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Truck Ins. Exch. v. Cement

Truck Ins. Exch. v. Cement

Court of Appeal of California, Second Appellate District, Division Four

January 7, 2022, Opinion Filed

B278091

Opinion

INTRODUCTION

This is the latest of several opinions issued by this court in litigation concerning comprehensive general liability (CGL) insurance [*3]  coverage for asbestos bodily injury claims (referred to by the parties as ABIC) against Kaiser Cement and Gypsum Corporation (Kaiser). The ABIC were brought mostly by laborers who became ill and/or died from exposure to asbestos-containing products manufactured by Kaiser over more than 30 years.

Truck Insurance Exchange (Truck), Kaiser's primary insurer, commenced this action in 2001, after making more than $50 million in indemnity payments to resolve ABIC against Kaiser. Truck sought declaratory relief that its primary coverage of ABIC had been exhausted and it had no further duty to defend or indemnify Kaiser. Truck also sought contribution from certain of Kaiser's excess insurers. Kaiser cross-claimed against Truck and Kaiser's excess insurers, seeking a declaration of coverage.

A. Earlier Opinions

In the first opinion, London Market Insurers v. Superior Court (2007) 146 Cal.App.4th 648 (LMI), a different panel of this court resolved what it described as a matter of first impression in California: the meaning of "occurrence" in CGL policies as it relates to per occurrence limits of liability and deductibles in the context of ABIC. (Id. at p. 651.) LMI held that for purposes of per [*4]  occurrence limits and deductibles, an "occurrence" under Truck's CGL policies is each claimant's "injurious exposure to [Kaiser's] asbestos products," not (as Truck had contended) Kaiser's manufacture and distribution of those products. (Id. at pp. 652, 672.)

On June 3, 2011, this court issued a second opinion: Kaiser Cement & Gypsum Corp. v. Insurance Co. of the State of Pennsylvania (2011) 196 Cal.App.4th 140. After granting review, the Supreme Court transferred the case back to this court with directions to vacate the decision and reconsider it in light of State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186 (Continental Insurance).

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2022 Cal. App. Unpub. LEXIS 116 *; 2022 WL 71771

TRUCK INSURANCE EXCHANGE, Plaintiff and Appellant, v. KAISER CEMENT et al., Defendants, Cross-complainants and Appellants; LONDON MARKET INSURERS, Defendant and Appellant. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Cross-Defendant and Appellant. GRANITE STATE INSURANCE COMPANY, et al., Defendants and Respondents.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Prior History:  [*1] APPEAL from a judgment of the Superior Court of California, No. BC249550, Kenneth R. Freeman, Judge.

Disposition: Affirmed in part and reversed in part.

CORE TERMS

deductible, insured, policies, exhaustion, occurrence, per occurrence, coverage, trial court, Phase, parties, primary policy, excess policy, triggered, asbestos, statute of limitations, limits, Convention, excess insurer, horizontal, aggregate limit, allocate, primary insurance, indemnity, policy period, policy limit, accrued, excess insurance, asserts, tolling, equitable