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*********************************************** 
R.T. VANDERBILT COMPANY, INC. v. HARTFORD

ACCIDENT AND INDEMNITY COMPANY ET AL.

(SC 20000)

(SC 20001)

(SC 20003)

Robinson, C. J., and Palmer, D’Auria, Mullins, Kahn and Ecker, Js.

Syllabus

The plaintiff, which previously mined and sold industrial talc that allegedly

contained asbestos, sought, inter alia, a declaratory judgment to determine, inter alia, its rights and obligations under certain insurance policies

issued by the defendant insurance companies as to the costs of defending

and indemnifying the plaintiff in numerous civil actions brought against

it for personal injuries sustained allegedly as a result of exposure to

asbestos. The defendants consisted of approximately thirty insurance

companies, including H Co. and C Co., primary insurers that issued

certain insurance policies to the plaintiff between 1948 and 2008, when

it mined and sold talc, and L Co., M Co., and P Co., secondary insurers

that issued umbrella or excess coverage to the plaintiff during that

same period. Prior to trial, the court issued certain scheduling orders

separating the trial into four phases, the first two of which were tried

to the court and focused on issues pertaining to how defense and indemnification costs were to be allocated between the plaintiff and the defendants, specifically with respect to long latency claims alleging that the

claimants’ exposure to asbestos caused a series of injuries that developed gradually over the course of years, thereby implicating multiple

insurance policy periods. The court also considered, inter alia, whether

certain pollution and occupational disease exclusions in some of the

secondary insurance policies precluded coverage. After the first two

phases of the trial were complete, the trial court issued memoranda of

decision applying the time on the risk rule of contract law, which provides for pro rata allocation of defense and indemnity costs for asbestos

related disease claims, in order to determine how to allocate those costs

among the parties. In doing so, the trial court adopted the continuous

trigger theory of insurance coverage, pursuant to which every insurer

that had issued a policy in effect from the date that a claimant was first

exposed to asbestos until the date the claimant manifested an asbestos

related disease is potentially liable for defense and indemnity costs. To

that end, the trial court precluded the admission of expert testimony

regarding the adoption of the trigger theory of liability and medical

science about the timing of bodily injury from asbestos related disease.

The court also adopted the unavailability of insurance exception to the

time on the risk rule, pursuant to which defense and indemnity costs

are allocated to the insured for periods of time during which insurance

is not available. With respect to the pollution exclusions at issue, the

trial court concluded that they were ambiguous as to whether they

encompassed claims arising from exposure to asbestos, as opposed to

claims strictly involving traditional environmental pollution, and, therefore, that those exclusions did not preclude coverage. As to the occupational disease exclusions contained in two policies issued by L Co. and

P Co., the trial court concluded that those exclusions were unambiguous

and that they barred coverage only for claims brought by the plaintiff’s

own employees, not for claims brought by nonemployees who developed

occupational diseases while using the plaintiff’s talc in the course of

working for other employers. Thereafter, the plaintiff and certain defendants were granted permission to file interlocutory appeals with the

Appellate Court pursuant to the rules of practice (§ 61-4 [a]). The Appellate Court concluded that the trial court properly adopted, as a matter

of law, a continuous trigger theory of coverage for asbestos related

disease claims and, accordingly, upheld the preclusion of expert testimony proffered by M Co. on the timing of bodily injury from asbestos

related disease. The Appellate Court also upheld the trial court’s adop-
tion of an unavailability of insurance exception to the time on the risk

rule and agreed with the trial court that the pollution exclusions were

ambiguous and did not bar coverage for the underlying claims outside

of the context of traditional environmental pollution. With respect to

the occupational disease exclusions, however, the Appellate Court disagreed with the trial court’s determination that those exclusions were

ambiguous and concluded that those exclusions unambiguously barred

coverage for occupational disease claims brought not only by the plaintiff’s own employees, but also by nonemployees who developed an

occupational disease while using the plaintiff’s talc in the course of

working for other employers. The Appellate Court reversed in part the

judgment of the trial court, and the plaintiff and certain defendants, on

the granting of certification, filed separate appeals with this court. Held:

1. The Appellate Court properly upheld the decision of the trial court to

adopt a continuous trigger theory of coverage for asbestos related disease claims and an unavailability of insurance exception to the time on

the risk rule of contract law, and to preclude M Co.’s proffered expert

testimony regarding medical science and the timing of bodily injury

from asbestos related disease, and also properly upheld the trial court’s

conclusion that the pollution exclusions do not bar coverage for asbestos

related disease claims: following a careful examination of the appellate

record and consideration of the briefs and arguments presented as to

those issues, this court concluded that the Appellate Court sufficiently

addressed those issues and, accordingly, adopted the relevant parts of

that court’s opinion as the proper statement of the issues and the applicable law concerning those issues.

2. The Appellate Court correctly concluded that the language of the occupational disease exclusions in the secondary insurance policies issued by

L Co. and P Co. applied not only to claims brought against the plaintiff

by its own employees, but clearly and unambiguously excluded from

coverage claims brought by nonemployees of the plaintiff who developed

asbestos related diseases while using the plaintiff’s talc in the course

of working for other employers: contrary to the plaintiff’s claim that

the term ‘‘occupational disease,’’ which was not specifically defined by

the policies issued by L Co. and P Co., is a term of art devoid of

meaning outside of the employer-employee relationship and workers’

compensation law, that term has a meaning, as gleaned from dictionaries

in print at the time the policies were issued, outside of the context of

workers’ compensation law that contemplates an illness caused by factors or conditions arising out of one’s employment; moreover, the occupational disease exclusions did not expressly limit their application to

the plaintiff’s employees, whereas other exclusions in those policies

expressly contained such limiting language, and the Appellate Court’s

reading of the exclusion did not render the liability coverage provided

by the policies meaningless, because, although the exclusions may significantly limit coverage, the parties had stipulated that there were additional classes of nonemployees whose claims were not barred by the

occupational disease exclusions.

Argued March 28—officially released October 8, 2019

Procedural History

Action for, inter alia, a declaratory judgment to determine the rights of the parties in connection with certain

insurance policies as to the defense and indemnification

of the plaintiff in numerous civil actions brought against

it for personal injuries allegedly sustained as a result

of asbestos exposure, and for other relief, brought to

the Superior Court in the judicial district of Hartford

and transferred to the judicial district of Waterbury,

Complex Litigation Docket, where Columbia Casualty

Company et al. were joined as defendants; thereafter,

the court, Shaban, J., denied the motions for summary

judgment filed by the defendant Mt. McKinley Insurance

Company et al.; subsequently, the plaintiff withdrew

the complaint as against the defendant TIG Insurance

Company; thereafter, the court bifurcated the trial and
ordered that the parties’ declaratory judgment claims

be tried to the court in four phases; subsequently, the

court granted the motions for summary judgment filed

by the defendant Government Employees Insurance

Company and to dismiss filed by the defendant National

Union Fire Insurance Company of Pittsburgh, PA, and

denied the motions for summary judgment filed by

the defendant National Casualty Company et al.; thereafter, the first phase was tried to the court; subsequently, Vanderbilt Minerals, LLC, was substituted as

the plaintiff; thereafter, the second phase was tried to

the court; subsequently, the court issued memoranda of

decision; thereafter, the defendant Everest Reinsurance

Company appealed and the substitute plaintiff cross

appealed to the Appellate Court; subsequently, the

court, Shaban, J., granted the motions filed by the substitute plaintiff and the defendant Mt. McKinley Insurance Company for permission to appeal to the Appellate Court; thereafter, the Appellate Court granted the

motions for permission to appeal filed by the substitute plaintiff and the defendant Mt. McKinley Insurance

Company; subsequently, the substitute plaintiff and the

defendant Mt. McKinley Insurance Company filed separate appeals with the Appellate Court; thereafter, the

substitute plaintiff and the defendant Everest Reinsurance Company filed amended appeals; subsequently,

the defendant St. Paul Fire and Marine Insurance Company et al. filed separate appeals and cross appeals with

the Appellate Court, which consolidated the appeals

and cross appeals; thereafter, the Appellate Court,

Lavine, Beach, and Bear, Js., reversed in part the judgment of the trial court and remanded the case for further

proceedings, and the substitute plaintiff and the defendant Mt. McKinley Insurance Company et al., on the

granting of certification, filed separate appeals with this

court. Affirmed.

Michael J. Smith, pro hac vice, with whom were

Jeffrey R. Babbin and, on the brief, Michael Menapace,

Bryan W. Petrilla, pro hac vice, Laura P. Zaino, Lawrence A. Serlin, pro hac vice, Michael G. Albano, Peter

R. Reynolds, Amy R. Paulus, pro hac vice, Michael L.

Duffy, pro hac vice, William A. Meehan, Alexander J.

Mueller, pro hac vice, Stephen T. Roberts, Robert M.

