IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GENERAL REFRACTORIES COMPANY : CIVIL ACTION

:

v. :

:

FIRST STATE INSURANCE CO., et al. : No. 04-3509

(Lexington Insurance Company and :

AIU Insurance Company) :

MEMORANDUM

Ludwig, J. January 27, 2012

Plaintiff General Refractories Company (GRC) and defendants Lexington Insurance

Company and AIU insurance Company cross-move for partial summary judgment (doc. nos.

315, 360, 361 (sealed)). Fed. R. Civ. P. 56. Jurisdiction is diversity. 28 U.S.C. § 1332.

In 2004, plaintiff GRC sued itsinsurance carriersfor a declaration of excess insurance

coverage against asbestos-related claims. A manufacturer and supplier of asbestoscontaining products, GRC is a defendant in numerous asbestos-related suits throughout the

United States. Two of the insurance carriers are defendants Lexington and AIU.

As to each of these defendants, GRC moved for partial summary judgment (doc. nos.

277 and 278, respectively), because their policies of insurance did not contain an exclusion

for asbestos products liability. Those motions were granted. (Orders and mem., June 20,

2011, doc. nos. 318-320.) Before those motions were ruled on, Lexington and AIU were

permitted to amend their joint answer to add counterclaims for reformation and rescission

of the policies. (Order, Mar. 24, 2011, doc. no. 304; Counterclaims, doc. no. 284 at 29-37.)

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On June 8, 2011, GRC again moved for partial summary judgment, contending that the

counterclaims should be dismissed (doc. no. 315). On September 9, 2011, defendants cross1

moved for partial summary judgment, contending the policies should be reformed to exclude

asbestos- related claims or should be rescinded (doc. no. 360).

None of the policies or a policy endorsement contains an exclusion for claims related

On July 23, 2004, GRC filed the complaint against 16 of its umbrella and excessinsurance carriers, 1

suing for a declaration of insurance coverage against asbestos-related claims and for breach of insurance

contract. On June 3, 2005, five of the insurers originally named as defendants moved to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(7) for failure to join indispensable parties under Federal Rule of

Civil Procedure 19. (Doc. no. 149.) Defendants contended GRC had failed to name all of the insurers which

had provided coverage from 1979 to 1986, and that the absent insurers were indispensable to the action. On

September 27, 2005, the court dismissed the action, ruling that the absent insurers were necessary and

indispensable parties under Rule 19. Gen. Refractories Co. v. First State Ins. Co., 234 F.R.D. 99, 100 (E.D.

Pa. 2005). On October 27, 2005, reconsideration of that ruling was denied. (Orders and mem., doc. nos.

158, 159, 166.) Defendants appealed these two orders. On August 28, 2007, our Court of Appeals reversed

the September 27, 2005 order that dismissed the action for lack of necessary parties and remanded this

action. Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306 (3d Cir. 2007). 

On June 7, 2010, nearly six years after this litigation had commenced, fact discovery closed.

(Orders, Jan. 21, 2010 and Feb. 19, 2008, doc. nos. 239, 199.) During that time, defendants Lexington and

AIU contended that their policies contained exclusions for asbestos products liability. On October 22 and

November 2, 2010, GRC moved for partial summary judgment as to each of these defendants (doc. nos. 277

and 278,respectively), because their policies did not contain such an exclusion. Defendants changed course. 

On November 22, 2010, defendants moved to amend their answer to state counterclaims for reformation and

rescission of their policies, submitting that “no further discovery is required regarding the counterclaims.” 

(Defs. br., doc. no. 284 at 8-9.) They were permitted to amend the answer. (Order, Mar. 24, 2011, doc. no.

304; Counterclaims, doc. no. 284 at 29-37.) GRC’s motions for summary judgment were granted. (Orders

and mem., June 20, 2011, doc. nos. 318-320.) 

On June 8, 2011, before the court had ruled on the summary judgment motions, GRC again moved

for partial summary judgment requesting dismissal of the amended counterclaims. (Doc. no. 315.) On July

11, 2011, defendants’ response to the motion was due. (Order, June 9, 2011, doc. no. 317.) By July 8, 2011

letter, defendants requested and were granted an enlargement of the deadline to July 20, 2011. (Order, July

11, 2011, doc. no. 328.) On July 19, 2011, defendants made their first request for additional discovery to

support the counterclaims, which plaintiff opposed. (July 19, 22, and 29, 2011 letters, doc. nos. 332, 336,

351.) After a conference, defendants were granted limited discovery and were directed to respond to the

motion for summary judgment by September 9, 2011. (Order, Aug. 3, 2011, doc. no. 352.) 

