In re Viking Pump, Inc.

• Decision Date: 03 May 2016
• Citation: 52 N.E.3d 1144,27 N.Y.3d 244,33 N.Y.S.3d 118,2016 N.Y. Slip Op. 03413
• Parties: In the Matter of VIKING PUMP, INC., et al., Insurance Appeals. Viking Pump, Inc., et al., Appellants, TIG Insurance Company et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 244
52 N.E.3d 1144
33 N.Y.S.3d 118
2016 N.Y. Slip Op. 03413

In the Matter of VIKING PUMP, INC., et al., Insurance Appeals.

Viking Pump, Inc., et al., Appellants,

TIG Insurance Company et al., Respondents.

Court of Appeals of New York.

May 3, 2016.

33 N.Y.S.3d 119

Kirkland & Ellis LLP, Chicago, Illinois (Michael P. Foradas, of the Illinois bar, admitted pro hac vice, Lisa G. Esayian of the Illinois bar, admitted pro hac vice, and William T. Pruitt of the Illinois bar, admitted pro hac vice, of counsel), and Kirkland & Ellis LLP, New York City (Peter A. Bellacosa of counsel), for Viking Pump, Inc., appellant.

Kasowitz Benson Torres & Friedman LLP, New York City (Robin L. Cohen, Elizabeth A. Sherwin and Keith McKenna of counsel), for Warren Pumps LLC, appellant.

Quinn Emanuel Urquhart & Sullivan, LLP, New York City (Kathleen M. Sullivan of counsel), Simpson Thacher & Bartlett LLP, New York City (Mary Kay Vyskocil, Summer Craig and Alexander Li of counsel), O'Melveny & Myers LLP, Washington, D.C. (Jonathan D. Hacker, of the District of Columbia bar, admitted pro hac vice, of counsel), O'Melveny & Myers LLP, New York City (Tancred Schiavoni, Gary Svirsky, Anton Metlitsky and Brad M. Elias of counsel), Hinkhouse Williams Walsh LLP, Chicago, Illinois (Laura S. McKay, of the Illinois bar, admitted pro hac vice, of counsel), Day Pitney LLP, Hartford, Connecticut (Kathleen D. Monnes, of the Connecticut bar, admitted pro hac vice, John K. Scully, of the Connecticut bar, admitted pro hac vice and John W. Cerreta of counsel), Clausen Miller P.C., Chicago, Illinois (Mark D. Paulson, of the Illinois bar, admitted pro hac vice, Amy R. Paulus, of the Illinois bar, admitted pro hac vice and Don R. Sampen, of the Illinois bar, admitted pro hac vice, of counsel), Zelle Hofmann Voelbel & Mason LLP, Framingham, Massachusetts

33 N.Y.S.3d 120

(Kristin Suga Heres, of the Massachusetts bar, admitted pro hac vice, of counsel), and Carroll, McNulty & Kull LLC, Basking Ridge, New Jersey (Heather E. Simpson and Christopher R. Carroll of counsel), for respondents.

Vedder Price P.C., New York City (John H. Eickemeyer and Daniel C. Green of counsel), and Wiley Rein LLP, Washington, D.C. (Laura A. Foggan and Nicole Audet Richardson of counsel), for Complex Insurance Claims Litigation and another, amici curiae.

Lowenstein Sandler LLP, New York City (David L. Elkind and Eric Jesse of counsel), for New York State Electric & Gas Corporation, amicus curiae.

Anderson Kill P.C., New York City (Robert M. Horkovich and Edward J. Stein of counsel), and Amy Bach, United Policyholders, San Francisco, California, for United Policyholders and others, amici curiae.

Jenner & Block LLP, Chicago, Illinois (Craig C. Martin, of the Illinois bar, admitted pro hac vice, and Peter J. Brennan of counsel), for Olin Corporation, amicus curiae.

Morgan, Lewis & Bockius LLP, Washington, D.C. (Randall M. Levine, Gerald P. Konkel, Stephanie Schuster and Christopher M. Popecki of counsel) and Morgan, Lewis & Bockius LLP, Los Angeles, California (David S. Cox of counsel), for ITT Corporation, amicus curiae.

27 N.Y.3d 250

OPINION OF THE COURT

STEIN, J.

52 N.E.3d 1146

In this complex insurance dispute, we have accepted two certified questions from the Delaware Supreme Court asking us to determine (1) whether “all sums” or “pro rata” allocation applies where the excess insurance policies at issue either follow form to a non-cumulation provision or contain a non-cumulation and prior insurance provision, and (2) whether, in light of our answer to the allocation question, horizontal or vertical exhaustion is required before certain upper level excess policies attach. We reaffirm that, under New York law, the contract language of the applicable insurance policies controls each of these questions, and we answer the certified questions in accordance with the opinion herein, concluding that all sums allocation and vertical exhaustion apply based on the language in the policies before us.

