MARKET
INSURANCE COMPANIES IN SUPPORT OF AMICUS
AETNA’S MOTION TO EXPAND THE RECORD BELOW

Defendant-Respondent/Cross-Appellant Insurance
Company of North America respectfully submits this
joinder in the Brief of Defendant-Respondents/Cross-
Appellants American Home Assurance Company,
Underwriter’s at Lloyd’s London, and London Market
Insurance Companies in Support of Amicus Aetna’s
Motion to Expand the Record Below, filed on July 30,
1992. For the reasons set forth therein, Insurance

69a

C

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1647%3A12. Public record. Not legal advice.