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to asbestos products. Both defendants concede as much, but assert the omission resulted

2

from a series of mistakes by defendants’ underwriters and that the intent of the parties to

include such an exclusion can be shown by extrinsic evidence. (Counterclaims, ¶¶ 9, 16, 23.)

That issue – whether these policiesshould be reformed to include asbestos-related exclusions

– is presented in the pending cross-motions for partial summary judgment on these

defendants’ counterclaims. The issue of whether the policies cover the underlying asbestosrelated claims is not decided. Today’s order holds that reformation or rescission of the

policies is not warranted. Plaintiff’s motion for partial summary judgment will be granted,

the counterclaims will be dismissed, and defendants’ cross-motion will be denied.

Discovery has been completed, and the following facts are not in dispute. From 1982

to 1986, Jennifer Romano of Marsh & McLennan was GRC’s broker for the procurement of

policies. GRC received Romano’s March 30, 1984 letter requesting authorization to

approach umbrella and excess insurance carriers to obtain policies for the August 1, 1984-85

period. On July 2, 1984, Romano submitted GRC’s insurance application to Michael Bruzzi,

vice president of Pacific Starr of New York, a managing general agent with authority to bind

policies for Granite State Insurance Company. In the cover letter, Romano stated: “The

current Umbrella program excludes asbestos and warrants the underlying aggregates will not

be impaired by asbestos. We expect this condition to be duplicated for the 1984-85

For the period, August 1, 1984 to August 1, 1985, the policies at issue are: Lexington issued to 2

GRC policy no. 552 6337. Doctors Aff. 9/9/11, Ex. 31, doc. no. 361. AIU issued to GRC policy no. 75-

103894. Id., Ex. 30. The AIU policy follows form to the Granite State Insurance Company policy no. 6484-

0088 issued to GRC. Id., Ex. 28.

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program.” Doctors Aff. 9/9/11, Ex. 17, doc. no. 361. On July 19, 1984, Bruzzi sent Marsh

a telex of Granite State’s quote for umbrella coverage that stated: “Terms and Conditions:

Exclude all claims arising out of asbestos and no aggregate impairment of asbestos

products.” Id., Ex. 23. An August 1, 1984 binder, prepared on Marsh letterhead and signed

by Bruzzi, stated that Granite State agreed to issue GRC “$5 million excess of various

primaries as submitted . . . Subject to: . . . Exclude claims arising out of asbestos; and

warrant U/L aggregate not exhausted by asbestos.” Id., Ex. 24.

Marsh also approached Lexington and AIU, which agreed to issue excess coverage

for the August 1, 1984-85 period. Two binders were prepared on Marsh’s letterhead and

dated August 1, 1984 – one signed by Didi Devane on behalf of Lexington and the other

signed by Albertha Garrett on behalf of AIU. Each binder stated: “Subject to: Following

all wordings and coverages of first layer Umbrella with Granite State Ins. Co., including but

not limited to: . . . Exclude asbestos and warrant U/L aggregate not exhausted by aggregate.”

Doctors Aff. 9/9/11, Ex. 24. Romano testified that someone else was responsible for

preparing the binders and it was “possible that information [contained in the binder] was

provided by the carrier.” Romano dep. 278:15-279:6, Nov. 11, 2009, Conley Aff. 9/23/11,

Ex. Q, doc. no. 372-1.

By letter of August 23, 1984, Marsh forwarded these binders, along with binders for

the other four excess liability carriers on the risk during the 1984-85 period, to GRC’s vice

3

The other excess carriers were: International Insurance Company, Republic Insurance Company, 3

First State Insurance Company, and Harbor Insurance Company. 

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president, Joseph Mulvaney, who was responsible for the placement of general liability

insurance. GRC received the binders. The letter covering the binders stated: “These will

provide evidence of coverage until you receive the actual policies.” Doctors Aff. 9/9/11, Ex.