Flannery, pro hac vice, Louis B. Blumenfeld, Lawrence

A. Levy, pro hac vice, Matthew G. Conway, Kevin M.

Haas, pro hac vice, Marianne May, pro hac vice,

Michael F. Lettiero, Lawrence D. Mason, pro hac vice,

John A. Lee, pro hac vice, James P. Sexton, Daniel

Hargraves, pro hac vice, David A. Slossberg, John E.

Rodewald, pro hac vice, and Heather L. McCoy, for

the appellants in SC 20001 (defendant TIG Insurance

Company et al.).

John W. Cerreta, with whom were Kathleen D. Monnes and, on the brief, Erick M. Sandler, for the appellants in SC 20000 (defendant Travelers Casualty and

Surety Company et al.).
Jacob M. Mihm and Marilyn B. Fagelson, with whom

were Proloy K. Das, Rachel Snow Kindseth and, on the

brief, Stephen Hoke, for the appellant in SC 20003 and

the appellees in SC 20000 and SC 20001 (substitute

plaintiff).

Lawrence D. Mason, pro hac vice, with whom, on

the brief, were John A. Lee, pro hac vice, Michael F.

Lettiero, Laura P. Zaino, Lawrence A. Serlin, pro hac

vice, William A. Meehan, Alexander J. Mueller, pro hac

vice, Stephen T. Roberts, Robert M. Flannery, Heather

L. McCoy, Jeffrey R. Babbin, Michael Menapace,

Michael J. Smith, pro hac vice, Bryan W. Petrilla, pro

hac vice, Matthew G. Conway, Kevin M. Haas, pro hac

vice, Marianne May, pro hac vice, Louis B. Blumenfeld

and Lawrence A. Levy, pro hac vice, for the appellees

in SC 20003 (defendant National Casualty Company

et al.).

Alexander J. Mueller, pro hac vice, with whom was

William A. Meehan, for the appellees (defendant Certain London Market Insurers et al.).

Stephanie V. Corrao and Laura A. Foggan, pro hac

vice, filed a brief for the Complex Insurance Claims

Litigation Association as amicus curiae in SC 20000 and

SC 20001.

Michael T. McCormack filed briefs for the National

Association of Manufacturers as amicus curiae in SC

20000, SC 20001 and SC 20003.
Opinion

ROBINSON, C. J. These certified appeals, which present us with several significant questions of insurance

law, arise from coverage disputes between the plaintiff,

R.T. Vanderbilt Company, Inc. (Vanderbilt),1 and the

defendants, who are numerous insurance companies

(insurer defendants)2

that issued primary and secondary comprehensive general liability insurance policies

to Vanderbilt between 1948 and 2008, stemming from

thousands of underlying lawsuits alleging injuries from

exposure to industrial talc containing asbestos that

Vanderbilt mined and sold. Vanderbilt and the insurer

defendants appeal, upon our granting of their petitions

for certification,3

from the judgment of the Appellate

Court affirming in part and reversing in part numerous

interlocutory decisions made by the trial court in connection with the first and second phases of a complex

trial between the parties. R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61,

75–76, 156 A.3d 539 (2017). On appeal, the insurer defendants claim that the Appellate Court improperly (1)

upheld the trial court’s adoption of a ‘‘continuous trigger’’ theory of coverage for asbestos related disease

claims as a matter of law and the trial court’s related

preclusion of expert testimony on current medical science regarding the actual timing of bodily injury from

such disease, (2) upheld the trial court’s adoption of

an ‘‘unavailability of insurance’’ exception to the ‘‘time

on the risk’’ rule of contract law, which provides for

pro rata allocation of defense costs and indemnity

for asbestos related disease claims, and (3) interpreted

pollution exclusion clauses in certain insurance policies

as applicable only to claims arising from ‘‘traditional’’

environmental pollution, rather than to those arising

from asbestos exposure in indoor working environments. In its appeal, Vanderbilt claims that the Appellate Court improperly construed occupational disease

exclusions present in certain policies as not limited

to claims brought by Vanderbilt’s own employees.

Because we conclude that the Appellate Court’s comprehensive opinion properly resolved these significant

issues, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court aptly sets forth

the relevant background facts and procedural history.4

‘‘Vanderbilt is a Connecticut corporation engaged in

the mining and sale of various chemical and mineral

products. In 1948, it began to produce industrial talc

through its subsidiary, Gouverneur Talc Company.

Vanderbilt continued to mine and sell talc until 2008,

when it ceased production and sold off the last of its

inventory.

‘‘Over the past several decades, thousands of underlying actions have been filed against Vanderbilt in various jurisdictions throughout the United States, many

of which remain pending. Those actions alleged that
talc and silica mined and sold by Vanderbilt contained

asbestos or otherwise caused diseases that are correlated to asbestos exposure, such as mesothelioma,

other asbestos related cancer, and asbestosis (collectively, asbestos related disease). In response, Vanderbilt

has taken the position that its industrial talc does not

contain asbestos. From the time that it started mining

talc, Vanderbilt purchased or attempted to purchase

primary and secondary comprehensive general liability

insurance to cover the defense and indemnity costs of

asbestos related claims.

‘‘Vanderbilt brought the present action against several insurance companies that issued it primary insurance policies between 1948 and 2008 . . . .’’ Id., 76–77;

see footnote 2 of this opinion (listing defendants). In

particular, Vanderbilt alleged that its primary insurers—

Hartford Accident and Indemnity Company, and Continental Casualty Company, Columbia Casualty Company

and Continental Insurance Company (collectively, Continental) ‘‘had breached their contractual obligations to

pay their proper shares of defense and indemnity costs

in the underlying actions. Vanderbilt also sought a

declaratory judgment as to the parties’ respective rights

and responsibilities under the policies at issue.

‘‘Continental subsequently filed a [third-party] complaint against various insurance companies that had

provided secondary coverage—umbrella or excess5—

to Vanderbilt during the time that it was in the talc

business.’’ (Footnote altered.) R.T. Vanderbilt Co. v.

Hartford Accident & Indemnity Co., supra, 171 Conn.

App. 77. ‘‘Vanderbilt thereafter brought direct claims

against these [third-party] secondary insurers.’’ Id., 78.

‘‘Prior to the start of trial, the trial court issued a

series of scheduling orders, pursuant to which it separated the trial into four phases. In the first two phases,

which were tried to the court and have been completed,

the court addressed Vanderbilt’s declaratory judgment

claims and related counterclaims and cross claims.

The primary issue before the court in those phases

was how insurance obligations are to be allocated with

respect to long latency6 asbestos related claims alleging

injuries that occur over the course of years or even

decades and, therefore, potentially implicate multiple

insurance policy periods. Specifically, in Phase I, the

court addressed the question of how defense costs for

the underlying actions were to be allocated as between

Vanderbilt and its insurers. That required a determination of (1) the periods during which the defendants’

insurance policies were in effect and (2) whether Vanderbilt should be treated as self-insured for any period

so as to create an equitable obligation to contribute to

the costs of its defense. In Phase II, the court considered

the same questions with respect to indemnity costs. In

that phase, the court also issued rulings with respect

to the meaning of various policy provisions, the exhaus-
tion of Vanderbilt’s primary policies, and related issues.

In Phase III of the trial, which also will be tried to the

court, the court plans to adjudicate the defendants’

claims for recovery of overpayment of insurance costs.

In Phase IV, Vanderbilt’s breach of contract claims

against its insurers are to be tried to a jury.’’ (Footnote

altered.) Id., 78–79.

‘‘In addressing the allocation questions in Phases I

and II, the trial court proceeded on the assumption

that Connecticut follows a pro rata, [time on the risk]

approach to allocating insurance obligations in longtail cases. See footnote [6] of this opinion. Under that

allocation scheme, the court assumed that a victim of

asbestos related disease suffers continuous injuries

commencing at the time of initial exposure to asbestos

and extending until disease manifests and, therefore,

that defense and indemnity costs must be allocated

across all of the insurance policies on the risk (i.e.,

potentially liable) during that period (allocation block).

The court further assumed that (1) the policyholder is

responsible for a pro rata share of costs for any period

during which it is uninsured or underinsured (proration

to the insured), including so-called ‘orphan share’ periods covered by policies that were lost, destroyed, or

issued by insurers that subsequently became insolvent;

but (2) Connecticut has embraced an unavailability of

insurance exception pursuant to which there is no proration to the insured for periods during which insurance

is not available. Applying these principles to the present

case, the court held evidentiary hearings during Phases

I and II to determine, among other things, whether

defenseand indemnityinsurance coverage,respectively,

was available for asbestos related claims between 1948

and 2008 and, if so, whether Vanderbilt availed itself of

such coverage.’’ Id., 79–80.

