In re Wallace & Gale Co., 111504 FED4, 022389

Docket Nº:022389
Party Name:In re Wallace & Gale Co.
Case Date:November 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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In Re: THE WALLACE & GALE COMPANY Debtor

ROY E. JONES; ANDREW R. YOUNGBAR; LOUISE HOLCOMB, Personal Representative of the Estate of Cossie Holcomb; ROBERT M. BARBER, Personal Representative of the Estate of Milton Barber Intervenors/Plaintiffs - Appellants

versus

LIBERTY MUTUAL INSURANCE COMPANY; HARTFORD INSURANCE COMPANY; CONTINENTAL CASUALTY COMPANY; ADRIATIC INSURANCE COMPANY; ST. PAUL FIRE & MARINE INSURANCE COMPANY; GRANITE STATE INSURANCE COMPANY; NEW HAMPSHIRE INSURANCE COMPANY; TRAVELERS CASUALTY AND SURETY COMPANY Defendants - Appellees

and

THE WALLACE & GALE COMPANY; MAYOR OF BALTIMORE; CITY COUNCIL OF BALTIMORE CITY; AMERICAN EMPLOYERS INSURANCE COMPANY; INTERNATIONAL INSURANCE COMPANY; Defendants

THE AETNA CASUALTY AND SURETY COMPANY Intervenor/Defendant

PORTER HAYDEN COMPANY; OFFICIAL COMMITTEE OF UNSECURED, CREDITORS, of Porter-Hayden; OFFICIAL COMMITTEE OF UNSECURED CREDITORS, of ACandS, Incorporated; ACANDS, INCORPORATED; JT THORPE COMPANY; CELOTEX ASBESTOS SETTLEMENT TRUST; Amici Supporting Appellant

COMPLEX INSURANCE CLAIMS LITIGATION ASSOCIATION; THE AMERICAN INSURANCE ASSOCIATION; CERTAIN UNDERWRITERS AT LLOYD'S, LONDON Amici Supporting Appellee

In Re: The Wallace & Gale Company, Debtor.

Roy E. Jones; Andrew R. Youngbar; Louise Holcomb, Personal Representative of the Estate of Cossie Holcomb; Robert M. Barber, Personal Representative of the Estate of Milton Barber, Intervenors-Plaintiffs-Appellants,

v.

Liberty Mutual Insurance Company; Hartford Insurance Company; Continental Casualty Company; Adriatic Insurance Company; St. Paul Fire & Marine Insurance Company; Granite State Insurance Company; New Hampshire Insurance Company; Travelers Casualty and Surety Company, Defendants-Appellees,

and

The Wallace & Gale Company; Mayor of Baltimore; City Council of Baltimore City; American Employers Insurance Company; International Insurance Company, Defendants,

The Aetna Casualty and Surety Company, Intervenor-Defendant.

Porter Hayden Company; Official Committee of Unsecured Creditors of Porter Hayden; Official Committee of Unsecured Creditors of ACandS, Incorporated; ACandS, Incorporated; JT Thorpe Company; Celotex Asbestos Settlement Trust, Amici Supporting Appellant.

Complex Insurance Claims Litigation Association; The American Insurance Association; Certain Underwriters at Lloyd's, London, Amici Supporting Appellee.

In Re: The Wallace & Gale Company, Debtor.

Roy E. Jones; Andrew R. Youngbar; Louise Holcomb, Personal Representative of the Estate of Cossie Holcomb; Robert M. Barber, Personal Representative of the Estate of Milton Barber, Intervenors-Plaintiffs,

v.

Travelers Casualty and Surety Company, Defendant-Appellant,

v.

Liberty Mutual Insurance Company, Defendant-Appellee,

and

The Wallace & Gale Company; Mayor of Baltimore; City Council of Baltimore City; Hartford Insurance Company; Cna-continental casualty Company; Adriatic Insurance Company; St. Paul Fire & Marine Insurance Company; American Employers Insurance Company; International Insurance Company; Granite State Insurance Company; New Hampshire Insurance Company, Defendants,

The Aetna Casualty and Surety Company, Intervenor-Defendant.

Nos. 02-2389(L), 02-2389, 02-2427

United States Court of Appeals, Fourth Circuit

November 15, 2004

Argued: October 30, 2003 Decided: October 6, 2004

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-94-2327-PJM; BK-85-0092; AP-94-1784)

COUNSEL

ARGUED:

Mark Herbert Kolman, DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L.L.P., Washington, D.C., for Appellants.

Lee Hedgecock Ogburn, KRAMON & GRAHAM, P.A., Baltimore, Maryland; William Judkins Bowman, HOGAN & HARTSON, L.L.P., Washington, D.C.; Robert L. Hoegle, CARTER, LED YARD & MILBURN, L.L.P., Washington, D.C., for Appellees.

ON BRIEF:

Jerold Oshinsky, Katherine J. Henry, DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L.L.P., Washington, D.C.; James R. Matthews, KEATING, MUETHING & KLEKAMP, L.L.P., Cincinnati, Ohio, for Appellants.

