Fibreboard Corp. v. Hartford Acc. and Indem. Co.
| Decision Date | 04 May 1993 |
| Docket Number | No. A057152,A057152 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 15 Cal.App.4th 620 15 Cal.App.4th 620 FIBREBOARD CORPORATION, Plaintiff and Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Respondent. |
Robert M. Chilvers, Jayne Loughry, David E. Weiss, Brobeck, Phleger & Harrison, San Francisco, for plaintiff and appellant.
Hill Wynne Troop & Meisinger, Kirk A. Pasich, Wendy I. Kirchick, Linda D. Kornfeld, Los Angeles, for amicus curiae on behalf of plaintiff and appellant.
Kirlin, Campbell, Meadows & Keating, Stephen G. Flynn, San Francisco, Hogan & Hartson, William J. Bowman, Patrick F. Hofer, Washington, DC, for defendant and respondent.
Elliot L. Bien, Bien, Summers & Dale, San Francisco, Thomas W. Brunner, Laura A. Foggan, Carol A. Barthel, Jo Anne B. Hennigan, Washington, DC, for amicus curiae on behalf of defendant and respondent.
This appeal involves matters of insurance coverage for numerous asbestos-in-building claims asserted against appellant Fibreboard Corporation (Fibreboard). We are asked to decide three issues: (1) whether causes of action based on collective liability, in which a given defendant need not have supplied the harmful product, come within the policies' "products hazard" coverage; (2) whether such causes fall within the general operations coverage; and (3) whether the personal injury coverage applies to certain other claims alleging interference with property rights and related matters.
We conclude that all the underlying claims, if covered at all, are embraced within the "products hazard" coverage, which has either been exhausted or rendered inapplicable by means of an asbestos exclusion. Further, the general operations and personal injury provisions do not apply to the underlying claims. Accordingly, we affirm the judgment in its entirety.
From 1928 until 1972 Fibreboard manufactured and sold products containing the mineral asbestos. During the past decade more than 150 claims have been asserted against Fibreboard and other manufacturers of asbestos products by school districts, municipalities, other government entities and private building owners, alleging damages and injury because of the presence of defendants' asbestos products in their buildings. Those claims now number 42.
Typically, plaintiffs advance theories of negligence, strict liability, nuisance, breach of warranties, misrepresentation, enterprise liability, market share liability, concert of action and civil conspiracy. Typically, they seek damages related to the costs of inspection, containment, removal, replacement, relocation and other corrective action regarding asbestos products in these buildings, as well as punitive damages.
From 1973 through 1986 Hartford was the primary general liability insurer for Louisiana-Pacific Corporation, Fibreboard's parent. Louisiana-Pacific acquired Fibreboard in 1978 and added the subsidiary to its then-current Hartford policy by amendatory endorsement effective October 1, 1978.
Hartford and Fibreboard first became embroiled in litigation over insurance coverage for asbestos-related bodily injury claims shortly after Fibreboard became an insured under Louisiana-Pacific's policies. In 1985 the parties, together with other asbestos producers and insurers entered into a comprehensive settlement agreement (the Wellington Agreement) designed to resolve all issues pertaining to insurance coverage for these suits.
Later, in 1985, after the Wellington Agreement had been signed, Fibreboard filed this declaratory relief action against numerous insurance companies, including Hartford, to resolve coverage issues pertinent to the asbestos-in-buildings claims. Fibreboard, through its attorney, represented that at that time the company was not seeking contribution from Hartford and had "no intention" of serving Hartford with the complaint.
Then, in 1988, pursuant to the "Wellington Agreement," Hartford paid $2 million on its 1978-1979 and 1979-1980 policies for judgments or settlements of asbestos bodily injury claims. At that time Hartford gave notice to Fibreboard that these payments exhausted the combined "products hazard" aggregate limits for the two policies in question.
Against this background, Hartford requested that Fibreboard dismiss this case and then moved for summary judgment after receiving no response. Based on amendments to Fibreboard's complaint, alleging facts from which it asserted new theories of coverage, the trial court denied Hartford's motion. After conducting some discovery, Hartford again moved for summary judgment, this time successfully.
Fibreboard is demanding coverage under Hartford policies in effect from 1978 through 1985. Pursuant to these policies, Hartford undertook to pay on behalf of Fibreboard "all sums which the insured shall become legally obligated to pay as damages because of: [p] (1) bodily injury or property damage to which the insurance applies caused by an occurrence or [p] (2) personal injury to which this insurance applies...." The annual $1 million aggregate limits of liability for bodily injury and property damage under these policies apply separately to each of several situations, including the following: "(1) all property damage arising out of premises or operations ... [and] (3) all bodily injury or property damage included within the products hazard and all property damage or bodily injury included within the completed operations hazard."
The "products hazard" classification is defined as including "bodily injury and property damage arising out of the named insured's products 1 or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others."
Beginning with policies effective April 1, 1980, and for all policy years thereafter, each policy contained a special asbestos exclusion which provided that the insurance does not apply "to bodily injury or property damage included within the completed operations or the products hazard for claims arising out of products containing asbestos manufactured by Fibreboard Corporation commonly referred to as 'asbestos claims.' "
The policies in question also provided a separate aggregate limit of liability for "personal injury" claims. The policies define "personal injury" as "injury, other than advertising injury, arising out of one or more of the following offenses committed during the policy period in the conduct of the insured's business: [p] 1. the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of any individual's right of privacy; [p] 2. false arrest, detention or imprisonment, or malicious prosecution; [p] 3. wrongful entry or eviction or other invasion of an individual's right of privacy; or [p] 4. discrimination or humiliation...."
There are no disputed facts. The gist of Fibreboard's appeal is that the trial court misinterpreted the insurance policies, which led to erroneous conclusions concerning coverage. Our job is to affirm the summary judgment if, as is the case, there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) We use our independent judgment in deciding purely legal questions such as the interpretation of written instruments.
Fibreboard complains that the trial court had it wrong when it ruled that all the underlying asbestos-in-buildings claims were products claims which, if covered at all, would come within the "products hazard" limits of liability. The court found that those limits were exhausted under the 1978 and 1979 policies and that the asbestos products exclusion present in the later policies applied to the remaining claims.
It is Fibreboard's contention that many of the underlying claims are not subject to the "products hazard" limitation because they do not allege damages "arising out of" Fibreboard's products. They assert that claims based on theories such as concert of action, failure to disclose hazardous nature of products, civil conspiracy, failure to develop asbestos-free products and market share liability have "nothing to do with any product manufactured, sold, handled or distributed by Fibreboard" and, thus, are not subject to the limits of liability for "products hazard". This being the case, Fibreboard insists there is coverage under the "premises-operations" clause as well as under the personal injury provisions. After examining the insuring provisions for property damage/bodily injury and personal injury, we conclude the trial court correctly ruled on Hartford's summary judgment motion.
The Hartford policies provide property damage and/or bodily injury coverage for distinct hazards related to Fibreboard's business as a manufacturer. We are concerned here with the separate coverage which the premiums afford for "premises-operations" and for "products hazard/completed operations." Under the policies, the annual $1 million aggregate cap on liability applies separately to each category.
As explained by a noted commentator, a manufacturer or person who performs a service can incur liability in a number of ways, including ...
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