On the basis of findings of fact rendered after Phase I,7

the trial court ‘‘determined that the allocation of defense

and indemnity costs would be applied prospectively in

the following manner, on the basis of a total potential

exposure period of [732] months running from 1948

through 2008:8

(1) as to defense costs, Vanderbilt would

be liable for 265 of the [732] months; (2) as to indemnity

costs, Vanderbilt would be liable for [96] of the [732]

months; and (3) Vanderbilt’s responsibility as to both

defense and indemnity costs would be adjusted upward

for any additional periods when there was a gap in coverage or an insolvent insurer. The court applied these same

findings, principles, and allocation rules to underlying

actions that alleged harms arising from nonasbestos particulates such as silica. Specifically, the court credited

testimony that all of the underlying actions, whether on

their face or through subsequent discovery or investigation, involved claims of exposure to asbestos.

‘‘In its Phase II decision, the court also considered

the applicability of two types of exclusions contained
in certain of Vanderbilt’s excess and umbrella policies.

The court first addressed the claim by several secondary

insurers that the pollution exclusion clauses contained

in their policies barred coverage for the underlying

actions. The court concluded that the relevant policy

language was ambiguous as applied to the asbestos

related claims and, therefore, that the exclusions did

not preclude coverage. The court also addressed the

issue of whether occupational disease exclusions contained in certain secondary policies applied only to

claims brought by the policyholder’s own employees.

The court found that the exclusions were unambiguous

and that they did, in fact, bar coverage only for claims

brought by Vanderbilt’s own employees.’’ (Footnote

altered.) Id., 82–83.

‘‘Following the completion of the Phase II trial, Vanderbilt and several defendants filed appeals and cross

appeals [with the Appellate Court], challenging approximately twenty of the court’s conclusions and findings.’’9

Id., 83. The Appellate Court subsequently issued an opinion of extraordinary complexity and comprehensiveness addressing a plethora of issues.10 With respect to

the issues now before us in this certified appeal, the

Appellate Court first concluded that the trial court properly adopted a ‘‘continuous trigger’’ theory of coverage

for asbestos related disease claims as a matter of law

and, accordingly, properly precluded the admission of

expert testimony on current medical science regarding

the actual timing of bodily injury from such disease.

Id., 118–19. The Appellate Court further upheld the trial

court’s adoption of an ‘‘unavailability of insurance’’

exception to the ‘‘time on the risk’’ rule of contract law,

which provides for the pro rata allocation of defense

costs and indemnity for asbestos related disease claims.

Id., 143. The Appellate Court then interpreted the pollution exclusion clauses as applicable only to claims arising from ‘‘traditional environmental pollution,’’ rather

than those arising from asbestos exposure in indoor

working environments. Id., 252. Finally, the Appellate

Court concluded that the trial court had improperly

construed the occupational disease exclusions as ‘‘bar-

[ring] coverage only for occupational disease claims

brought by a policyholder’s own employees and that the

exclusions do not apply to complainants who developed

occupational disease while using the policyholder’s products in the course of working for another employer.’’

Id., 256.

The Appellate Court rendered judgment reversing the

decisions of the trial court ‘‘with respect to [its] determinations that (1) Vanderbilt is responsible for defense

costs for the period of March 3, 1993 through April 24,

2007, (2) a default date of first exposure of January 1,

1962, applies to pending and future claims, and (3) the

occupational disease exclusions in certain secondary

policies apply only to claims brought by Vanderbilt’s

own employees; the proper allocation methodology and
the prospective application of that methodology are

clarified as set forth herein . . . .’’ Id., 309. The Appellate Court then remanded the case to the trial court

‘‘for further proceedings consistent with [its] opinion.’’

Id. These certified appeals followed. See footnote 3 of

this opinion.

I

We begin with the claims of the numerous insurer

defendants in the certified appeals docketed as Docket

Nos. SC 20000 and SC 20001. See footnote 2 of this opinion. Specifically, they contend that the Appellate Court

improperly upheld the decision of the trial court (1)

adopting a ‘‘continuous trigger’’ theory of coverage for

asbestos related disease claims as a matter of law, (2)

precluding expert testimony on current medical science

regarding the actual timing of bodily injury from asbestos related diseases, and (3) adopting an ‘‘unavailability

of insurance’’ exception to the ‘‘time on the risk’’ rule

of contract law. The insurer defendants also claim that

the Appellate Court improperly interpreted pollution

exclusion clauses in certain insurance policies as applicable only to claims arising from ‘‘traditional environmental pollution,’’ rather than to those arising from

asbestos exposure in indoor working environments.

After carefully examining the record on appeal and

considering the briefs and arguments of the parties, we

have concluded that the judgment of the Appellate

Court should be affirmed with respect to these issues.

The Appellate Court’s thorough and well reasoned opinion more than sufficiently addresses these certified

questions, and there is no need for us to repeat the

discussion contained therein. We therefore adopt parts

III A, III B, and IV A of the Appellate Court’s opinion

as the proper statement of the issues and the applicable

law concerning those issues. See, e.g., Deutsche Bank

AG v. Sebastian Holdings, Inc., 331 Conn. 379, 384, 204

A.3d 664 (2019); State v. Henderson, 330 Conn. 793,

799, 201 A.3d 389 (2019).

II

We next turn to Vanderbilt’s claim, in Docket No. SC

20003, that the Appellate Court incorrectly determined

that occupational disease exclusion clauses in two

excess policies apply to claims brought by nonemployees of Vanderbilt who allegedly developed an occupational disease while using Vanderbilt talc at any workplace. The Appellate Court’s opinion sets forth the following additional facts and procedural history relevant

to this claim. ‘‘At trial, several of Vanderbilt’s secondary

insurers [secondary insurers]11 either sought declaratory judgments determining or raised special defenses

or claims alleging that occupational disease exclusions

in their policies precluded coverage for some of the

underlying actions. Two versions of the occupational

disease exclusion, contained in policies issued by Cer-
tain Underwriters at Lloyd’s, London (Lloyd’s), and

Pacific Employers Insurance Company (Pacific), are

at issue.12

‘‘The first policy at issue, Lloyd’s policy number 77/

18503/1/PNB21250D, was in effect from May 17, 1977

through March 3, 1979. The policy contains an endorsement clause stating in relevant part that ‘this policy shall

not apply . . . to personal injury (fatal or nonfatal) by

occupational disease.’ Several other defendants issued

secondary policies following form to the Lloyd’s policy.13

‘‘The second policy at issue, Pacific policy number XMO017535 (NCA15), was in effect from March 3,

1985 through March 3, 1986. It contains the following

endorsement clause: ‘This policy does not apply to any

liability arising out of: Occupational Disease.’ National

Casualty [Company (National Casualty)], [a secondary

insurer that] has taken the lead in challenging the trial

court’s rulings regarding the occupational disease

exclusions, issued an excess policy, number XU000233,

which follows form to the Pacific policy. Lloyd’s also

issued an excess policy that follows form to the Pacific

policy. None of the relevant policies defines the term

‘occupational disease.’

‘‘In addition to these occupational disease exclusions,

the Lloyd’s and Pacific policies contain employers’ liability exclusions. The Lloyd’s policy provides that ‘this

policy shall not apply . . . to the liability of employees.’ The Pacific policy provides that ‘[t]his policy does

not apply to personal injury to any employee of the

insured arising out of and in the course of his employment by the insured or to any obligation of the insured

to indemnify another because of damages arising out

of such injury.’ In addition, National Casualty’s excess

policy, while following form to the Pacific policy, also

includes its own ‘employers liability exclusion,’ which

is somewhat broader than the one in the Pacific policy.

It provides in relevant part: ‘[T]his policy shall not apply

to any liability for bodily injury, sickness, disease,

disability or shock, including death at any time resulting

therefrom . . . sustained by any employee of the

insured and arising out of and in the course of his

employment by the insured.’ Last, both the Lloyd’s and

Pacific policies contain exclusions for obligations for

which the insured may be held liable under workers’

compensation, unemployment compensation, or disability benefits laws.

‘‘To facilitate the trial court’s resolution of the issue,

the parties stipulated during the second phase of the

trial that none of the claimants in the underlying actions

[is] or ever [was a] Vanderbilt [employee]. The parties

further stipulated that the underlying complaints fall

into three categories: those that allege (1) exposure to

Vanderbilt products solely through the workplace of

another employer, (2) exposure both in and outside

the workplace, and (3) exposure solely outside the
workplace. Accordingly, if the occupational disease

exclusions do apply to nonemployees of Vanderbilt,

they likely will bar coverage for some but not all of the

underlying complaints during the relevant policy

years.14

‘‘In its Phase II decision, the trial court concluded

that the occupational disease exclusions apply only to

claims brought by Vanderbilt’s own employees.