24. The Lexington and AIU binders also stated: “Please notify the undersigned immediately

of changes, if any, you wish to make in the above arrangements; otherwise, completing

documents or premium statement will be prepared and sent to you.” Id. Before Lexington

issued its policy, Warren Berm of Midtown Risk Specialists, Inc., a broker involved in the

underwriting of that policy, issued on August 4, 1984 a “Cover Note” that stated:

This cover note is based on cable and/or mail and/or telephone advices from

the above insurer(s) [Lexington] and is subject to policy conditions, when, as

and if issued and is issued by the undersigned without any liability whatsoever

as insurer, being solely for the convenience of the insured and is to be

automatically cancelled and superceded by the policy upon issuance.

Id., Ex. 27. The record does not reflect any objections to the binders.

AIU issued its policy on August 6, 1984, but the policy did not specify an underlying

umbrella policy. The single page policy included preprinted follow-form language:

The company agrees with the Insured named below, in consideration of the

premium paid and subject to all the terms and conditions set forth below of

Policy No. TBA issued by including all renewals and rewrites thereof.

Doctors Aff. 9/9/11, Ex. 30. On September 4, 1984, Lexington issued its policy. The policy

referenced an underlying umbrella policy issued by “Century Indemnity” with the policy

number to be advised, “TBA.” Id., Ex. 31. The Lexington and AIU policies did not contain

asbestos products liability exclusions. On September 10, 1984, Granite State issued its

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policy, which was sent to Marsh on September 24, 1984. Id., Ex. 28. That policy also did

not contain an asbestos products liability exclusion. According to the record, none of the

carriers, brokers, or agents took any action to endorse the policies with such an exclusion.

On May 2, 1985, Romano forwarded the Granite State, Lexington, and AIU policies

to GRC, which GRC received. In the cover letter, Romano stated she had found

“discrepancies” in the policies, including: “As you are well aware, asbestos is not covered

in the Umbrella program, but Granite State omitted their exclusion.” Doctors Aff. 9/9/11,

Ex. 32. In regard to the AIU policy, Romano stated: “Should mention lead Umbrella

carrier.” Id. In regard to the Lexington policy, Romano stated: “Needs following form

endorsement” and “[s]hows wrong underlying Umbrella carrier.” Id. In a separate letter of

May 2, 1985 to Granite State’s underwriter, Bruzzi, Jennifer Romano wrote:

An asbestos exclusion was critical to our negotiations, but your policy does not

exclude it. We suggest this wording: ‘This policy does not apply to any

damages or expenses [from claims] arising out of the manufacture,

distribution, or handling of asbestos or asbestos components of other products.

It is further agreed that the underlying insurance limits cannot be impaired by

such damages arising out of asbestos.’

Id., 33 (Romano handwrote “from claims” on the letter). Bruzzi received the letter.

The record does not establish whether Romano, when she wrote the letter to Bruzzi,

was acting as a broker for GRC. Romano testified: “I really don’t have much memory

working on the [GRC] account.” Romano dep. 54:8-11, Nov. 11, 2009, Doctors Aff. 9/9/11,

Ex. 14. She did not recall working with Bruzzi on the GRC account. She did not remember

the letter at all and was “not sure that this was me necessarily proposing the language.” Id.

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153:4-10, 155:3-156:12, 157:12-19, 158:23-159:6, 160:20-163:17, 171:2-17. She had no

recollection of the insurance transaction or the negotiations leading up to the Granite State

binder. Id. 174:23-175:11, 176:14-19. Romano could not “recall whether the Granite State

policy was modified or amended or in any which way changed as a result of our letter of May

2, 1985.” Id. 172:18-22. The record does not reflect that Bruzzi responded to Romano or

any conversations or negotiations with Granite State after the May 2, 1985 letter. No

amendment appears to have been made to the Granite State policy.

There is no testimony offering firsthand, personal knowledge about the negotiations,

underwriting, binding, or clerical compilation of the policies issued for the 1984-85 period:

Barry Katz, GRC’s Rule 30(b)(6) witness, testified to discussions concerning an

asbestos exclusion in the Granite State policy: “I wasn’t involved in those negotiations nor

have I been able to find any facts relating what went on during those negotiations.” Katz

dep. 439:17-23, Apr. 20, 2010, Doctors Aff. 9/9/11, Ex. 6. Katz testified that “GRC does not

have any independent facts as to what was involved in the original negotiations” and “what

took place.” Id. 426:14-427:15; see also Katz dep. 1673:8-13, 1675:19-1676:5, 1681:6-23,

May 21, 2010, Doctors Aff. 9/9/11, Ex. 8.

