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Owens-Illinois Inc. v. United Insurance Co.

Decided: April 29, 1993.

OWENS-ILLINOIS, INC., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
UNITED INSURANCE CO., OWENS INSURANCE LIMITED, AMERICAN RISK MANAGEMENT, INC., INTERNATIONAL RISK MANAGEMENT LTD., ARMRISK, INC., GENERAL REINSURANCE CORPORATION, ALLSTATE INS. CO. AND CIGNA REINSURANCE CO., DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS, AND AMERICAN REINSURANCE COMPANY, INTERVENOR



On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County.

Michels, Baime and Wallace. The opinion of the court was delivered by Baime, J.A.D.

Baime

[264 NJSuper Page 467] These appeals and cross-appeals present difficult questions concerning the construction and application of a series of primary and excess insurance policies issued by United Insurance Company (United) and Owens Insurance, Ltd. (OIL) to their insured Owens-Illinois, Inc. (O-I). OIL passed off 100% of its umbrella liability to various reinsurers who have also appealed from the Chancery Division's judgment.

Between 1948 and 1958, O-I manufactured Kaylo, a thermal insulation product containing asbestos. At present, claims against O-I for bodily injury and property damage caused by its asbestos products approach one billion dollars. O-I instituted suit in the Chancery Division, seeking a declaration of its right to indemnification and defense costs under its policies. The Chancery Division granted O-I's motion for summary judgment. In an oral opinion, the Chancery Division determined that O-I's claims were covered under various insuring agreements, and that the insurers and reinsurers had waived any defense based upon fraud or concealment.

We agree with the Chancery Division's interpretation of the insurance policies in question. We are also in accord with the court's adoption of the continuous trigger theory which provides that the date of occurrence of an injury process which is not a definite, discrete event encompasses the period from exposure to manifestation of injury or damage. We further hold that the liability of the insurers and reinsurers should be joint and several and that allocation of damages on a prorated basis is not feasible in light of the indivisible nature of the injury and damage sustained. However, we are obliged to reverse other parts of the Chancery Division's judgment and remand for a plenary trial. Specifically, we find genuine issues of material fact regarding (1) whether O-I's losses were "expected or intended," (2) whether the insurers and reinsurers waived their fraud defenses, and (3) whether the policies were issued by reason of a misrepresentation or concealment of material facts pertaining to potential asbestos liability.

I.

A. THE PARTIES

We begin by introducing the principal parties. O-I is a large Fortune 500 company which produces and sells various products, including shipping containers, bottles, cups, tubs, lids and stretch film fabricated from materials such as glass, paper, plastic and

wood. As of 1989, it was the largest manufacturer in the United States of building materials, with annual sales of 3.6 billion dollars.

American Risk Management (American Risk), International Risk Management, Ltd. (IRML) and Armrisk, Inc. (Armrisk) are three separate but affiliated companies of the Fred Reiss Group, an international organization which provides insurance and reinsurance brokerage, consulting and management services to companies desiring to create captive insurers. A captive insurer is a corporation organized for the purpose of insuring the liability of its owner. See Clougherty Packing Co. v. Commissioner, 811 F. 2d 1297, 1298 n. 1 (9th Cir.1987). Although there may be other permutations, generally the insured is both the sole shareholder and the only customer of the captive insurer. Ibid. American Risk is the parent of the Fred Reiss Group's captive management companies in the United States. IRML is the Bermuda office. Armrisk conducts its insurance brokerage business in New Jersey. For convenience, we denominate American Risk, IRML and Armrisk as the ARMS defendants. Other companies in the Fred Reiss Group include European Risk Management (ERML), which provides brokerage services in Europe, and ARM International, the brokerage affiliate for American Risk.

OIL is a captive insurance company which O-I created in 1975. ARMS was instrumental in organizing OIL. Under an umbrella insurance policy, OIL covered O-I for certain liabilities in excess of the insured's deductible and its primary policy issued by United. In reality, OIL is a mere skeleton which, as we mentioned previously, passed off 100% of its liability to reinsurers. IRML solicited reinsurance for OIL's umbrella liability policies and performed claim management services. O-I owns 99.99% of OIL's stock, and several of its corporate officers were also employees of OIL. Richard Johnson, O-I's Director of Risk Management between 1977 and 1985, was also variously a director, vice president and president of OIL during that same period.