Because the policies themselves do not define the term

‘occupational disease,’ the court looked to the Workers’

Compensation Act (act), General Statutes § 31-275

et seq., for a definition of the term. Section 31-275

(15) provides that ‘ ‘‘[o]ccupational disease’’ includes

any disease peculiar to the occupation in which the

employee was engaged and due to causes in excess

of the ordinary hazards of employment as such, and

includes any disease due to or attributable to exposure

to or contact with any radioactive material by an

employee in the course of his employment.’ The trial

court concluded that the term, as defined in the statute,

was unambiguous, and that it applied solely to employees of the insured. The court rejected the defendants’

argument that such a construction would render the

occupational disease exclusion superfluous, insofar

as the employers’ liability exclusions in the policies

already preclude coverage for any claims of workplace

injury or disease by employees of the policyholder. The

court reasoned that the act draws a distinction between

occupational diseases; General Statutes § 31-275 (15);

and ‘ ‘‘[p]ersonal injur[ies]’’ ’; General Statutes § 31-275

(16); and that the policies at issue incorporate that

distinction—whereas the occupational disease exclusion applies to employees of an insured who allege

occupational diseases, the employers’ liability exclusion applies to employees who allege that they have

suffered sudden personal injuries while on the job.

‘‘Because the court agreed with Vanderbilt that the

occupational disease exclusions do not apply to any of

the underlying claims, the court did not address Vanderbilt’s alternative arguments that (1) in the event that

the policy language is determined to be ambiguous, the

exclusions should be construed in favor of the insured

pursuant to the doctrine of contra proferentem, and (2)

certain of the defendants have waived their right to

invoke the exclusions.’’ (Footnote added; footnote

altered; footnotes in original.) R.T. Vanderbilt Co. v.

Hartford Accident & Indemnity Co., supra, 171 Conn.

App. 256–59.

On appeal, the Appellate Court disagreed with the

trial court’s construction of the occupational disease

exclusions, concluding instead that they ‘‘unambiguously bar coverage for occupational disease claims

brought not only by employees of Vanderbilt but also

by individuals who contracted an occupational disease

in the course of their work for other employers.’’ (Foot-
note omitted.) Id., 269–70. In concluding that the language of the exclusions was plain and unambiguous,

the Appellate Court rejected Vanderbilt’s ‘‘primary argument,’’ namely, ‘‘that the term occupational disease is so

interwoven with the concept of workers’ compensation

and other claims by an employee against his employer

as to be meaningless outside of that particular context.’’

(Internal quotation marks omitted.) Id., 262–63. The

Appellate Court also observed that, when the policies

were drafted ‘‘between the late 1970s and mid-1980s,

‘occupational disease’ had a common and ordinary

meaning within the legal and insurance fields.’’15 Id.,

263–64. The Appellate Court also relied on the rules

of contract construction and noted that the employer

liability exclusions were expressly limited to employees of the insured, whereas the ‘‘occupational disease

exclusions are framed broadly and do not contain any

similar language of limitation . . . .’’ Id., 269. Accordingly, the Appellate Court reversed the judgment of

the trial court with respect to the occupational disease

exclusions and remanded the case to the trial court with

direction ‘‘to consider Vanderbilt’s alternative argument

that certain defendants are precluded from invoking

the exclusions because they failed to timely plead the

exclusions as a special defense.’’ Id., 270.

On appeal, Vanderbilt claims that the Appellate Court

improperly failed to limit the application of the occupational disease exclusions to claims brought against

Vanderbilt by its own employees. Vanderbilt relies on

case law and legal dictionaries; see, e.g., Ins. Co. of

North America v. Forty-Eight Insulations, Inc., 451 F.

Supp. 1230 (E.D. Mich. 1978), aff’d, 633 F.2d 1212 (6th

Cir. 1980); Nolan v. Johns-Manville Asbestos & Magnesia Materials Co., 74 Ill. App. 3d 778, 392 N.E.2d 1352

(1979), aff’d, 85 Ill. 2d 161, 421 N.E.2d 864 (1981); Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md.

App. 605, 698 A.2d 1167, cert. denied, 348 Md. 205, 703

A.2d 147 (1997); Black’s Law Dictionary (5th Ed. 1979);

and argues that the term ‘‘ ‘occupational disease’ is a

term of art that refers only to disputes between [the]

employer and [the] employee or to statutory compensation plans for employees.’’ Vanderbilt also contends

that the Appellate Court’s interpretation of the term

‘‘occupational disease’’ is inconsistent with the longstanding rules by which we construe insurance policies

and their exclusions, in particular that an insurer bears

a heightened burden in proving the applicability of an

exclusion and that ambiguous exclusions are construed

in favor of the insured. Supported by the amicus curiae

National Association of Manufacturers, Vanderbilt contends that the Appellate Court’s construction of the

exclusion to the contrary ‘‘dramatically reduce[s] general liability coverage for manufacturers, particularly

in the context of claims of disease resulting from alleged

exposure to asbestos and other industrial products.’’

In response, National Casualty, leading the secondary
insurers, argues that the occupational disease exclusions are plain and unambiguous. Citing, among other

cases, Ricigliano v. Ideal Forging Corp., 280 Conn. 723,

912 A.2d 462 (2006), National Casualty contends that

the phrase ‘‘occupational disease’’ has a plain meaning

beyond the narrow workers’ compensation context

insofar as ‘‘an ‘occupational disease’ is a disease arising

from engaging in one’s occupation—if an employee

develops a condition arising out of his or her employment, that employee has an ‘occupational disease,’ no

matter where that employee works.’’ (Emphasis added.)

Responding to Vanderbilt’s historical and contextual

analysis of the term, National Casualty relies on TKK

USA, Inc. v. Safety National Casualty Corp., 727 F.3d

782 (7th Cir. 2013), Rodriguez v. E.D. Construction,

Inc., 126 Conn. App. 717, 12 A.3d 603, cert. denied, 301

Conn. 904, 17 A.3d 1046 (2011), Wyness v. Armstrong

World Industries, Inc., 171 Ill. App. 3d 676, 525 N.E.2d

907 (1988), Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.3d

851 (2013), and United National Ins. Co. v. J.H. France

Refractories Co., 36 Pa. D. & C.4th 400, 409–10 (C.P.

1996), to contend that the meaning of the phrase ‘‘occupational disease’’ has not changed over time ‘‘from the

pre-workers’ compensation era to the present’’; instead,

only the remedies available for such illness claims have

changed, with the addition of workers’ compensation

coverage in the first instance. National Casualty also

argues that Vanderbilt’s proffered construction of the

occupational disease exclusions violates rules of contract interpretation by adding nonexistent language and

rendering the exclusions ‘‘redundant, as the policies

at issue contain [e]mployers’ [l]iability and [w]orkers’

[c]ompensation exclusions that act specifically to

bar Vanderbilt employees’ workplace related claims.’’

National Casualty emphasizes that the occupational disease exclusions were ‘‘stand-alone provisions outside

of the base policy forms and, consequently, readily identifiable,’’ meaning that either Vanderbilt or its sophisticated brokers, acting as its agent, ‘‘knew exactly the

scope and limitations of the coverage Vanderbilt was

procuring,’’ rendering that coverage still meaningful

with respect to asbestos exposure that was even partially outside the workplace. In resolving this question

of first impression nationally, we agree with National

Casualty and conclude that the Appellate Court properly interpreted the occupational disease exclusions to

exclude occupational disease claims brought against

Vanderbilt by both its employees and nonemployees.

We begin with well established principles governing

the interpretation of insurance policies. ‘‘[C]onstruction

of a contract of insurance presents a question of law

for the [trial] court which this court reviews de novo.

. . . The determinative question is the intent of the

parties, that is, what coverage the [insured] expected

to receive and what the [insurer] was to provide, as

disclosed by the provisions of the policy. . . . In evalu-
ating the expectations of the parties, we are mindful

of the principle that provisions in insurance contracts

must be construed as laymen would understand [them]

and not according to the interpretation of sophisticated

underwriters and that the policyholder’s expectations

should be protected as long as they are objectively

reasonable from the layman’s point of view. . . .

[W]hen the words of an insurance contract are, without

violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover

the loss must, in preference, be adopted. . . . [T]his

rule of construction favorable to the insured extends

to exclusion clauses. . . . When construing exclusion

clauses, the language should be construed in favor of

the insured unless it has a high degree of certainty

that the policy language clearly and unambiguously

excludes the claim. . . . While the insured bears the

burden of proving coverage, the insurer bears the burden of proving that an exclusion to coverage applies.’’

(Citations omitted; internal quotation marks omitted.)

Nationwide Mutual Ins. Co. v. Pasiak, 327 Conn. 225,

238–39, 173 A.3d 888 (2017); see, e.g., Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co.,

312 Conn. 714, 740, 95 A.3d 1031 (2014) (‘‘[U]nambiguous terms are to be given their plain and ordinary meaning. . . . As with contracts generally, a provision in an

insurance policy is ambiguous when it is reasonably

susceptible to more than one reading.’’ [Internal quotation marks omitted.]). But see Travelers Casualty &

Surety Co. of America v. Netherlands Ins. Co., supra,

740–41 (noting that contra proferentem rule does not

apply in disputes between insurers). ‘‘[A]lthough policy

exclusions are strictly construed in favor of the insured

. . . the mere fact that the parties advance different

interpretations of the language in question does not

necessitate a conclusion that the language is ambiguous.’’ (Internal quotation marks omitted.) Liberty

Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn.

