Insurance Law

Judge Finds Injury Occurs as Soon as Asbestos Is Inhaled

, The Legal Intelligencer

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Industrial plant at night

An Allegheny County trial judge has ruled in a case of first impression that, for insurance coverage purposes, an injury occurs on the date of a plaintiff's first exposure to asbestos, despite recent scientific evidence suggesting diseases almost never commence upon the initial inhalation of asbestos fibers.

In North River Insurance v. Mine Safety Appliances, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. granted defendant Mine Safety Appliances' motion for summary judgment, finding that plaintiff North River Insurance is obligated to cover MSA under any policies in effect during the period extending from the date of a claimant's first contact with asbestos to the date a claimant's mesothelioma or asbestos-related cancer first manifested.

Wettick sided with the Pennsylvania Supreme Court's 1993 decision in J.H. France Refractories v. Allstate Insurance, which instituted a "multitrigger approach" in which insurance coverage begins on the date of exposure and ends on the date of manifestation, despite North River's contention that science no longer supports the theory that the progression of cancer begins with the initial exposure.

The J.H. France decision relied on the scientific opinion that asbestos-related disease commences with the first inhalation of fibers.

Wettick said no Pennsylvania court has considered a challenge to the J.H. France ruling based on changing views in the scientific community.

In following J.H. France, Wettick said insurers owe a duty of coverage to insureds for their liability under tort law, even if a court's finding of liability conflicts with scientific opinion.

Wettick said J.H. France's finding that coverage begins with the initial exposure to asbestos, rather than with the exposure that actually began the progression of cancer at some later date, minimizes the risk that an insured will be liable for claims that don't fall within a coverage period.

"There may be other approaches that achieve the same result," Wettick said. "However, the bottom line is that the reasonable expectations of the insured should be protected through an interpretation of insurance coverage that parallels the insured's liability, and J.H. France provides such protection."

According to Wettick, MSA has been sued numerous times throughout the country since the 1980s by plaintiffs alleging they developed mesothelioma or asbestos-related lung cancer from exposure to MSA products.

At issue in North River are three policies covering the periods from April 1, 1980, to April 1, 1981; April 1, 1981, to April 1, 1982; and April 1, 1982, to April 1, 1983, according to Wettick.

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