Joseph Mulvaney testified that he did not remember whether asbestos was covered.

Mulvaney dep. 137:4-14, Nov. 12, 2009, Doctors Aff. 9/9/11, Ex. 3. Mulvaney could not

recall any discussions with Marsh during 1982-86. Id. 55:3-13.

Bruzzi, Granite State’s Rule 30(b)(6) witness regarding underwriting, testified that

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he did not “remember being involved in any way in the sale of the policies” to GRC. Bruzzi

dep. 66:11-15, June 29, 2010, Conley Aff. 9/23/11, Ex. H; Bruzzi dep. 31:3-5, 31:22-25,

32:3-7, 42:5-10, June 29, 2010, Doctor’s 9/9/11, Ex. 19. When asked to assume an asbestos

exclusion should have been part of the Granite State policy, Bruzzi testified that the omission

“had to be a clerical error somewhere in the process of issuing the policy.” Id. 43:512. He

had no personal knowledge of any error and offered no other reason for the omission.

John Gibson, Lexington’s Rule 30(b)(6) witnessregarding underwriting, testified that

he stopped working for Lexington in 1982. He offered no testimony from personal

knowledge about the 1984-85 insurance transaction or the underwriting of the Lexington

policy. He offered numerous opinions concerning Lexington’s intent not to insure asbestos

risks and its underwriting policies, practices, and procedures in general. However, he was

unable to state facts in support of those opinions. Gibson dep. 7:13-15, Oct. 14, 2009,

Doctors Aff. 9/9/11, Ex. 25.

Paul Sanchez, AIU’s Rule 30(b)(6) witness regarding underwriting, testified that he

did not work for AIU in 1984-85. He did not know what AIU’s underwriting procedures or

policies were during that time. Sanchez dep. 35:16-36:4, Jan. 20, 2010, Conley Aff. 9/23/11,

Ex. E. He had no involvement with AIU. Sanchez. dep. 33:5-12, 34:12-17, 35:16-23, Jan.

20, 2010, Doctors Aff. 9/9/11, Ex. 12.

Defendants maintain that the policies should be reformed in order to carry out the

intent and agreement of the parties to exclude any claims related to asbestos. Defendants

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submit that the omission of such an exclusion was due to a “fundamental mistake” – an

“erroneous belief shared by GRC, Lexington and AIU” – that the Granite State policy

contained an asbestos exclusion endorsement. Defs. sur-reply br., doc. no 387 at 2.

Defendants formulate this question somewhat differently in their counterclaims, stating that

the Granite State, Lexington, and AIU policies each “inadvertently failed to include its own

endorsement excluding coverage for claims arising out of exposure to asbestos,” and the

Lexington and AIU policies “not only followed form to, but also relied on” the Granite State

policy. Counterclaims, ¶¶ 9, 16, 23.

An insurance contract may be reformed to correspond to the understanding of the

parties where the mistake is mutual between the parties. Recent authority for this well known

principle does not exist. What follows has not been overruled or criticized. Gen. Elec.

Credit Corp. v. Aetna Cas. & Sur. Co., 263 A.2d 448, 456 (Pa. 1970) (citing Bugen v. N.Y.

Life Ins. Co., 184 A.2d 499, 501 (Pa. 1962) and Easton v. Washington County Ins. Co., 137

A.2d 332, 337 (Pa. 1958)). The moving party has the burden of showing mistake by “clear,

precise and indubitable evidence.” Id. at 456 (citing Easton, 137 A.2d at 337); Felix v.

Giuseppe Kitchens & Bath, Inc., 848 A.2d 943, 948 (Pa. Super. Ct. 2004) (evidence must be

“clear, precise and convincing”) (citing Bugen, 184 A.2d at 500)); Patterson v. Reliance Ins.

