Norfolk & Western Ry. Co. v. Accident & Cas. Ins. Co. of Winterthur

• Decision Date: 07 December 1994
• Docket Number: No. 92-2031,92-2031
• Citation: 41 F.3d 928
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NORFOLK & WESTERN RAILWAY COMPANY, Plaintiff-Appellant, v. ACCIDENT & CASUALTY INSURANCE COMPANY OF WINTERTHUR; Insurance Company of Florida; Southern American Insurance Company; Northwestern National Insurance Company of Milwaukee; Bellefonte Insurance Company; California Union Insurance Company; The Insurance Company of North America; Employers Insurance of Wausau; American Reinsurance Company; Yosemite Insurance Company; General Reinsurance Corporation; United National Insurance Company; Protective National Insurance Company; Central National Insurance Company of Omaha; American Centennial Insurance Company; First State Insurance Company; Highlands Insurance Company; Royal Indemnity Company; Southeastern Fidelity Insurance Company; Argonaut Insurance Company, Inc.; Mead Reinsurance; Fuji Fire & Marine Insurance Company; The American Insurance Company; The Fireman's Fund Insurance Company; National Surety Corporation; The Federal Insurance Company; Allstate Insurance Company; Northbrook Excess & Surplus Insurance Company; Employer's Mutual Casualty Company; Employer's Surplus Lines Insurance Company; Harbor Insurance; Casualty Insurance; The Home Insurance Company; Transamerica Premier Insurance Company; International Surplus Lines Insurance Company; Stonewall Insurance Company, Defendants-Appellees. Illinois Central Railroad Company; Southern Pacific Transportation Company; CSX Transportation, Incorporated; Burlington Northern Railroad Company; American Home Assurance Company; Audubon Indemnity Company; Birmingham Fire Insurance Company of Pennsylvania; Granite State Insurance Company; Landmark Insurance Company; Lexington Insurance Company; National Union Fire Insurance Company of Pittsburgh, Pennsylvania; New Hampshire Insurance Company; The Insurance Company of the State of Pennsylvania; Fenn and London Market Companies, Amici Curiae.

Page 928

41 F.3d 928

NORFOLK & WESTERN RAILWAY COMPANY, Plaintiff-Appellant, v. ACCIDENT & CASUALTY INSURANCE COMPANY OF WINTERTHUR Insurance Company of Florida; Southern American Insurance Company; Northwestern National Insurance Company of Milwaukee; Bellefonte Insurance Company; California Union Insurance Company; The Insurance Company of North America Employers Insurance of Wausau; American Reinsurance Company; Yosemite Insurance Company; General Reinsurance Corporation; United National Insurance Company; Protective National Insurance Company; Central National Insurance Company of Omaha; American Centennial Insurance Company First State Insurance Company; Highlands Insurance Company Royal Indemnity Company; Southeastern Fidelity Insurance Company; Argonaut Insurance Company, Inc.; Mead Reinsurance; Fuji Fire & Marine Insurance Company; The American Insurance Company; The Fireman's Fund Insurance Company; National Surety Corporation; The Federal Insurance Company; Allstate Insurance Company; Northbrook Excess & Surplus Insurance Company; Employer's Mutual Casualty Company; Employer's Surplus Lines Insurance Company; Harbor Insurance; Casualty Insurance; The Home Insurance Company; Transamerica Premier Insurance Company; International Surplus Lines Insurance Company; Stonewall Insurance Company, Defendants-Appellees. Illinois Central Railroad Company; Southern Pacific Transportation Company; CSX Transportation, Incorporated; Burlington Northern Railroad Company; American Home Assurance Company; Audubon Indemnity Company; Birmingham Fire Insurance Company of Pennsylvania; Granite State Insurance Company; Landmark Insurance Company; Lexington Insurance Company; National Union Fire Insurance Company of Pittsburgh, Pennsylvania; New Hampshire Insurance Company; The Insurance Company of the State of Pennsylvania; Fenn and London Market Companies, Amici Curiae.

No. 92-2031.