767, 796, 967 A.2d 1 (2009).

We begin with the language of the occupational disease exclusions at issue. The first policy at issue, Lloyd’s

policy number 77/18503/1/PNB21250D, was in effect

from May 17, 1977 through March 3, 1979. The occupational disease exclusion for this policy is contained in

an endorsement stating that ‘‘this policy shall not apply

. . . to personal injury (fatal or nonfatal) by occupational disease.’’ The second policy at issue, Pacific policy number XMO017535 (NCA15), was in effect from

March 3, 1985 through March 3, 1986. It contains the

following endorsement with an occupational disease

exclusion: ‘‘This policy does not apply to any liability

arising out of: Occupational Disease.’’ Because neither

of the policies at issue defines the term ‘‘occupational

disease,’’ our analysis begins with its ordinary meaning,

as ascertained from dictionaries contemporary to the

1970s and 1980s, when the policies were issued. See,
e.g., Lexington Ins. Co. v. Lexington Healthcare Group,

Inc., 311 Conn. 29, 42 n.8, 84 A.3d 1167 (2014); R.T.

Vanderbilt Co. v. Continental Casualty Co., 273 Conn.

448, 463, 870 A.2d 1048 (2005); Buell Industries, Inc.

v. Greater New York Mutual Ins. Co., 259 Conn.

527, 539, 791 A.2d 489 (2002). The Random House Dictionary of the English Language Unabridged (1966) p.

996, defines ‘‘occupational disease’’ as synonymous

with ‘‘industrial disease,’’ namely, ‘‘a disease caused by

the conditions or hazards of a particular occupation.’’

Similarly, Webster’s Third New International Dictionary

(1961) pp. 1560–61, defines ‘‘[o]ccupational disease’’ as

‘‘an illness caused by factors arising from one’s occupation <dermatitis is often an occupational disease>

. . . .’’16 (Emphasis in original.)

Contemporaneous legal dictionaries contain similar

general definitions of the term ‘‘occupational disease,’’17

along with specifically indicating the existence of a

relationship between occupational diseases, as previously defined, and workers’ compensation statutory

schemes. Notably, the fifth edition of Black’s Law Dictionary, published in 1979 and relied on heavily by Vanderbilt, defines ‘‘[o]ccupational disease’’ as ‘‘[a] disease

(as black lung disease incurred by miners) resulting

from exposure during employment to conditions or substances detrimental to health. Compensation for such

is provided by state [workers’] compensation acts and

such federal acts as the Black Lung Benefits Act.

Impairment of health not caused by accident but by

exposure to conditions arising out of or in the course

of one’s employment.’’ (Emphasis added.) Black’s Law

Dictionary (5th Ed. 1979) p. 973.

The Black’s Law Dictionary entry then goes on to

explain that a ‘‘disease is compensable under [workers’]

compensation statute as being an ‘occupational’ disease

where: (1) the disease is contracted in the course of

employment; (2) the disease is peculiar to the claimant’s

employment by its causes and the characteristics of its

manifestation or the conditions of employment result

in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a

greater degree and in a different manner than the public

generally.’’18 Id.; accord Black’s Law Dictionary (10th

Ed. 2014) p. 1248; see also Ricigliano v. Ideal Forging

Corp., supra, 280 Conn. 731–32 (discussing statutory

definitions of ‘‘occupational disease’’ under § 31-275

[15] as consistent with dictionary definitions). Although

the relationship between occupational disease and

workers’ compensation is now a matter of black letter

law, none of the definitions on which Vanderbilt relies—

including the definition in Black’s Law Dictionary—

suggests in any way that the phrase ‘‘occupational disease’’ is a construct devoid of meaning outside the law

of workers’ compensation,19 notwithstanding its obvious significance within that area of the law. Instead, we
read those definitions only to highlight the availability

of workers’ compensation as a common, legal remedy

for claims arising from the underlying condition. Thus,

we disagree with Vanderbilt’s argument in its reply brief

that ‘‘ ‘[o]ccupational [d]isease’ [is] a term of art that

is tied to the employee-employer relationship,’’ thus

meaning that ‘‘no specific reference to employees

needed to be added to the exclusion.’’

Given the lack of any verbiage in commonly used

dictionary definitions expressly limiting the definition

of occupational disease to the workers’ compensation

context,20 it is significant that the text of the occupational disease exclusions does not contain language

expressly limiting their application to the employees of

the insured. In contrast, other exclusions in the relevant

policies, namely, for employer’s liability and workers’

compensation, expressly contain such language.21 This

omission is significant because it indicates that, when

the drafters of the policy desired to limit the application of an exclusion to a certain group of individuals,

they did so. It renders all the more unambiguous the

lack of any such express limitation in the occupational

disease exclusions. See Lexington Ins. Co. v. Lexington

Healthcare Group, Inc., supra, 311 Conn. 54 (‘‘[t]ypically, when different terms are employed within the

same writing, different meanings are intended’’); Buell

Industries, Inc. v. Greater New York Mutual Ins. Co.,

supra, 259 Conn. 539–40 (use of word ‘‘sudden’’ in

‘‘sudden and accidental’’ exception to pollution exclusion was intended to preclude coverage for gradually

occurring pollution, ‘‘so that only a temporally abrupt

release of pollutants would be covered as an exception

to the general pollution exclusion’’).

Indeed, to read the exclusions as urged by Vanderbilt

would require us to add otherwise nonexistent language

specifically limiting their application to Vanderbilt’s

employees, which is contrary to how we interpret contracts, including insurance policies. See Moore v. Continental Casualty Co., 252 Conn. 405, 414, 746 A.2d 1252

(2000) (‘‘We cannot rewrite the insurance policy by

adding semicolons any more than we can by adding

words. If the policy had referred to ‘green vehicles,’

and defined that term as ‘green cars, trucks or motorcycles,’ it is unlikely that there would be a reasonable

dispute about whether blue trucks and red motorcycles

were intended to be included in the definition.’’); see

also Travelers Ins. Co. v. Namerow, 257 Conn. 812, 827,

778 A.2d 168 (2001) (‘‘The language of the policy clearly

does not contain the word ‘motive’ or any other analogous term. Under the language of the policy, the plaintiff

did not need to prove motive as an element of its claim

that the defendants’ loss fell within the [intentional act]

policy exclusion.’’ [Footnote omitted.]), superseded in

part on other grounds, 261 Conn. 784, 807 A.2d 467

(2002); Community Action for Greater Middlesex

County, Inc. v. American Alliance Ins. Co., 254 Conn.
387, 403, 757 A.2d 1074 (2000) (‘‘[t]here is nothing in

the language of the exclusion to indicate that the alleged

abuse or molestation must be sexually motivated or

calculated to arouse the person or persons involved in

the offending conduct; the boys’ nonconsensual grabbing and fondling of [the victim] fall within the plain

meaning of the words ‘abuse’ and ‘molestation’ irrespective of the boys’ subjective state of mind’’); Moore v.

Continental Casualty Co., supra, 415 (rejecting reading

of ‘‘definition of ‘ ‘‘[b]odily [i]njury’’ ’ so as to mean not

merely bodily harm, bodily sickness, and bodily disease,

but also nonbodily sickness and nonbodily disease’’

because ‘‘[t]he definition of ‘ ‘‘[b]odily [i]njury’’ ’ in the

policy does not provide: bodily harm; sickness; or disease’’).

We also disagree with Vanderbilt’s reliance on provisions in the Lloyd’s policy form, including the limits of

liability and special conditions, referring to ‘‘occupational disease sustained by any employee of the

assured,’’ as ‘‘mak[ing] clear that ‘occupational disease’

is a type of claim that only applies to Vanderbilt’s

employees and is distinct from a ‘product liability’

claim, with separate policy limits.’’22 In the absence of

a specific definition of the term ‘‘occupational disease’’

to that effect in the policy’s definitions section, it is

significant that the occupational disease exclusions at

issue in this appeal are provided via endorsement,

which, like a ‘‘rider . . . is a writing added or attached

to a policy or certificate of insurance which expands

or restricts its benefits or excludes certain conditions

from coverage. . . . When properly incorporated into

the policy, the policy and the rider or endorsement

together constitute the contract of insurance, and are

to be read together to determine the contract actually

intended by the parties.’’ (Internal quotation marks

omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 806; see also, e.g., Lexington Ins. Co. v. Lexington Healthcare Group, Inc., supra,

311 Conn. 55–56. If, however, ‘‘the endorsement itself is

clear and unambiguous, the content of the form policies

themselves is irrelevant . . . because [e]ndorsement

has also been defined generally to mean [a] written

or printed form attached to the policy which alters

provisions of the contract, and the word alter is synonymous with change.’’ (Internal quotation marks omitted.)