Cos., 507 F.2d 1332, 1337 (Pa. Super. Ct. 1984) (a “heavy burden”) (citing Easton, 137 A.2d

at 337)); Stowe v. Standard Life Ins. Co., 507 F.2d 1332, 1337 (3d Cir. 1975) (requiring

“‘clear, precise and convincing evidence’ of the basis for reformation”) (citing Gen. Elec.

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Credit Corp. and Easton). The understanding that is proffered as the basis for reformation

must be shown to have existed at the time the contract is executed. Patterson, 481 A.2d at

950-51 (citing Dudash v. Dudash, 460 A.2d 323, 326-27 (Pa. Super. Ct. 1983) (basis must

be shown in “the clearest manner” to have “existed and continued concurrently in the minds

of the parties down to the time of . . . execution of [the contract]”)). The proffered mistake

as well as the parties’ intentions must be clearly proven. Kramer v. Schaeffer, 751 A.2d 241,

246 (Pa. Super. Ct. 2000) (citing Dudash, 460 A.2d at 327 and Hassler v. Mummert, 364

A.2d 402, 403 (Pa. Super. Ct. 1976) (“It is necessary that the mistake as well as the parties’

actual intent be clearly shown.”)).

Defendants, which have the burden of proof for reformation based on mutual mistake,

must point out record evidence beyond the pleadings showing a genuine trial issue. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). After adequate time for discovery, summary

judgment is appropriate against a party that does not present evidence of an element essential

to that party’s burden of proof at trial. Id. at 323 (“a complete failure of proof concerning

an essential element . . . necessarily renders all other facts immaterial”). A thorough and

careful review of the record compels the conclusion that defendants have not met this

standard of proof. The evidence submitted is speculative about the parties’ intent and the

purported mistake.

The Lexington and AIU binders provide some evidence of the parties’ discussions

before the insurance contracts were executed. “A binder offers temporary protection for the

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insured pending the investigation of the risk by the insurance company until a formal policy

of insurance is issued.” Erie Ins. Exch. v. Lake, 671 A.2d 681, 685 n.7 (Pa. 1996); Harris

v. Sachse, 52 A.2d 375, 378 (Pa. Super. Ct. 1947) (A binder is “evidence that the insurance

coverage attaches at a specified time, and continues . . . until the policy is issued or the risk

is declined and notice thereof is given.”). Here, the binders do not memorialize an integrated

oral agreement finally arrived at by the parties. At most, they evidence an “agreement to

agree” that did not come to full fruition in regard to asbestos-related claims. See MDL

Capital Mgmt., Inc. v. Fed. Ins. Co., 274 Fed. App’x 169, 171 (3d Cir. 2008) (citing Onyx

Oils & Resins, Inc. v. Moss, 80 A.2d 815, 816 (Pa. 1951) (“[a]n agreement to agree is

incapable of enforcement”)). Moreover, the binders were effective only until the policies

were executed at which time the binders were terminated. Harris, 52 A.2d at 378.

The policies could be viewed as inconsistent with the binders, as suggested by

defendants, but only if an agreement to the binders’ terms and conditions were established.

No such agreement has been shown here. The record does not contain testimony from any

witness offering firsthand, personal knowledge about what the parties knew, intended,

understood, and agreed in regard to the binders for the 1984-85 period.

Defendants submit voluminous documents concerning GRC’s insurance in various

policy periods both before and after 1984-85. Based on their view of custom and trade

4

These documents are not germane to the insurance transactions at issue. They do not retroactively 4

or prospectively evidence the parties’ intent as to the insurance contracts actually made in 1984-85. See

Doctors Aff. 9/9/11, Exs. 1, 2, 10, 11, 13, 15, 16, 34, 35, 38, 40- 48.

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practices in the insurance industry from the mid-1970's forward, defendants urge that

insurance was virtually impossible to obtain for a company that had asbestos products

liability exposure in 1984-85. Against that backdrop, they conclude that GRC could not have

expected to procure such insurance and knew that the Granite State, Lexington, and AIU

policies did not contain asbestos exclusions. This position is not supported by competent

expert testimony or the record. Simply stated, these submissions do not fill the vacuum of

evidence as to what the parties knew, intended, and agreed to in regard to the policies issued

for the 1984-85 period. On this record, the written insurance contracts provide the only

reliable evidence of the agreements that were actually made.