27 N.Y.3d 251

I.

The facts and procedural history of the underlying litigation are explained in more detail in decisions of the Delaware courts (see In re Viking Pump, Inc., ––– A.3d ––––, 2015 WL 3618924 [June 10, 2015] ; Viking Pump, Inc. v. Century Indem. Co., 2014 WL 1305003, 2014 Del.Super. LEXIS 707 [Feb. 28, 2014, C.A. No. 10C–06–141 FSS CCLD]; Viking Pump, Inc. v. Century Indem. Co., 2013 WL 7098824, 2013 Del.Super. LEXIS 615 [Oct. 31, 2013, C.A. No. 10C–06–141 FSS CCLD]; Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76 [Del.Ch.2009] ). As relevant here, Viking Pump, Inc., and Warren Pumps, LLC, acquired pump manufacturing businesses from Houdaille Industries, Inc. in the 1980s. Those acquisitions later subjected Viking and Warren to significant potential liability in connection with asbestos exposure claims. Houdaille had extensive multilayer insurance coverage spanning from 1972 to 1985 that included coverage for such claims. More specifically, Liberty Mutual Insurance Company provided Houdaille with primary insurance (totaling approximately $17.5 million) and umbrella excess coverage (totaling approximately $42 million) through successive annual policies. Beyond that, Houdaille obtained additional

52 N.E.3d 1147

33 N.Y.S.3d 121

layers of excess insurance through annual policies issued by various excess insurers (totaling over $400 million in coverage), including a number of policies issued by defendants, designated herein as “the Excess Insurers.”

Viking and Warren sought coverage under the Liberty Mutual policies, and the Delaware Court of Chancery determined that both companies were entitled to exercise rights as insureds under those policies (see generally Viking Pump, Inc. v. Liberty Mut. Ins. Co., 2007 WL 1207107, 2007 Del.Ch. LEXIS 43 [Apr. 2, 2007, C.A. No. 1465–VCS] ). As the Liberty Mutual coverage neared exhaustion, litigation arose regarding whether Viking and Warren were entitled to coverage under the additional excess policies issued to Houdaille by the Excess Insurers and, if so, how indemnity should be allocated across the triggered policy periods.

Central to the underlying litigation, the Liberty Mutual umbrella policies provide that the insurer

“will pay on behalf of the insured all sums in excess of the retained limit which the insured shall become

27 N.Y.3d 252

legally obligated to pay, or with the consent of the [insurer], agrees to pay, as damages, direct or consequential, because of:

“(a) personal injury ...

“with respect to which this policy applies and caused by an occurrence” (emphasis added).

“Occurrence” is defined, in relevant part, as “injurious exposure to conditions, which results in personal injury” which, in turn, is defined as “personal injury or bodily injury which occurs during the policy period ” (emphasis added). The policies also state that, “[f]or the purpose of determining the limits of the [insured's] liability: (1) all personal injury ... arising out of continuous or repeated exposure to substantially the same general conditions ... shall be considered as the result of one and the same occurrence.” The excess policies issued by the Excess Insurers either follow form to (i.e., incorporate) these provisions, or provide for substantively identical coverage.

The majority of the excess policies at issue also follow form to a “non-cumulation” of liability or “anti-stacking” provision in the Liberty Mutual umbrella policies, which provides that

“[i]f the same occurrence gives rise to personal injury, property damage or advertising injury or damage which occurs partly before and partly within any annual period of this policy, the each occurrence limit and the applicable aggregate limit or limits of this policy shall be reduced by the amount of each payment made by [Liberty Mutual] with respect to such occurrence, either under a previous policy or policies of which this is a replacement, or under this policy with respect to previous annual periods thereof.”

Those excess policies that do not follow form to the Liberty Mutual non-cumulation provision contain a similar two-part “Prior Insurance and Non [-]Cumulation of Liability” provision, sometimes referred to as “Condition C,” as follows:

“It is agreed that if any loss covered hereunder is also covered in whole or in part under any other excess Policy issued to the Insured prior to the inception date hereof[,] the limit of liability hereon ... shall be reduced by any amounts due to the Insured on account of such loss under such prior insurance.

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“Subject to the foregoing paragraph and to all the other terms and conditions of this Policy in the event that personal injury or property damage arising out of an occurrence covered hereunder is continuing

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