Liberty Mutual Ins. Co. v. Lone Star Industries, Inc.,

supra, 806; see id., 806–807 (concluding that summary

judgment was proper, even when insurer failed to supply policy provisions beyond clear and unambiguous

endorsements, because ‘‘[e]ven a policy provision that

contradicts directly the terms of the endorsement is

irrelevant to the disposition of the summary judgment

motion’’). Thus, even reading the Lloyd’s provisions in

harmony, the fact that the occupational disease exclusion lacks the language confining its application to

Vanderbilt’s employees, as found elsewhere in the
Lloyd’s policy, confirms further that such language was

not intended to exist in the exclusion.

Although the occupational disease exclusion uses the

term ‘‘occupational disease’’ broadly and without qualification, ‘‘[t]he breadth of this exclusion does not render

it any less clear and unambiguous . . . .’’ Id., 800; see

id., 799–800 (concluding that silicon exclusion defining

‘‘ ‘silicon’ ’’ as ‘‘ ‘the mineral in any form,’ ’’ excluded

silicosis and silica related hazards that ‘‘cannot exist in

the absence of [the element] silicon’’); Peerless Ins. Co.

v. Gonzalez, 241 Conn. 476, 483, 697 A.2d 680 (1997)

(‘‘Because there is no requirement that a policy exclusion be cast in specific, rather than general, terms, the

fact that the policy’s lead exclusion contains no express

reference to lead paint does not support [the insured’s]

contention that lead paint falls outside the purview of

the exclusion. The relevant inquiry is not whether the

policy issued by [the insurer] expressly excludes lead

paint from its coverage but, rather, whether the language of the exclusionary provision nevertheless clearly

and unambiguously applies to lead paint.’’).

We also acknowledge Vanderbilt’s argument that

the occupational disease exclusion should not be read

in a way that renders the liability coverage provided by

the policy meaningless. Although this argument is at

first pass tempting, as noted by the Appellate Court;

see R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn. App. 258 n.92; Vanderbilt’s

argument is undercut by the stipulation between the

parties that, for purposes of litigating the application of the occupational disease exclusion, (1) ‘‘[n]one

of the plaintiffs in any of the underlying actions

allege[s] that [he or she is] or ever [was a] Vanderbilt

[employee],’’ and (2) ‘‘[t]he underlying actions can be

classified into three categories, based on the alleged

exposure of the underlying plaintiff to Vanderbilt products,’’ specifically ‘‘Category A—alleged exposure is

claimed solely through workplace exposure,’’ ‘‘Category B—alleged exposure is claimed through a combination of workplace exposure and exposure outside of

the workplace,’’ and ‘‘Category C—alleged exposure is

claimed solely through exposure outside of the workplace.’’ The stipulation provides citations to multiple

exemplar cases under each category. The existence of

categories B and C indicates that the Appellate Court’s

reading of the plain language of the occupational disease exclusion does not completely vitiate the coverage

provided by the policy. Indeed, even a significant exclusion limiting available coverage does not mean that the

insured did not get the coverage for which it bargained,

or that the ‘‘insurance policies . . . are rendered meaningless by virtue of the denial of coverage . . . .’’

Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 270–71, 819 A.2d 773 (2003);

see id. (no evidence that absolute pollution exclusion

rendered policies ‘‘meaningless’’ given that they ‘‘pro-
vide coverage for a wide variety of accidents and

mishaps . . . that may occur during [the plaintiff’s routine business activities]’’ [internal quotation marks

omitted]).

Finally, the case law cited by the parties, none of

which interprets an occupational disease exclusion,

simply bears out that an occupational disease may be

compensable on the first-party basis by an affected

employee’s workers’ compensation employer, or on a

third-party basis by another tortfeasor—like Vanderbilt.23 In particular, we disagree with Vanderbilt’s reliance on the decision of the Maryland Court of Special

Appeals in Commercial Union Ins. Co. v. Porter Hayden Co., supra, 116 Md. App. 605, for the proposition that ‘‘the phrase ‘occupational disease’ cannot be

interpreted outside of the employer-employee context

without creating ambiguity.’’ In that case, the court

rejected an insurer’s argument that a general liability

policy that covered only ‘‘ ‘accidents’ ’’ did not cover

claims of asbestos related diseases resulting from workplace exposure. Id., 697; see id., 701 (concluding that

inhalation of asbestos fibers ‘‘is indisputably a personal

bodily injury whether or not it is also an occupational

disease,’’ thus triggering coverage because, even ‘‘if

‘occurrence’ and ‘accident’ are not precise synonyms,

they are nonetheless largely overlapping terms and they

include ‘continuous or repeated exposure to conditions

which result in bodily injury’ ’’). The Maryland court

distinguished the insurer’s reliance on cases that have

‘‘treated ‘occupational diseases,’ on the one hand, and

‘personal bodily injuries caused by accident,’ on the

other hand, as mutually exclusive categories,’’ as ‘‘taken

from the very special and statutory world of [w]orkers’

[c]ompensation law. It is a body of law that is not concerned with fault or liability coverage based on fault;

it is concerned with whether certain forms of disability

were [job related]. Although [job related] injury and

[job related] disease are slowly evolving toward a single

compensable phenomenon, their respective histories

have been widely divergent. That divergence has produced a number of linguistic anomalies that are peculiar

to [w]orkers’ [c]ompensation law.’’ Id., 697–98. We disagree with Vanderbilt’s reliance on Commercial Union

Ins. Co. because that case does not interpret an occupational disease exclusion or explain why commonly

used definitions of the term ‘‘occupational disease’’ are

inherently ambiguous. Indeed, the Maryland court

emphasized that, ‘‘[e]ven if ‘occupational disease’ and

‘personal bodily injury as a result of an accident’ are

mutually exclusive terms in [w]orkers’ [c]ompensation

law, that mutual exclusivity by no means carries over

into general tort law.’’24 (Emphasis added.) Id., 701.

Given the clear and unambiguous meaning of the

term ‘‘occupational disease,’’25 we conclude that the

Appellate Court properly construed the occupational

disease exclusions to ‘‘bar coverage for occupational
disease claims brought not only by employees of Vanderbilt but also by individuals who contracted an occupational disease in the course of their work for other

employers.’’ R.T. Vanderbilt Co. v. Hartford Accident &

Indemnity Co., supra, 171 Conn. App. 269–70. The

Appellate Court, therefore, properly reversed the decision of the trial court, which had adopted a reading of

the occupational disease exclusions to the contrary.26

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1

‘‘The action was filed by R.T. Vanderbilt Company, Inc. During the trial

court proceedings, the court granted that company’s motion to substitute

its successor, Vanderbilt Minerals, LLC, as the . . . plaintiff. For convenience, we refer to both entities as ‘Vanderbilt’ throughout this opinion.’’

R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App.

61, 75 n.1, 156 A.3d 539 (2017).

2 The insurer defendants that are the appellants in Docket No. SC 20000

are Travelers Casualty and Surety Company, formerly known as Aetna Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company.

The insurer defendants that are the appellants in Docket No. SC 20001

are Mt. McKinley Insurance Company and Everest Reinsurance Company,

with Clearwater Insurance Company and later TIG Insurance Company

subsequently substituted for Mt. McKinley, along with Pacific Employers

Insurance Company, Century Indemnity Company, Ace Property and Casualty Insurance Company, Old Republic Insurance Company, Certain Underwriters at Lloyd’s, London, Certain London Market Insurance Companies,

American International Underwriters Insurance Company, Granite State

Insurance Company, Fireman’s Fund Insurance Company, American Insurance Company, Westport Insurance Corporation, National Casualty Company, Employers Mutual Casualty Company, Munich Reinsurance America,

Inc., and Zurich International (Bermuda) Limited.

The insurer defendants that are the appellees in Docket No. SC 20003 are

National Casualty Company, Pacific Employers Insurance Company, Certain

Underwriters at Lloyd’s, London, and Certain London Market Insurance

Companies, Zurich Reinsurance Company Limited, Everest Reinsurance

Company, Westport Insurance Corporation, and Fireman’s Fund Insurance

Company. We refer to the insurer defendants individually when appropriate.

For the history of the direct and third-party claims against the various

insurer defendants, see R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61, 76–78, 156 A.3d 539 (2017).

3 We granted the petition of Travelers Casualty and Surety Company and

St. Paul Fire and Marine Insurance Company for certification to appeal,

limited to the following issues: ‘‘1. Did the Appellate Court properly affirm

the trial court’s adoption of a ‘continuous trigger’ theory of coverage for

asbestos related disease claims as a matter of law and the trial court’s

related preclusion of expert testimony on current medical science regarding

the actual timing of bodily injury from such disease?