The proffered mistake, a clerical error, is also speculative. That the policies did not

contain an asbestos exclusion is no more indicative of a clerical mistake in compiling the

policies than a prior agreement to insure asbestos liability. The record does not show that

either possibility is more likely than the other. Absent a mutual mistake warranting equitable

relief, the policies cannot be rewritten in order to give effect to the parties’ conflicting views

about the underwriting history of the policies. See Am. & Foreign Ins. Co. v. Jerry’s Sport

Ctr., Inc., 2 A.3d 526, 540 (Pa. 2010) (“mutual intention of the parties at the time they

formed the contract governs its interpretation”); Guardian Life Ins. Co. of Am. v. Zerance,

479 A.2d 949, 953 (Pa. 1984) (“we may not rewrite the insurance contract, under the guise

of judicial interpretation, to expand [or contract] the coverage beyond that as provided in the

policy.”).

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Defendants controlled the contents of their policies. See Kvaerner Metals Div. of

Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 897 (Pa. 2006) (“‘the

insurer drafts the policy, and controls coverage’”) (quoting 401 Fourth Street, Inc. v.

Investors Ins. Group, 879 A.2d 166, 171 (Pa. 2005)). The mistake, if any, concerning the

omission of an exclusion appears to have been on the defendant insurers’ part and, therefore,

a unilateral mistake not warranting equitable relief:

It falls stale upon the ear to be told that a formal contract was not read, or was

hurriedly prepared, or was signed in haste. Such things are no ground for

reforming or invalidating a contract . . . .

Thrasher v. Rothrock, 105 A.2d 600, 604 (Pa. 1954). An insurer’s failure to read its own

policy before issuing it to the insured does not justify supplanting well-accepted tenets of

contract and insurance law with considerations of equity to reform a policy. Ill. Nat’l Ins.

Co. v. Wyndham Worldwide Operations, 653 F.3d 225, 234 (3d Cir. 2011) (Nygaard, J.,

dissenting) (“Thisis particularly so where, as here, the insurerseeksreformation post-loss.”).

This type of unilateral mistake is not a ground for reformation or rescission. Rusiski v.

Pribonic, 515 A.2d 507, 511 (Pa. 1986); Patterson, 481 A.2d at 951 (“If the mistake is not

mutual, but unilateral, and not due to the fault of the party not mistaken, but to the negligence

of the party acting under the mistake, no basis for relief has been afforded.” (internal

quotation marks and citation omitted)).

Next, relief can be granted for mutual mistake only if it is not a mistake for which the

party claiming reformation or rescission bears the risk. Hart v. Arnold, 884 A.2d 316, 333-34

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(Pa. Super. Ct. 2005), appeal denied, 897 A.2d 458 (Pa. 2006); Loyal Christian Benefit Ass’n

v. Bender, 493 A.2d 760, 762 (Pa. Super. Ct.1985); Restatement (Second) of Contracts §§

152, 154 (1981). Given the circumstances here, the risk of mistake as to the contents of the

policies is reasonably allocable to defendants. The omission of the desired exclusions should

have been readily apparent to defendants when the policies were issued or no later than May

1985, when Romano so informed Bruzzi. Defendants do not give a persuasive explanation

of why they did not read and discover the omission during the many years of discovery in this

litigation.

In addition, reformation and rescission may be granted only when the contracting

parties can be restored to their former positions. Hart, 884 A.2d at 334; Gocek v. Gocek, 612

A.2d 1004, 1006 (Pa. Super. Ct. 1992); Sullivan v. Allegheny Ford Truck Sales, Inc., 423

A.2d 1292, 1295 (Pa. Super. Ct. 1980). Here, that is not feasible. GRC cannot purchase

replacement policies for the 1984-85 period covering its liability for bodily injury claims

related to its asbestos-containing products. Had defendants acted before the occurrence of

substantial injuries and a mutual mistake were established, reformation or rescission and

refund of the premiums might have been possible. Equitable relief is not warranted.

An order accompanies this memorandum. That order holds that reformation or

rescission of the Lexington and AIU policies is not granted and defendants’ counterclaims

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for such relief will be dismissed with prejudice. The question of whether the Granite State

policy should be deemed to contain an asbestos-related exclusion has not been presented or

decided.

BY THE COURT:

/s/ Edmund V. Ludwig

Edmund V. Ludwig, J.

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