United was formed as part of the Fred Reiss Group to write both direct casualty insurance and casualty reinsurance for ARMS

clients. All United employees are also employees of the Fred Reiss Group. United is owned by a group of captive insurance companies, one of which is OIL. United was the primary insurer of O-I and one of the reinsurers of OIL between 1977 and 1985.

General Reinsurance Corporation (General) is the largest reinsurance company in the United States and was the lead reinsurer of OIL between 1977 and 1982. Allstate Insurance Company (Allstate) is a major insurance underwriter and reinsured a portion of OIL's liability. CIGNA Reinsurance Company, the successor to INA Reinsurance Company, reinsured OIL between 1977 and 1985, and reinsured a portion of O-I's umbrella policy issued by Aetna Casualty and Surety Company (Aetna). American Reinsurance Company (American) is a subsidiary of Aetna and reinsured a portion of OIL's liability from 1977 to 1985.

B. THE DANGERS OF ASBESTOS

In 1943, O-I's predecessor, the Owens-Illinois Glass Company, developed a new industrial product known as Kaylo, which could be used as a thermal insulating material. Before Kaylo was used commercially, O-I conducted an investigation through the Saranac Laboratory and the Trudeau Foundation to determine whether dust liberated from the product during the fabrication process would be likely to pose a respiratory hazard to exposed individuals. Tests were performed between 1943 and 1952. Several of the reports from those tests indicated that Kaylo could cause asbestosis and pulmonary disease in animals and should be handled industrially as a hazardous dust. For example, on March 12, 1943, Leroy U. Gardner, a director of the laboratory, wrote that the use of Kaylo, and more particularly the mixture of quartz and asbestos, "suggested that [the company had] all the ingredients for a first class hazard." More alarming was a letter sent by Arthur J. Vorwald, another director, on November 16, 1948. In the letter, Vorwald rejected prior tentative reports which indicated that Kaylo failed to produce significant pulmonary damage when inhaled. Instead, Vorwald reported that a "definite indication of tissue reaction appeared in the lungs of animals inhaling

Kaylo dust." Moreover, prolonged exposure to the product, more than 30 months, resulted in "unmistakable evidence" of asbestosis. On May 31, 1944, Gardner wrote that further studies disclosed "a pulmonary disease simulating asbestosis" was produced by exposure to "appreciable quantities of Kaylo dust." In its report dated October 30, 1948, the Saranac Laboratory found that "Kaylo, because of its content of an appreciable amount of fibrous chrysotile, [was] capable of producing asbestosis and should be handled as a hazardous industrial dust." Other reports were released on April 30, 1949 and January 12, 1950. Vorwald wrote, "[t]he results to date, although not conclusive, indicate that Kaylo stimulates a tuberculous process in the lung." In its final report issued on January 30, 1952, the Saranac Laboratory concluded that Kaylo dust, when inhaled for a prolonged period, was capable of "producing in the lungs of guinea pigs the peribronchiolar fibrosis typical of asbestosis."

O-I's response to these reports was limited to reducing its workers' exposure to Kaylo dust in the manufacturing process. The company continued to produce Kaylo until 1958. At that time, its Kaylo Division was sold to Owens-Corning Fiberglas (Owens-Corning). Thereafter, O-I neither manufactured nor sold asbestos-containing products. We note, however, that O-I was a major shareholder of Owens-Corning and received copies of that 0 company's SEC filings which showed an increase in the number of asbestos actions instituted against it. In 1969, Owens-Corning was a named defendant in what became a landmark decision in the area of asbestos litigation. See Borel v. Fibreboard Paper Prods. Corp., 493 F. 2d 1076 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed. 2d 107 (1974). By the mid-1970's, OIL's chairman knew about the asbestos cases filed against Owens-Corning but did not relay this information to the board of directors.

C. O-I'S PRODUCT LIABILITY INSURANCE

Between 1963 and September 1977, O-I obtained product liability insurance from Aetna under excess or umbrella policies. As we

will note later in our opinion, Aetna also supplied O-I's primary insurance policy which contained an exclusion for most types of product liability. As to its excess and umbrella coverage, the Aetna policies contained a $250,000 "self-insured retention" (SIR), essentially a deductible for each "occurrence" resulting in personal injury or property damage. Prior to September 1977, Allstate and CIGNA 1 reinsured Aetna on the upper layers of its umbrella coverage.

