Judge applies ‘continuous trigger’ theory to asbestos case

A commercial general liability insurer had to pay only that portion of an asbestos-exposure judgment that represented the years it covered the underlying tort defendant, a Superior Court judge has determined.

Plaintiff Amy Ross’ husband, Tim, who worked with material containing asbestos while insulating commercial boilers during the 1960s and 1970s, died of mesothelioma in 2013, two years after first experiencing symptoms.

In 2018, Ross secured a $9.9 million judgment against New England Insulation Co., which sold the insulation Tim had been exposed to at work.

Defendant Liberty Mutual Insurance Co., which issued New England Insulation a series of CGL policies between 1973 and 1983, tendered a check for $2.2 million.

Liberty Mutual arrived at the figure by assuming a “continuous triggering” of all New England Insulation policies from Tim’s initial exposure until his death and then applying the pro-rata allocation method adopted by the Supreme Judicial Court in its 2009 Boston Gas Co. v. Century Indem. Co. decision.

In Boston Gas, the SJC held that coverage for ongoing contamination caused by the plaintiff’s operation of a plant should be prorated using the “time-on-the-risk” allocation method between all insurers that covered Boston Gas during its years operating the facility.

In response to a reach-and-apply/declaratory action filed by Ross, Liberty Mutual argued that over the course of Tim’s initial exposure to asbestos in 1965 until his death in 2013, his bodily injury was continuous throughout. Accordingly, Liberty Mutual argued, its “continuous trigger” theory was the appropriate approach for claims involving asbestos-related disease.

Judge Hélène Kazanjian agreed.

“Examining the record on harm here, it is undisputed that the asbestos fibers the Decedent first inhaled in 1965, along with his further exposure into the 1970s, caused his body injury at the cellular level continuously until his mesothelioma manifested itself in 2011 or 2012,” Kazanjian wrote, granting Liberty Mutual’s motion for summary judgment. “Because ‘bodily injury’ to the Decedent occurred continuously from first exposure to his death, all of NEIC’s commercial general liability policies during that time were triggered.”

The 12-page decision is Ross v. Liberty Mutual Insurance Co., et al., Lawyers Weekly No. 09-095-25.

Get-out-of-jail free card?

Plaintiff’s counsel Andrew S. Wainwright of Boston said his client has filed a notice of appeal.

“This is a trial court summary judgment decision, so it’s some indicia of what this court would rule but not necessarily what higher courts would rule,” he said, adding that there was a Maryland decision in a plaintiff’s favor that applied similar policy language under nearly identical circumstances.

“The court obviously decided it wasn’t bound by the Maryland decision. We think the reasoning of the Maryland decision was sound and should be followed,” Wainwright said.

Nicholas C. Cramb of Boston, who represented Liberty Mutual, declined to comment.

But Kathleen O. Wyatt of Boston, who defends asbestos and toxic tort cases, said the adoption of the continuous trigger theory in the context of certain long-tail claims could be favorable to an insured, since it potentially expands coverage years.

However, she said, in the context of asbestos claims in particular, in which carriers have been employing asbestos exclusions since the mid-1980s, applying the continuous trigger theory to such long-latency claims could substantially limit available coverage to defendants.

“The Ross case should remind all counsel to assess availability of insurance on a case-by-case basis and consider the resulting impact on whether a judgment would be collectible,” Wyatt said.

Boston attorney Michael C. Shepard, who represents plaintiffs, said Boston Gas is unfair for asbestos victims and victims of other long-tail diseases.

For example, Shepard described a scenario in which a victim’s exposure to asbestos began in 1960 and the first symptoms of mesothelioma occurred in 2020. That would amount to 60 years between the first exposure and the onset.

If the defendant had insurance policies for 10 of those years, under Boston Gas the insurer would cover a sixth of the damages, with the other five-sixths paid for by the company, Shepard said.

But it is likely that the company, if it even still exists, would have been uninsured for long periods, had policies with asbestos exclusions for long periods, or would lack the resources to pay, he said.

“The plaintiff gets a fraction of their damages paid for. It essentially gives insurers a do-over and a get-out-of-jail-free card for policies that were bought and paid for to cover injuries like this,” Shepard said. “They’re getting a discount for the fact that the disease took a long time to develop. And the longer it takes for the disease to develop, the bigger the discount they get.”

Shepard said the SJC hopefully would see this application of Boston Gas in context and clarify its earlier decision in a way that does not place such an unreasonable burden on victims to the benefit of insurers.

However, Richard L. Neumeier of Leominster, who authored an amicus brief in Boston Gas, said the decision simply applies existing law.

“I don’t know the basis for suggesting what the error is by the Superior Court in this case but I’d be interested in reading the argument,” he said.

Long-tail case

Starting as a 12-year-old in 1965 until about 1975 to 1977, Tim Ross insulated commercial boilers with a material, typically Kaylo brand insulation, that contained asbestos.

Tim had significant occupational exposure to asbestos fibers from cutting and applying Kaylo, which his employer bought from New England Insulation.

After 1972, Kaylo was no longer made with asbestos. Still, Tim allegedly would have been exposed to asbestos after that time through previously installed products he encountered on the job.

Tim had no symptoms related to his asbestos exposure until 2011 or 2012. He died of mesothelioma in August 2013.

During his widow’s subsequent wrongful death trial, one of her experts opined that while it was impossible to determine which molecular and cellular events caused the cell mutation that became Tim’s mesothelioma, the “start of the clock” occurred likely decades before his diagnosis.

Another expert opined that “many disease mechanisms” were initiated at the time of exposure and that resultant chronic inflammation during the disease’s long latency phase created a “microenvironment” favorable to mesothelioma development.

Additional experts testified similarly.