United States Court of Appeals, Fourth Circuit.

Argued March 31, 1993.

Decided Dec. 7, 1994.

ARGUED: William Fain Rutherford, Jr., Woods, Rogers & Hazlegrove, Roanoke, VA, for appellant. Stuart Henry Newberger, Crowell & Moring, Washington, DC, for appellees. ON BRIEF: Frank K. Friedman, Paul C. Kuhnel, Woods, Rogers & Hazlegrove, Roanoke, VA; Stephen A. Trimble, Patrick Kavanaugh, Hamilton & Hamilton, Washington, DC, for appellant. Andrew H. Marks, Mark A. Behrens, Crowell & Moring, Washington, DC, for appellees Ins. Co. of North America and California Union Ins. Co.; Robert E. Heggestad, Casey, Scott, Canfield & Heggestad, P.C., Washington, DC; Stephen A. Cozen, Thomas G. Wilkinson, Jr., Cozen & O'Connor, Philadelphia, PA, for appellee Harbor Ins. Co.; James W. Greene, Bromley, Greene & Walsh, Washington, DC; Robert J. Bates, Jr., Maria G. Enriquez, Pope & John, Ltd., Chicago, IL, for appellee American Re-Insurance Co.; Joseph L.S. St. Amant, Kathleen T. Sooy, Elizabeth E.S. Skilling, McGuire, Woods, Battle & Boothe, Richmond, VA, for appellees Northwestern Nat. Ins. Co., Bellefonte Ins. Co., and Insurance Co. of Florida; Michael D. Gallagher, Lisa B. Zucker, German, Gallagher & Murtagh, Philadelphia, PA; David P. Joyce, Stone, Worthy, Reynolds & Joyce, Martinsville, VA, for appellee Stonewall Ins. Co.; S.D. Roberts Moore, Phillip V. Anderson, Walter H. Peake, III, Melissa W. Robinson, Gentry, Locke, Rakes & Moore, Roanoke, VA, for appellees American Centennial Ins. Co., Argonaut Ins. Co., First State, Highlands Ins. Co., Royal Ins. Co., and Southeastern Fidelity Ins. Co.; Philip J. McGuire, Timothy M. Nolan, Gleason, McGuire & Shreffler, Chicago, IL; M. Lanier Woodrum, Fox, Wooten & Hart, Roanoke, VA, for appellees Allstate Ins. Co.; Steven K. Davidson, Steven J. Barber, Steptoe & Johnson, Washington, DC, for appellee Home Ins. Co.; Richard H. Gimer, Richard A. Ifft, Stephen L. Humphrey, Hopkins & Sutter, Washington, DC, for appellee Employers' Surplus Lines Ins. Co.; William A. Brasher, The Law Offices of William A. Brasher, St.Louis, MO, for amicus curiae Burlington Northern R.R. Co.; Weston A. Marsh, Freeborn & Peter, Chicago, IL, for amicus curiae Illinois Central R.R. Co.; David W. Steuber, Tyrone R. Childress, Hill, Wynne, Troop & Meisinger, Los Angeles, CA, for amicus curiae Southern Pacific Transp. Co.; Jerold Oshinsky, Anderson, Kill, Olick & Oshinsky, Washington, DC, for amicus curiae CSX Transp. Inc.; M. Elizabeth Medaglia, Richard S. Kuhl, Jackson & Campbell, P.C., Washington, DC, for amici curiae American Home Assur. Co., et al.; George Marshall Moriarty, Kenneth W. Erickson, Peter M. Brody, Matthew M. Burke, Ropes & Gray, Boston, MA, for amicus curiae Fenn & London Market Cos.

Before WIDENER and NIEMEYER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Affirmed in part, appeal dismissed in part, and remanded by published opinion. Judge WIDENER wrote the opinion, in which Judge NIEMEYER and Senior Judge CHAPMAN joined.

OPINION

WIDENER, Circuit Judge:

This dispute arises out of several excess liability insurance policies purchased by Norfolk and Western Railway and is before us on an interlocutory appeal from the district court's order denying N & W's motion for partial summary judgment and making two declarations relevant to the insurance policies. We affirm in part and dismiss the appeal in part as having been improvidently granted.