‘‘2. Did the Appellate Court properly affirm the trial court’s adoption of

an ‘unavailability of insurance’ exception to the ‘time on the risk’ rule of

contract law, which provides for pro rata allocation of defense costs and

indemnity for asbestos related disease claims?’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 327 Conn. 923, 171 A.3d 63 (2017).

We also granted the petition of Mt. McKinley Insurance Company and

Everest Reinsurance Company, limited to the following issues: ‘‘1. Did the

Appellate Court properly affirm the trial court’s adoption of a ‘continuous

trigger’ theory of coverage for asbestos related disease claims as a matter

of law and the trial court’s related preclusion of expert testimony on current

medical science regarding the actual timing of bodily injury from such

disease?

‘‘2. Did the Appellate Court properly affirm the trial court’s adoption of

an ‘unavailability of insurance’ exception to the ‘time on the risk’ rule of

contract law, which provides for pro rata allocation of defense costs and

indemnity for asbestos related disease claims?

‘‘3. Did the Appellate Court properly interpret pollution exclusion clauses

in certain insurance policies as applicable only to claims arising from ‘traditional’ environmental pollution and not to those arising from asbestos exposure in indoor working environments?’’ R.T. Vanderbilt Co. v. Hartford

Accident & Indemnity Co., 327 Conn. 923, 923–24, 171 A.3d 62 (2017).

Finally, we also granted Vanderbilt’s cross petition for certification to

appeal, limited to the following issue: ‘‘Did the Appellate Court properly

interpret occupational disease exclusion clauses in certain insurance poli-
cies as precluding coverage for claims of occupational disease, regardless

of whether the claimant was employed by the policyholder or by a thirdparty user of the claimant’s allegedly harmful product?’’ R.T. Vanderbilt Co.

v. Hartford Accident & Indemnity Co., 327 Conn. 925, 171 A.3d 61 (2017).

4 For the sake of brevity, we recite only the most salient background facts

and procedural history, as distilled from the record and the Appellate Court’s

opinion. Readers desiring a more comprehensive review of this case’s complex facts and procedural history should consult the excellent recitation in

the Appellate Court’s opinion. See R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn. App. 76–87.

5 As the Appellate Court noted, the ‘‘ ‘phrase ‘‘follow form’’ refers to the

practice, common in excess policies, of having the [second layer] coverage

follow substantively the primary layer provided by the main insurer . . . .’ ’’

R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn.

App. 257 n.91.

As the Appellate Court also noted, ‘‘the term ‘umbrella coverage’ is often

used not only with reference to policies that offer both excess coverage

and primary drop-down insurance, but also specifically to the drop-down

portion of such policies.’’ Id., 276 n.101.

6

‘‘Throughout this opinion, we use the terms ‘long latency,’ ‘long-tail,’ and

‘progressive injury’ interchangeably. Those terms refer to the fact that toxic

tort claims typically allege that exposure to toxins such as asbestos causes

a series of continuing, indivisible injuries that develop gradually over time

but may not manifest for many years.’’ R.T. Vanderbilt Co. v. Hartford

Accident & Indemnity Co., supra, 171 Conn. App. 78 n.5.

7 For those specific findings, see R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn. App. 80–82.

8 See R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra,

171 Conn. App. 187 n.54 (noting immaterial miscalculation with respect to

length of allocation block).

9

‘‘Everest [Reinsurance Company] filed an immediate appeal from the

trial court’s Phase I and Phase II rulings on the ground that the rulings

constituted a final judgment as to it. Vanderbilt and other defendants were

subsequently granted permission to file interlocutory appeals pursuant to

Practice Book § 61-4 (a), which provides in relevant part that an interlocutory

ruling is considered to be an appealable final judgment when ‘the trial court

makes a written determination that the issues resolved by the judgment are

of such significance to the determination of the outcome of the case that

the delay incident to the appeal would be justified, and the chief justice

or chief judge of the court having appellate jurisdiction concurs.’ ’’ R.T.

Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn.

App. 83–84 n.9.

10 For a summary of all of the issues considered by the Appellate Court,

see R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171

Conn. App. 84–87.

11 For a listing of these secondary insurers, see footnote 2 of this opinion.

12 ‘‘The trial court found that the minor variations in policy language

between the two versions are not relevant to the question of whether the

occupational disease exclusions apply to nonemployees of the policyholder.

On appeal, the parties do not challenge this finding or argue that the two

provisions are materially different.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn. App. 256 n.90.

13 See footnote 5 of this opinion.

14 ‘‘For this reason, [the Appellate Court] reject[ed] Vanderbilt’s argument

that the [insurer] defendants’ interpretation of the occupational disease

exclusions would render much of the coverage afforded by the policies

‘illusory.’ At the very least, the exclusions would not bar coverage for claims

brought by complainants in category 3.

‘‘[The Appellate Court] note[d] in this respect that the parties . . . neither

briefed nor asked [it] to resolve the question of whether, if the occupational

disease exclusions do apply to nonemployees, they bar coverage for underlying actions in category 2, which allege both workplace and nonworkplace

exposure. That question will fall to the trial court on remand to address in

the first instance.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity

Co., supra, 171 Conn. App. 258 n.92.

15 On this point, the Appellate Court relied on, inter alia, a Harvard Law

Review note, ‘‘Compensating Victims of Occupational Disease,’’ 93 Harv. L.

Rev. 916, 926 (1980), in support of the proposition that, at the time, there

was a ‘‘proliferation’’ of litigation concerning occupational diseases, in which

individuals barred by workers’ compensation laws from ‘‘suing their employers were instead ‘su[ing] the manufacturer or seller of a product used in

the workplace if that product caused the illness.’ ’’ R.T. Vanderbilt Co. v.
Hartford Accident & Indemnity Co., supra, 171 Conn. App. 264. But see

footnote 25 of this opinion.

16 We note that the dictionary definition of ‘‘occupational disease’’ has

remained consistent in all material aspects for many decades, both preceding

and succeeding the drafting of the policy provisions at issue in this appeal.

Compare American Heritage College Dictionary (4th Ed. 2007) p. 961 (defining ‘‘occupational disease’’ as ‘‘[a] disease resulting from the conditions of

a person’s work, trade, or occupation’’), with Webster’s New International

Dictionary (2d Ed. 1934) p. 1684 (defining ‘‘occupational disease’’ as ‘‘[a]

disease brought on by or arising from the occupation of the patient, as

miner’s phthisis, etc.’’).

17 Legal dictionary definitions are also relevant to our textual analysis of

the policy provisions at issue. See, e.g., Lexington Ins. Co. v. Lexington

Healthcare Group, Inc., supra, 311 Conn. 42–43 (considering conventional

and legal dictionary definitions of term ‘‘related’’ in insurance policy);

Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, 247

Conn. 801, 810–11, 724 A.2d 1117 (1999) (considering conventional and

Black’s Law Dictionary definition of term ‘‘publication’’ to determine

whether underlying claims constituted slander covered by commercial general liability policy).

18 We note that the immediately preceding edition of Black’s Law Dictionary defined ‘‘occupational disease’’ more generally—akin to the ordinary

language dictionaries—as a ‘‘[d]isease gradually contracted in usual and

ordinary course of employment, because thereof, and incidental thereto.’’

Black’s Law Dictionary (4th Ed. 1968) p. 1230; see also Ballentine’s Law

Dictionary (3d Ed. 1969) p. 879 (‘‘Occupational disease’’ is ‘‘[a] disease which

develops gradually and imperceptibly as a result of engaging in a particular

employment and is generally known and understood to be a usual and

natural incident or hazard of such employment. . . . A disease caused by

or especially incident to a particular employment. . . . Something other

than an accidental injury. But none the less a personal injury, the injury

being regarded as sustained when the employee becomes unable to work.’’

[Citations omitted; emphasis added.]).

19 In a footnote in its brief, Vanderbilt crafts a hypothetical to contend that

‘‘[a]pplying ‘occupational disease’ outside of the context of claims brought

against Vanderbilt by its employees leads to absurd results,’’ namely, a high

school student alleging exposure to talc while working part-time at a family

business or a babysitter alleging exposure to talc in the home where he or

she is babysitting. Vanderbilt states that the ‘‘insurers would argue that the

students were ‘working’ when they were allegedly exposed to talc and,

therefore, [that] the ‘occupational disease’ exclusions bar coverage.’’ We

disagree that this hypothetical is illustrative of an absurd result, even under

the Black’s Law Dictionary definition propounded by Vanderbilt. Although

the hypothetical babysitter’s disease might well have been contracted during

his or her employment, that fact does not, without more, render it occupational in nature. See Black’s Law Dictionary (5th Ed. 1979) p. 973; see, e.g.,

2 M. Rothstein et al., Employment Law (6th Ed. 2019) § 7:24 (‘‘[a]n ailment

does not become an occupational disease simply because it is contracted

on the employer’s premises’’ [internal quotation marks omitted]). Put differently, in determining whether the disease in the hypothetical argued by

Vanderbilt is occupational in nature, the babysitter performing ordinary

child care tasks might well be situated differently from the other student

in the hypothetical who works at a family business, if that family business

is an industry that had peculiar incidence of diseases occasioned by exposure

to talc.