Steven M. Klepper, KRAMON & GRAHAM, P.A., Baltimore, Maryland; Jonathan S. Franklin, HOGAN & HART-SON, L.L.P., Washington, D.C.; Harry Lee, STEPTOE & JOHNSON, L.L.P., Washington, D.C.; David M. Rice, Laurie J. Hepler, CARROLL, BURDICK & MCDONOUGH, L.L.P., San Francisco, California; Robert M. Wright, William P. Pearce, WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland; Mary S. Diemer, CARTER, LEDYARD & MILBURN, L.L.P., Washington, D.C., for Appellees.

Marc S. Mayerson, Robert E. Johnston, SPRIGGS & HOLLINGSWORTH, Washington, D.C., for Amicus Curiae Porter Hayden.

Philip E. Milch, CAMPBELL & LEVINE, L.L.C., Pittsburgh, Pennsylvania, for Amicus Curiae Creditors of Porter Hayden. Armand J. Volta, Jr., LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland, for Amicus Curiae Creditors of ACandS.

Mark A. Packman, Joel E. Greer, GILBERT, HEINTZ & RANDOLPH, L.L.P., Washington, D.C., for Amici Curiae ACandS, et al. Laura A. Foggan, John C. Yang, Amy K. Graham, WILEY, REIN & FIELDING, L.L.P., Washington, D.C., for Amici Curiae Insurance Litigation Association, et al. Thomas J. Quinn, Stephen T. Roberts, MENDES & MOUNT, L.L.P., New York, New York, for Amici Curiae Lloyd's, et al.

Before WIDENER and DUNCAN, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Widener wrote the opinion, in which Judge Duncan and Senior Judge Michael concurred.

O R D E R

Intervenors-Appellants have filed a petition for rehearing and rehearing en banc. Appellant Travelers Casualty and Surety Company has filed a motion to amend the opinion.

The appellants' petition for rehearing and rehearing en banc was submitted to this Court. As no member of this Court or the panel requested a poll on the petition for rehearing en banc, and As the panel considered the petition for rehearing and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and rehearing en banc is denied.

It is ORDERED that footnote 3 on page 25 of the printed slip opinion is amended to read as follows:

The intervenors have urged us to refer to the Maryland Court of Appeals the questions of Maryland law involved in this case, while Travelers has opposed such action. We decline so to do. Indeed, the arguments of each to the district court were the opposite, as Travelers proposed that the district court certify the "allocation" issue to the Maryland Court of Appeals, and the intervenors opposed certification at that time. (Intervenors' br. p.54, Travelers' br. p.29, JA p. 1446, 1451).

Entered at the direction of Judge Widener, with the concurrence of Judge Duncan and Judge Michael.

OPINION

WIDENER, Circuit Judge:

This appeal concerns insurers' liability for asbestos-related bodily injuries. The intervenors appeal from the district court's decision adopting what is called the pro-rata rule of Mayor & City Council of Baltimore v. Utica Mutual Insurance Co., 802 A.2d 1070 (Md. Ct. Spec. App. 2002), and holding that the intervenors' claims are subject to an aggregate limit by reason of the "completed operations" provisions of the insurance policies. We affirm.

I.

The intervenors in this case are four former employees or personal representatives of former employees of the Bethlehem Steel plant located in Baltimore, Maryland. The intervenors claim that they were injured by asbestos that was installed by Wallace & Gale Company. Wallace & Gale was an insulation contractor that installed asbestos-containing products for different businesses including Bethlehem Steel. In the early 1970's, Wallace & Gale halted its use of asbestos-containing products due to safety and health concerns. Wallace & Gale filed for bankruptcy in 1984, and numerous claimants, including the intervenors, have filed proofs of claim against Wallace & Gale for asbestos-related injuries.

During the time it installed asbestos-containing products, Wallace & Gale purchased comprehensive general liability insurance policies and excess liability insurance policies from the following insurers, Aetna Casualty & Surety Company, now known as Travelers Casualty & Surety Company (Travelers); Hartford Accident and Indemnity Company (Hartford); St. Paul Fire and Marine Insurance Company (St. Paul); Granite State Insurance Company (Granite); Continental Casualty Company (Continental); Riunione Adriatica Di Sicurta (Riunione); and New Hampshire Insurance Company (New Hampshire).1 (JA 1445, 1541-1547, 1549, 1560, 1577, 1592, 1607, 1622, 1637, 1652, 1682, 1717, 1750, 1787, 1841, 1878, 1894, 1921-1924, 191-1982, 2001-2002, 2007, 2033, 2095, 2111, 2145-2146, 2245-2547, 2549, 2574, 2606, 2619, 3325-3327) Under the plan adopted by the bankruptcy court, the proceeds from the insurance policies will be used to fund a trust to handle asbestos injury claims filed against Wallace & Gale. The amount that the insurers will be required to contribute to the trust depends on the interpretation of the insurance contracts and the outcome of this litigation.

II.

In 1994, Travelers filed a declaratory judgment action, by way of an adversary proceeding within the Chapter 11 Bankruptcy case of Wallace & Gale against Wallace & Gale, the Mayor and City Council of Baltimore, and Wallace & Gale's other insurers. Travelers sought a judicial determination of the applicability and extent of coverage of insurance policies issued by Wallace & Gale's insurers. Through this action, Travelers sought to determine the extent of its liability, and the liability of other Wallace & Gale insurers, in a lawsuit brought against...

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