I.

The Norfolk and Western Railway Company (N & W) has been in operation for more than eighty years. N & W has operated both freight and passenger trains. A number of N & W's present and former employees brought FELA ¹ damage claims against N & W for hearing loss which they claimed was caused by N & W's negligence. More specifically, they alleged that their hearing loss was a result of N & W's negligent operation of its railroad because of an unreasonable level of noise, its failure to abate the noise, failure to take steps to protect its employees from the noise, and failure to warn the employees about the noise.

N & W purchased numerous policies of insurance that covered the period from July 11, 1960 to July 11, 1986. ² Anticipating that a large number of noise-induced hearing loss claims will be filed against it in the future and seeking reimbursement for past claims paid, N & W filed a declaratory judgment action against several insurance company defendants. After extensive discovery, N & W filed a motion for partial summary judgment, which asked the district court to declare that noise-induced hearing loss claims are "bodily injuries" that arose out of a "single occurrence" within the terms of the policies. The defendants opposed the motion, and certain of the defendants filed a cross-motion for summary judgment. They sought a declaration that noise-induced hearing loss is an "occupational disease." ³ The district court declared that noise-induced hearing loss is an occupational disease and that a limitation of liability provision known as Paragraph 6 denies coverage for any claim in which the employee failed to cease work during the policy period. 796 F.Supp. 929. The district court also denied N & W's motion for partial summary judgment to the extent it sought a declaration that the employees' claims arose out of a single occurrence. N & W petitioned for permission to take an interlocutory appeal, which we granted. ⁴

There are three issues before us: (1) whether noise-induced hearing loss is an occupational disease within the meaning of the policies; (2) whether the Paragraph 6 limitation of liability provision correctly denies coverage for claims from employees who did not cease work because of their occupational disease; and (3) whether N & W's negligence causing noise-induced hearing loss is a single "occurrence" out of which the employees' claims arose within the meaning of the policies.

II.

We first turn to the issue of whether noise-induced hearing loss is an "occupational disease," as the insurance companies contend. The district court declared that noise-induced hearing loss is an "occupational disease". We agree with the district court. We decided that very point in a Jones Act case under FELA law in Barger v. Mayor & City Council of Baltimore, 616 F.2d 730, 732 n. 1 (4th Cir.) (recognizing hearing loss from on-the-job noise as an occupational disease), cert. denied, 449 U.S. 834, 101 S.Ct. 105, 66 L.Ed.2d 39 (1980). Present Virginia law is to the same effect. See Childress v. Beatrice Pocahontas Co., 6 Va.App. 88, 366 S.E.2d 722 (1988); Island Creek Coal Company v. Breeding, 6 Va.App. 1, 365 S.E.2d 782 (1988). We adhere to our decision in Barger and affirm the district court on that point.

III.

We next turn to the issue of whether the district court correctly declared that Paragraph 6, ⁵ denies coverage for claims for an occupational disease in which the employees did not cease work. Paragraph 6 reads:

This policy shall only indemnify the Assured against their liability for occupational disease in cases where the employee's (employees') cessation from work, as a result thereof, first occurs during the period of insurance covered by this policy.

The district court decided that Paragraph 6 was not ambiguous and that under its plain meaning, there was no coverage for liability of N & W for an occupational disease in which the employee did not cease working. It correctly relied upon Carter v. Carter, 202 Va. 892, 121 S.E.2d 482, 485 (1961), for the proposition that where the meaning of language in an insurance contract is clear, it needs no interpretation. We thus affirm the district court's decision as it relates to Policy No. 509/68 D.D.1040.

It should be remembered that the district court's opinion recognized that all of the provisions in all of the policies at issue in this case are not the same, and it stated in its opinion that its decision only determined the rights of insurers whose policies contained "provisions similar in all material respects to the quoted language [used in its opinion]." We are provided in the appendix with five of the policies,...