20 Indeed, this court previously has rejected attempts to import other

areas of the law to vary otherwise clear and unambiguous insurance policy

language. In concluding that ‘‘emotional distress’’ was not ‘‘bodily injury’’

for purposes of an insurance policy, this court rejected the argument that

‘‘emotional distress is within the insurance policy definition of bodily injury

because modern medical science teaches that emotional distress is accompanied by some physical manifestations,’’ as well as that ‘‘such an interpretation

is consistent with our precedents in the areas of tort and workers’ compensation law.’’ Moore v. Continental Casualty Co., 252 Conn. 405, 414, 746

A.2d 1252 (2000). Stating that we did ‘‘not question the modern medical

understanding of the interrelatedness of the mind and body,’’ this court

nevertheless ‘‘disagree[d] that such an understanding determines the meaning of the policy language in question in the present case. We also disagree[d]

with the contention that our precedents in the areas of tort and workers’

compensation law appropriately inform the meaning of that policy language.’’

Id., 414–15.

21 The Pacific policy provides that it ‘‘does not apply . . . to any obligation

for which the [i]nsured or any carrier as his insurer may be held liable under
any workmen’s compensation, unemployment compensation or disability

benefits law, or under any similar law . . . .’’ A separate rider to the Pacific

policy states that ‘‘[t]his policy does not apply to personal injury to any

employee of the insured arising out of and in the course of his employment

by the insured or to any obligation of the insured to indemnify another

because of damages arising out of such injury.’’

The Lloyd’s policy provides that it ‘‘shall not apply . . . to any obligation

for which the [a]ssured and any company as its insurer may be held liable

under any [w]orkmen’s [c]ompensation, unemployment compensation or

disability benefits law provided, however, that this exclusion does not apply

to liability of others assumed by the [n]amed [a]ssured under contract or

agreement . . . .’’

22 As Vanderbilt notes, similar references to ‘‘occupational disease’’ are

not found in the 1985 Pacific policy form.

23 Indeed, Connecticut’s workers’ compensation statutory scheme contemplates third parties being held liable in tort for injuries that are compensable

under the act, including occupational diseases; see General Statutes § 31-

275 (15); by providing an employer the right to intervene in an action brought

by its employee against a third-party tortfeasor, in order to recover the

benefits paid. See General Statutes § 31-293 (a); Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 164–65, 716 A.2d 71 (1998). Put differently,

the exclusivity of the workers’ compensation remedy under statutes such

as General Statutes § 31-284 is between the employee and the employer.

See, e.g., Hernandez v. Cavaliere Custom Homes, Inc., 511 F. Supp. 2d 221,

226 (D. Conn. 2007); Mello v. Big Y Foods, Inc., 265 Conn. 21, 25–26, 826 A.2d

1117 (2003); Ferryman v. Groton, 212 Conn. 138, 146, 561 A.2d 432 (1989).

24 We also disagree with Vanderbilt’s reliance on Nolan v. Johns-Manville

Asbestos & Magnesia Materials Co., supra, 74 Ill. App. 3d 778, for the

proposition that ‘‘the phrase ‘occupational disease’ related only to workmen’s compensation . . . .’’ In that product liability case, the court followed

its workers’ compensation case law and adopted the discovery rule to govern

the running of the statute of limitations. Id., 788. Vanderbilt relies on the

following observation in Nolan: ‘‘We are thoroughly cognizant of the distinctions between the present case and an occupational disease case seeking

statutory compensation such as Madison [v. Wedron Silica Co., 352 Ill. 60,

184 N.E. 901 (1933)]; however, the analysis drawn by the [Illinois Supreme

Court] is useful in a case such as this, [in which] the disease of asbestosis

according to expert testimony, can develop over a period of ten to twentyfive years, even though the action pursued here is for [product] liability

rather than workmen’s compensation.’’ Nolan v. Johns-Manville Asbestos &

Magnesia Materials Co., supra, 788. Again, nothing in the cited portions of

Nolan supports the proposition that occupational disease is a concept that

is linguistically meaningless beyond the workers’ compensation context;

instead, they support the opposite proposition, namely, that the term has

applicability in a variety of legal settings. Nor does Nolan describe specifically any applicable ‘‘distinctions’’ between workers’ compensation and the

common law.

We similarly disagree with Vanderbilt’s reliance on Ins. Co. of North

America v. Forty-Eight Insulations, Inc., supra, 451 F. Supp. 1230. In that

insurance coverage case, the court declined to apply a manifestation trigger

for the underlying product liability claim, deeming the common-law contracts principles distinguishable from the statutory ‘‘last employer’’ rule that

governs coverage for workers’ compensation claims. Id., 1240–41. Again,

this case does nothing to elucidate the meaning of the occupational disease

exclusion, with the court’s failure to refer to the underlying claims as ‘‘occupational diseases’’ both unexplained, and in our view, purely incidental.

Similarly, the court does not state in any way that occupational disease is

a phrase with a distinct meaning in the context of workers’ compensation,

as opposed to the common law.

The cases cited by National Casualty similarly do not interpret an occupational disease exclusion, and stand only for the proposition that a claim

arising from an occupational disease may exist independently of a workers’

compensation claim. See TKK USA, Inc. v. Safety National Casualty Corp.,

supra, 727 F.3d 788–90 (common-law claim against employer for negligence

is covered under employer’s liability coverage, even if underlying claim

is statutorily barred by state occupational disease compensation statute,

because of gaps in statute, and ‘‘covered loss’’ would include defense of

even groundless claim); Rodriguez v. E.D. Construction, Inc., supra, 126

Conn. App. 728 (independent contractor was excluded from participation

in workers’ compensation system); Wyness v. Armstrong World Industries,

Inc., supra, 171 Ill. App. 3d 677 (surviving spouse of insulator who died

from asbestos related lung cancer brought wrongful death action against

manufacturers of insulation); Tooey v. AK Steel Corp., supra, 623 Pa. 82

(exclusivity provision of workers’ compensation act did not bar commonlaw action by employee against employer when occupational disease claim

manifested beyond act’s limitation period); United National Ins. Co. v. J.H.
France Refractories Co., supra, 36 Pa. D. & C.4th 409–10 (manufacturer

fraudulently procured commercial general liability insurance despite knowledge of pending third-party product liability claims against it arising from

asbestosis injuries).

25 Vanderbilt’s criticism of the Appellate Court’s reliance on two law review

articles and an American Bar Association report to elucidate the apparent

purpose of the occupational disease exclusions, as well as the apparent

‘‘mutual understanding’’ of the parties with respect to the policies at issue,

is, however, well taken. See R.T. Vanderbilt Co. v. Hartford Accident &

Indemnity Co., supra, 171 Conn. App. 264 and n.95, citing W. Viscusi, ‘‘Structuring an Effective Occupational Disease Policy: Victim Compensation and

Risk Regulation,’’ 2 Yale J. on Reg. 53, 65 (1984); Note, ‘‘Compensating

Victims of Occupational Disease,’’ 93 Harv. L. Rev. 916, 926 (1980); American

Bar Association, ABA Blueprint for Improving the Civil Justice System:

Report of the ABA Working Group on Civil Justice System Proposals (1992)

p. 53. As Vanderbilt notes, the law review articles both were published after

the Lloyd’s policy was issued, and the American Bar Association report was

published after both policies were issued, and, thus, neither could have had

affected the parties’ intent. Moreover, given the plain and unambiguous

language of the occupational disease exclusions, it simply was unnecessary

to consider ‘‘legal scholarship from that era’’ in support of the conclusion

that ‘‘the insurance industry was concerned over the emerging proliferation

of private litigation by workers who, having developed long latency diseases

after exposure to asbestos and other alleged industrial toxins, sought to

circumvent the workers’ compensation system and sue manufacturers of

those products.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity

Co., supra, 265–66. Indeed, this extratextual focus on the intent of the

insurers runs counter to our well established approach of interpreting insurance policies, which focuses on how the language would be viewed by the

layman, or policyholder. See, e.g., Nationwide Mutual Ins. Co. v. Pasiak,

supra, 327 Conn. 238–39.

26 As Vanderbilt acknowledges, whether the insurers waived their right to

invoke the occupational disease exclusions via a reservation of rights or

failing to plead it as a special defense in this action is a question reserved

for the next phase of this complex litigation. Accordingly, we agree with

the Appellate Court’s direction to the trial court to ‘‘consider Vanderbilt’s

alternative argument that certain defendants are precluded from invoking

the exclusions because they failed to timely plead the exclusions as a special

defense.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity. Co., supra,

171 Conn. App. 270.