1 Westfield Ins. v . Sistersville Tank Works

, No. 2 2

- 848

Armstead

, Justice, dissenting :

I dissent from the majority opinion’s holding in syllabus point six that “[a]

continuous

- trigger theory applies to determine when coverage is activated under the

insuring agreement of an occurrence

- based CGL policy if the policy is ambiguous as to

when coverage is trigg ered. ” Instead, I believe the Court should have found that if an

occurrence

- based CGL policy is ambiguous as to when coverage is trigg er ed, the

manifestation theory of coverage applies because it would provide certainty to all parties

as to when coverage is triggered. Further, the manifestation theory is consistent with this

Court’s existing law on when a “ bodily injury ” is said to have occurred . Moreover, this

issue has been addressed and analyzed by the Southern District of West Virginia in State

Auto Prop. & Cas. Ins. Co. v. H.E. Neumann Co. , No. 2:14

- CV

- 19679, 2016 WL 5380925

,

(S.D.W. Va. Sept. 23, 2016) (“ State Auto ”) . It concluded that “ the manifestation theory is

the appropriate approach in the present context of latent diseases[.]” Id. at 17. I agree with

the district court’s analysis and believe this Court should have followed the same approach.

Therefore, I respectfully dissent from the majority opinion’s ruling.

As noted by the United States Court of Appeals for the Fourth Circuit

, this

Court has not addressed the issue of when a latent bodily injury, sickness, or disease occurs

under an occurrence

- based CGL policy so as to trigger coverage. Westfield Ins. Co. v.

Sistersville Tank Works, Inc ., No. 20

- 2052, 2022 WL 16911994, at *2

- 3 (4th Cir. Nov. 14,

2022). Therefore , the Court of Appeals certified the following question to this Court: 

### FILED

November 8, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 At what point in time does bodily injury occur to trigger

insurance coverage for claims stemming from chemical

exposure or other analogous harm that contr ibuted to

development of a latent illness?

In answering this question, I agree with Petitioner’s assertion that the

manifestation theory of coverage “most closely follows existing West Virginia law on

when a bodily injury can be said to have occurred.” In previous cases involving whether

insurance coverage applies in a bodily injury claim, this Court has recognized that at least

some physical manifestation of harm is necessary to trigger coverage

. This Court has held

that “[i]n an insurance liability po licy, purely mental or emotional harm that .

. . lacks

physical manifestation does not fall within a definition of ‘bodily injury’ which is limited

to ‘bodily injury, sickness, or disease.’” Syl. P t. 1, in part, Smith v. Animal Urgent Care,

Inc ., 208 W. Va . 664, 542 S.E.2d 827 (2000) . Similarly, this Court has provided that

“[b] ecause there is no indication that [the plaintiff’s] emotional distress has physically

manifested itself

, we conclude that she has not sustained a ‘ bodily injury ’ to trigger

coverage under [the insurer’s] CGL policy. ” Cherrington v. Erie Ins. Prop. & Cas. Co.

,

231 W. Va. 470, 484, 745 S.E.2d 508, 522 (2013) (emphasis added).

While these prior cases from our Court did not directly address the present

issue before us, the Southern District Court of West Virginia squarely addressed the current

issue in State Auto

, 2016 WL 5380925

. 1 T he district court in State Auto examined how

1 The Southern District Court ’s ruling in State Auto was vacated pursuant to

settlement

. See State Auto Prop. & Cas. Ins. Co. v. H.E. Neumann Co. , No. 2:14

- CV

- (continued . . .)3 this Court would determine the applicable coverage trigger where an employer was sued

for exposure to various chemicals and heavy metals resulting in certain lung diseases. The

district court noted that the issue was whether the claimant ’s “‘ bodily injury ’ occurred

during the policy peri od.

. . . Courts refer to this disagreement as pertaining to the so

- called

‘trigger of coverage,’ i.e., what it is that must happen during the policy period in order to

trigger the insurance company ’ s duty to defend and indemnify the insured.” Id. at 15. The

district court then explained that

[t] he plain language of the CGLs and the Umbrella Policies

does not resolve the trigger

- of

- coverage issue in the context of

latent diseases. In particular, in order for there to be coverage,

the “bodily injury” must be caused by an “occurrence.”

. . . However, the policies do not include any language limiting

coverage based on the date of the “occurrence.” Instead, the

temporal requirement is provided by the language that “[t]he

‘bodily injury’ .

. . [must] occur[ ] during the policy period.”

.

. . This vague temporal requirement is what injects ambiguity

into these coverage provisions in the context of latent diseases.

Id. at 16 (internal quotation and citation omitted).

After examining multiple approaches that have been applied in determining

when coverage triggers in a latent injury case, the district court found that “ the

manifestation theory is the appropriate approach in the present context of latent diseases

for nume rous reasons. ” Id. at 17. The district court noted that its application of the

manifestation trigger was consistent with two recent federal district court decisions that

19679, 2017 WL 1536464, (S.D.W. Va. Mar. 17, 2017) . While State Auto was ultimately

vacated due to settlement, its reasoning and analysis directly address the issue before us in

the current matter.4 “ addressed identical trigger

- of

- coverage policy language

— i.e., coverage only triggers if

the relevant harm ‘ occurs during the policy period ’

— and applied the manifestation

theory. ” Id. 2

Next, th e district court found that “ the manifestation approach provides a

measure of certainty ” in determining the coverage trigger in latent conditio n cases. Id. It

explained this conclusion as follows:

The general rule is that the time of the occurrence of an

accident within the meaning of an indemnity policy is not the

time the wrongful act was committed but the time when the

complaining party was actually damaged. Often, these cases

involve a wrongful act that produces no harm for a period of

time and then suddenly manifests itself in a burst of damage.