In 1975, ARMS advised O-I of certain tax and insurance management benefits of establishing a captive insurer. It was at that time that ARMS helped O-I create OIL, a wholly owned subsidiary, to perform O-I's insurance services. IRML was then retained by OIL to obtain reinsurance. By 1976, ARMS had sold O-I property insurance and was soliciting its casualty lines to be underwritten by OIL.

Prior to September 1977, O-I's own legal staff processed asbestos claims which, at that time, were considered "inconsequential." Specifically, O-I relied on its legal department to investigate and defend claims arising out of its asbestos and glass products, although outside counsel were retained to supervise the product liability litigation. O-I and Aetna had agreed that O-I's duty to report claims would be triggered when an internal notice was sent to its risk management department, headed at that time by Johnson. O-I had a very successful loss history and thus maintained high deductibles on its policies. It maintained no "reserve" on product claims, but instead considered judgments and settlements as losses in the years paid.

O-I 2 renewed its Aetna casualty coverage through September 1, 1977. However, prior to that date, Johnson engaged in a series of meetings with Robert Lonsdale, the president of American Risk and an officer of ARM International. Although other subjects were discussed, O-I sought to decrease its casualty insurance premiums and, therefore, considered changing its insurance provider and self-insuring more of its risk. Johnson told Lonsdale that O-I wished to duplicate its coverage with Aetna. To reduce

premiums, however, it was proposed that the umbrella coverage attach at one million dollars and that a primary policy be obtained to cover the $750,000 exposure between its $250,000 SIR and the one million dollar umbrella.

In June 1977, O-I prepared a "bid package" consisting of various materials describing the company's manufacturing activities and insurance risks, and the coverage it sought. O-I stated that its goals included self-insuring more of its risks, maintaining greater control over claims, utilizing OIL and reducing its costs. O-I expressly requested a primary comprehensive general liability (CGL) policy that specifically referred to product liability coverage:

3 Coverage desired is primary insurance over a $250,000 per occurrence retention with optional $500,000 and $1,000,000 retentions. This will be a combined CGL and CAL policy covering general (including products) and commercial vehicle exposures on a fronting arrangement for vehicle liability only with control of claims retained by O-I.

In addition, O-I sought a standard excess umbrella policy "endorsed to provide coverage at least as broad as underlying policies," with a fifty million dollar limit. It required that bids submitted "precisely follow[] the specs," and asked that specimen policies be provided as well.

Along with its bid package, O-I made certain disclosures in line with the types of information it had historically provided to Aetna when applying for insurance with that company. O-I also enclosed its product liability loss history, describing the five largest claims it had settled during the five prior years, and the five most serious open claims, none of which involved asbestos. It disclosed that in the past five years no claim had approached the $250,000 SIR level, and that it did not place "reserves" on open product liability cases. It also noted its past 4 practice of giving Aetna notice of only those pending product liability claims which it felt "may approach the [$250,000] retention level." While the bid submissions related only to the products referenced in the 1976 Annual Report, potential bidders were free to contact O-I with particular questions.

O-I's bid package contained no information respecting asbestos liability. Nor did it disclose that O-I had once manufactured Kaylo. The package invited bids for casualty insurance matching O-I's coverage requirements, commencing on September 1, 1977. Johnson reviewed and approved O-I's bid package, and thereafter participated in negotiations with various brokers and insurance providers.

ARMS submitted its proposal in response to O-I's solicitation. In the summer of 1977, ARMS requested additional information from O-I, specifically inquiring about "high risk" hazards such as potential claims for "silicosis caused by ingestion of airborne particles" or "other occupational diseases." Obviously, memories dimmed by the passage of time and the depositions of those involved in these Discussions were not particularly illuminating. Lonsdale did not recall asking Johnson specifically 5 about asbestos. However, he described an interview he had with William Rogers, O-I's industrial hygienist, in which the latter mentioned in passing that the law required "a complete medical survey if there [was] asbestos exposure."

We note that prior to September 1977, no insurance provider had ever requested a survey from O-I of its past or present products. Nor had any specific inquiries been made concerning current or potential asbestos claims. The record discloses that, as of July 28, 1977, O-I had made no payments in satisfaction of any of the twenty-three pending asbestos claims that had been filed against it.

