Summary Judgment Reversed on Application of “All Sums” Approach United States District Court, E.D. Missouri, Eastern District

MISSOURI—This suit involves multiple insurance policies covering the same dates of exposure.  The spouse of an Anheuser-Busch (AB) employee developed mesothelioma from asbestos exposure acquired while laundering the clothes of her husband, who worked for AB from 1971-1996.  Suit was filed in 2008, and AB tendered its defense to Zurich American Insurance Company (Zurich), which had issued personal injury and excess coverage policies to AB for two periods covering 1967-72 and 1972-1980.  Zurich defended under a reservation of rights, paid all defense costs, and settled the matter in 2014 for $1.5 million.

Zurich then brought the instant matter for equitable contribution, subrogation, and unjust enrichment against its insured AB, and their subsequent insurer Insurance Company of North America (INA), which had issued a policy to AB covering 1980-1997.  Finding conflicting Missouri state law opinion on insurance policy interpretation in the context of asbestos exposure, the court granted summary judgment to INA and denied summary judgment as to AB. In so ruling, the court (inaccurately) predicted that the Missouri Supreme Court would allocate the settlement and costs between Zurich and INA based on the amount of time on the policy during the exposure period, or “pro rata” loss allocation.  Given a new Missouri insurance coverage decision (Nooter Corp. v. Allianz Underwriters Insurance Co., 536 S.W. 3d 251 (Mo. Ct. App. 2017)), Zurich filed a motion to reconsider the court’s rulings on the summary judgment motions.

Although a one day bench trial had already been held in this case, the court noted its discretionary authority to review and set aside its interlocutory summary judgment rulings in the interests of justice given the Missouri Court of Appeals’ recent decision in Nooter, which involved consecutive insurers of “long tail” asbestos claims, just as in the instant matter.  In its analysis of the motion to reconsider, the court determined that it had not applied the “all sums” approach to policy disputes as required by Nooter, and instead had applied a “pro rata” approach in denying Zurich’s summary judgment motion and granting INA’s motion.  An “all sums” approach permits the policy holder to select a policy from among the years triggered by the occurrence at issue.  The insurer can then seek contribution from other triggered insurers under common law or under each policy’s “other insurance” clause.  A “pro rata” approach spreads the damages across the entire policy periods at issue for triggered insurers.

The court reversed its previous decision, and granted summary judgment for AB.  Under Nooter, AB was permitted to “target tender” a policy of its choosing from the exposure period, and it chose the Zurich policy.  In finding summary judgment for AB, the court determined that Zurich could not obtain equitable remedies from its insured to avoid the “all sums” obligations of its insurance contract with AB. The court granted the requests of Zurich and INA to submit further briefs on the motion for reconsideration as to the previous grant of INA’s summary judgment motion given the law of Nooter, as INA contended that its obligations differed from Zurich due to exclusions and endorsements in its policy.

Read the full decision here.

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