. . . There are situations, however, in which the existence or

scope of damage remains conce aled or uncertain for a period

of time even though damage is occurring. . . . Determining

exactly when damage begins can be difficult, if not impossible.

In such cases we believe that the better rule is that the [trigger

of coverage] is deemed to take plac e when the injuries first

manifest themselves.

Id. at 18 (internal citation and quotation omitted).

While the district court found that the manifestation approach would provide

certainty as to the trigger of coverage, it concluded that

2 The district court cited Westfield Ins. Co. v. Mitchell , 22 F. Supp. 3d 619, 622

- 23

(S.D. W. Va. 2014) and Simpson

- Littman Constr., Inc. v. Erie Ins. Prop. & Cas. Ins. Co

., 2010 WL 3702601 (S.D. W. Va. Sept. 13, 2010) . While noting that “ these cases involved

a different type of harm

— property damage, rather than latent diseases, ” the district court

nevertheless found that “ the similarities between the alleged harm in those cases and the

instant matter are striking. In particular, the facts

. . . all involve an initial harm, latency

period, then discover y of the harm. ” Id. at 17.5 [t] he determination of when exactly [the claimant] was

exposed to the allegedly harmful materials is likely near

imposs ible.

. . . Indeed, as the parties note, [ the claimant]

alleges exposure to harmful substances over a period of several

decades.

. . . In such circumstances, a rule limiting coverage to

the time of exposure is untenable, insofar as this determination

may s imply be impossible.

. . . Providing for coverage under

the manifestation theory, on the other hand, provides parties

with certainty as to the trigger of coverage

— the date on which

the individual manifests the latent condition.

Id.

Based on the foregoing, t he district court held that “ in applying West Virginia

substantive law the manifestation theory is the appropriate approach for the timing

- of

coverage issue relating to the latent

- disease allegations [.]” Id. at 19. I agree with State

Auto’s re asoning and analysis and believe this Court should have applied the same

approach in answering the certified question at issue. 3

3 The First Circuit arrived at the same conclusion in Eagle

- Picher Indus., Inc. v. Liberty Mut. Ins. Co. , 682 F.2d 12, 19 (1st Cir. 1982). In Eagle

- Picher , the court closely

examined the policy language and found:

The policies clearly distinguish between the event which causes injury

— the

accident or exposure

— and the resulting injury or disease . Yet . . . it is the

resulting injury, not the exposure, which must take place “during the policy

period” in order to trigger co verage; and it is uncontested that even sub

clinical injury to the lung does not occur simultaneously with the inhalation

of asbestos

. . . . We would also observe that, if a single exposure to asbestos

was intended to trigger coverage, the policy language would likely have

reflected this intent, rather than defining an “occurrence” in part as a

“continuous or repeated” exposure to conditions.

(continued . . .)6 I agree with the district court that the manifestation theory should be the

general rule that applies in determining when co verage is trigger ed in a latent injury case

.

However, this general rule should clearly be tempered by the language of each policy in a

specific case. Indeed, the parties are free to enter into policy agreements that specify

continuous trigger, manifestat ion trigger, or another approach that the parties deem

Moreover,

. . . the common, ordinary meaning of the policy language

supports the manifestation theory. An individ ual with tiny sub

- clinical

insults to her lungs would not say that she had any injury or disease, given

one expert’s testimony that “over 90% of all urban city dwellers have

asbestos

- related scarring.” Rather, she would say that a disease resulted

when sh e had symptoms which impaired her sense of well

- being, or when a

doctor was able to detect sufficient scarring to make a prognosis that the

onset of manifested disease was inevitable. “Injury” is defined by Webster

as “hurt, damage, or loss sustained”; it is a broad term which covers the

“result of inflicting on a person or thing something that causes loss, pain,

distress, or impairmen t.” As sweeping as this definition is, it is difficult to

consider sub

- clinical insults to the lung to constitute an “injur y” when these

insults do not cause “loss, pain, distress, or impairment” until, if ever, they

accumulate to become clinically evident or manifest

.

Finally, the policies distinguish between “bodily injury” and “sickness

or disease.” If the terms are to ha ve any distinct meaning, “bodily injury” is

most easily thought of as an injury caused by external violence or impact

. A sbestosis, by contrast, is normally considered to be a disease, not a bodily

injury.

. . . “ Disease,” in turn, is defined as “an impair ment of the normal

state of the living animal

... or of any of its components that interrupts or

modifies the performance of the vital functions.” Every disease is

presumably preceded by the onset of sub

- clinical changes in the body. To

state that the dise ase occurs when these sub

- clinical alterations take place,

where, as here, the disease does not inevitably or even usually result from the

sub

- clinical changes, is to subvert the plain meaning of “disease” and to read

the term entirely out of the policy.

Id.

, 682 F.2d at 19

- 20 (internal citation omitted)7 appropriate. However, when an occurrence

- based CGL policy is ambiguous as to when

coverage is triggered , I believe the manifestation theory should be applied.

Based on the foregoing, I respectfully dissent from the majority opinion.