D. O-I'S NEW CASUALTY INSURANCE PLAN

ARMS, on behalf of United and OIL, ultimately offered to provide insurance in accordance with O-I's bid specifications. Under its proposal, ARMS described a plan to "duplicate [O-I's] existing coverage with Aetna." Specifically, there was a one million dollar "primary products liability aggregate," including a $250,000 SIR. In addition, an umbrella policy would cover losses in excess of the primary coverage up to a limit of fifty million

dollars. The ARMS proposal thus consisted of two planks. United was to control 6 the first. It would issue the general and product liability policy with a limit of one million dollars, and a $250,000 SIR. Hence, United's exposure was $750,000. OIL was in charge of the second plank, and would issue an umbrella policy essentially identical to its Aetna counterpart. The fundamental difference between Aetna's umbrella coverage and that offered by OIL was that Aetna's coverage "dropped down" and attached to product liability claims in excess of O-I's $250,000 SIR. In contrast, OIL's umbrella was a supplement to the one million dollar coverage to be provided by United. The OIL umbrella would provide coverage to O-I on an "ultimate net loss basis" up to fifty million dollars. However, the OIL policy was 100% reinsured.

O-I accepted ARMS' proposal on August 19, 1977. The new plan was to become effective on September 1, 1977. ARMS requested a copy of O-I's policy with Aetna because its scheme was designed to duplicate that coverage. O-I agreed to waive the requirement that ARMS present specimen policies. Factual disputes exist concerning exactly how the new policies were drafted. Apparently, O-I revised the Aetna policy and sent it to ARMS for typing. ARMS' 7 Miller and Lonsdale were responsible for preparing the completed product. Although the record is somewhat vague on the point, it appears that O-I, OIL and United relied upon ARMS to draft the final policies consistent with the agreed upon proposal. We gather from the depositions that ARMS added some of the provisions which ultimately appeared in the executed policies. So too, these agreements did not include all of the revisions that O-I had made on the Aetna policies that had been sent to ARMS. Despite voluminous depositions, it is unclear how some of the additions and deletions originated and at whose instance.

We briefly digress to describe another somewhat confusing incident, although this pertains to one of the reinsurers, CIGNA. CIGNA had provided part of the umbrella coverage on the Aetna policies through 1976. Apparently unaware of O-I's negotiations with ARMS, Aetna's reinsurance broker contacted CIGNA in July

1977 and asked whether it wished to renew its reinsurance agreement. The broker telexed CIGNA that it would "[c]ontinue[] [the] expressed condition that there are no pharmaceutical products or asbeston [sic] products." CIGNA accepted the broker's renewal 8 application, expressly stipulating that "there were . . . no asbestos products." At about the same time, CIGNA learned that O-I authorized ARMS to place its 1977-78 insurance. According to CIGNA, ARMS stated that it "could rely on the information which [Aetna's brokers] had submitted in connection with the 1977-1978 aborted renewal" of the reinsuring agreement.

E. EXECUTED UNITED AND OIL POLICIES

Because of the delay involved in typing and executing the insuring agreements, United did not issue its 1977-1978 primary policy until December 12, 1978. OIL did not issue its 1977-1978 umbrella policy until December 13, 1978. We are told that such a delay between drafting and execution of a policy is not unusual in the industry.

The executed policies are formidable documents. The United policy contains 16 endorsements, 13 conditions with subparts, and numerous exclusions. In the cover jacket, cover page and declaration sheets, repeated references are made to "product liability." Indeed, the policy is entitled "General Liability -- Products Liability." The broad language of the insuring agreement clearly encompasses bodily injury and property damage risks emanating from product liability. 9 The "products hazard" is defined as including "[b]odily [i]njury and [p]roperty damage arising out of the [n]amed [i]nsured's [p]roducts . . . ." However, buried in the list of exclusions is Exclusion J which states that coverage does not apply "[t]o personal injury or property damage arising out of the products hazard unless such injury or damage arises out of the sale or distribution of electricity, gas, food or beverages by the named insured." We have underscored the phrase "electricity, gas, food or beverages" because it is undisputed that O-I produces none of these products. Despite the sophistication of the parties,

this brief reference in the lengthy document apparently escaped the attention of the insured, its insurers, reinsurers and brokers. We will have occasion to again refer to this exclusion later in our opinion. The United policy otherwise comports with the ARMS proposal. There appears a $250,000 SIR and liability is limited to one million dollars.

OIL's umbrella policy is equally complex. The limits of liability are stated in terms of "$50,000,000 each occurrence" and "$50,000,000 aggregate product." Endorsement 2 provides, "[i]t is agreed that if any policy of [u]nderlying [l]iability [i]nsurance applies to an occurrence excluded . . . in section 2.2 of this policy, the insurance afforded by this policy shall apply to such occurrence notwithstanding such exclusion." Section 2.2 contains numerous lettered exclusions. Under Endorsement 2, OIL's umbrella would cover risks encompassed in the underlying primary policy even if the umbrella did not specifically provide for such coverage or excluded it. We will return to this clause later in our opinion. Suffice it to say here, the "as broad as" clause is important because OIL later sought to add an exclusion to section 2.2 relating to asbestos risks.

Between September 1, 1977 and September 1, 1978, United reinsured OIL for the first "layer" of five million dollars. General reinsured OIL for the next five million dollars. American, Allstate and CIGNA, along with various other companies, reinsured OIL for additional layers of reinsurance up to the fifty million dollar umbrella limit.

F. O-I'S DEVELOPING KNOWLEDGE OF ASBESTOS CLAIMS

When the new ARMS insurance plan went into effect, approximately twenty-five asbestos claims were pending against O-I. In November 1977, Johnson orally apprised Aetna 1 of the existence of these claims. No similar disclosure was made to United or OIL. In April 1978, Armrisk received a telex from its London-based affiliate, ERML, in response to Armrisk's efforts to increase OIL's

umbrella policy from fifty million to seventy million dollars. The telex stated that the "[u]nderwriter wish[ed] to know if there [was] any asbestos involvement in any process past or present." After receiving no response, ERML explained that coverage could be placed "only if satisfied on answers regarding asbestos use." That same day, Armrisk replied by telex, "no asbestos exposure." The source of this response is unclear. Although Armrisk's practice was to direct inquiries to the insured, the record is silent respecting whether that procedure was followed in responding to ERML's request.

In his depositions, Johnson testified that he met with Armrisk's representatives on May 15, 1978 and the subject of asbestos was discussed. Specifically, Johnson told them that he had reported the pending cases to Aetna. Johnson also testified that he subsequently received from Armrisk a judicial decision dealing with an insurer's duty to defend an asbestos manufacturer. Johnson 2 remembered that it was also during May 1978 that he apprised General of the same asbestos cases that he had reported to Aetna. Although O-I continued to look to Aetna for coverage, Johnson claimed that he also kept ARMS apprised of the situation. O-I refrained from adopting an "official position" concerning whether liability was triggered by the claimant's exposure to asbestos or by the manifestation of the injury or damage. Despite O-I's repeated demands, Aetna denied coverage.

On May 26, 1978, Johnson wrote Aetna listing the various pending asbestos cases and damage claims against O-I. As of that date, there were over 150 such actions with an aggregate exposure of approximately $400 million. Aetna requested that O-I inform it of the asbestos claims on a "manifestation basis." O-I complied with that request.

In the meantime, ARM International solicited CIGNA to renew its portion of the OIL umbrella. The renewal solicitation made no mention of pending asbestos cases. In its request, ARM International represented that the risk subject to the renewal had "not

changed during the year." On September 1, 1978, O-I increased its umbrella coverage to $100 million.

By the 3 summer of 1979, Johnson was of the view that O-I's asbestos exposure was "peaking." This opinion was predicated upon Johnson's understanding that most asbestos claims were filed within twenty years of the claimants' exposure. It will be recalled that O-I had not manufactured asbestos products since 1958. In an unsettling development, however, it was about this time that the Saranac Laboratory reports of the 1940s and 1950s were read on the floor of Congress. O-I's legal department concluded that claims emanating from exposure to Kaylo might be more numerous and more significant than originally anticipated.

On August 9, 1979, Johnson met with representatives of ARM, United, OIL and General in order to obtain the 1979 renewal of O-I primary and excess policies. Johnson's handwritten notes from that meeting indicated that he "mentioned asbestosis." Peter Nance, the representative of General who attended, remembered the meeting and acknowledged that the subject of O-I's past production of Kaylo and O-I's pending claims with Aetna "could have been discussed." However, he did not recall any specific conversations pertaining to those subjects. Nance's handwritten notes contain the words 4 "asbestosis -- sold 1958 -- Owens Corning." ARMS' Art Brown, also at the meeting, had no recollection of the subjects discussed independent of his notes, which contain the words "fiberglass insulation sold in the 50's [sic]," and "asbestos insulation."

In connection with the request to renew its portion of OIL's umbrella coverage in 1979, CIGNA received information concerning O-I's losses since 1975. The record does not disclose the source of this information. The "Loss Data" sheet provided:

1. No loss has exceed[ed] the $250,000 retention of [O-I].

2. In the past five years one loss has approached O-I's $250,000 retention (SIR). The claim [is] estimated at $250,000 payment plus legal expenses. Most claims often include other [defendants], such as the bottler and/or distributor. A majority of such claims involve cuts.

Effective September 1, 1979, CIGNA issued reinsurance certificates to OIL, covering various layers of its umbrella policy to O-I.

Solicitations were made to other reinsurers. On September 3, 1979, ERML requested additional information from ARMS concerning the status of claims against O-I. ERML asked an ARMS' representative if he could "confirm" 5 that O-I had "no asbestos exposure." In the responding telex, ARMS wrote "no" adjacent to the words "no asbestos exposure." Johnson later met with James Blackstone, the attorney who handled ARMS' casualty claims. According to Johnson, pending asbestos claims were discussed with Blackstone, who stated that he was "working for the reinsurers."

G. 1980: O-I'S FORMAL NOTIFICATION OF ITS ASBESTOS EXPOSURE

In late 1979, O-I began receiving an increasing number of asbestos claims and it feared the manifestation dates might implicate its post-1977 insurers. In January 1980, O-I created a three million dollar reserve, based on the asbestos claims information it then possessed. Aetna refused to reimburse O-I for the claims it had submitted.

On July 15, 1980, Johnson wrote General and provided certain information about the renewal of O-I's insurance which it was seeking through ARMS. Johnson disclosed that O-I had manufactured Kaylo and had been sued by various workers for asbestos exposure. He generally outlined the cost of the claims to that date, and described Aetna's position that each claim constituted a separate "occurrence" for purposes of the $250,000 SIR. In other words, Aetna's 6 policies were implicated only to the extent that each separate asbestos claim exceeded O-I's $250,000 SIR. Johnson further advised General that it might eventually present claims to United and the excess carriers based upon the thesis that, regardless of the date the claimants were exposed to Kaylo, injuries became manifest after September 1, 1979, when the new insurance scheme went into effect.

On July 30, 1980, O-I sent its first written notice to American Risk concerning the mounting asbestos claims. That notice read in pertinent part as follows:

We are giving notice of a potential claim under our Products Liability Policies written by United subject to a $250,000 retention. If our claim settlements and legal costs exceed $250,000 in a given policy year, we will look to United, and possibly the Umbrella carriers, for reimbursement. Therefore, we suggest that the Umbrella carriers also be put on notice.

O-I also stated that it had previously notified Aetna of the pending asbestos claims, but that O-I was adopting the position that the insurance in effect on the date that the injury or damage became manifest was to control. At that time, O-I was marshalling 7 information as to the manifestation dates of the pending claims, and stated that "in the near future" it hoped to be able to "advise which of the approximate[ly] 2,000 cases filed to date would be insured under the United policies."

On August 6, 1980, Roger Greiner, General's assistant vicepresident, wrote to Johnson to confirm their conversation of the previous day in which General agreed to renew fifty percent of the first five million dollar umbrella layer and 100% of the next five million dollars. However, Greiner stated that General's "renewal . . . [would] specifically exclude all asbestos exposure." On August 11, 1980, ARMS' claims attorney forwarded a copy of Johnson's July 30 notice, which we quoted previously, to OIL and United. The attorney also observed that ARMS would take the position that the "exposure" theory applied to the policies in question. On August 13, 1980, CIGNA "was informed of [O-I's] exposure to asbestos-related lawsuits." On August 18, 1980, CIGNA sent ARMS its "renewal authorization[ ]," but emphasized that "[t]his authorization assumes exclusion of liability arising out of asbestos."

Also on August 18, 1980, a representative of General met with Johnson 8 and engaged in a "brief general review . . . of the blocks of asbestos litigation around the country in which [O-I] [was] . . . involved." On August 26, 1980, General offered O-I a funding plan for its asbestos coverage. Under General's plan, it would insure fifty percent of the first five million dollar layer of O-I's

umbrella and 100% of the second layer but would be "reimbursed for all asbestos losses . . . by [O-I]" on the basis of an agreed upon formula. According to General's letter, its offer did not "affect any coverage O-I had before September 1, 1980." Nor did it affect the renewal of the remainder of O-I's insurance "for which ...


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