On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-248-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, LeWinn and Coburn.
Plaintiff, Sussex County Plumbing, Inc. ("Sussex"), filed a declaratory judgment action for insurance coverage. Defendants New Jersey Manufacturers Insurance Company ("NJM") and Penn National Insurance Company ("Penn") filed cross-claims against each other. The other insurance company defendants were dismissed from the action.
The underlying actions sought personal injury damages for asbestosis on behalf of Allen Wood and Alfred Notaro, who alleged that they were exposed to asbestos contained in products sold by Sussex and delivered by Sussex to work sites where they were employed. Penn settled the personal injury claims and sought contribution from NJM. Cross-motions for summary judgment were denied, and the case was then submitted to another judge on what the parties describe as a stipulation of facts.
Penn was awarded judgment in the amount of $80,540.56 plus interest.
NJM appeals, arguing that the second judge erred by completely ignoring the "products hazard/completed operations exclusions in the policies it issued to Sussex." NJM also contends that based on the stipulated facts concerning the underlying actions and the exclusions, it was entitled to judgment.
Penn does not contend that NJM's policy exclusion is ambiguous. NJM did not provide the full range of products liability insurance. Consequently, there is, to quote one of the policies, no coverage "if the accident occur[ed] after possession of [Sussex's] goods or products ha[d] been relinquished to others."
Resolution of this case should have turned on the question of whether there was relinquishment before Wood and Notaro were exposed to asbestos contained in any products sold by Sussex. Although the first judge understood the issue, he determined that as to it there were issues of fact requiring resolution at trial. The second judge treated the exclusion as irrelevant and made no findings respecting relinquishment and exposure. Instead, he assumed that the triggering event for insurance coverage in this case is exposure to asbestos, regardless of whether that exposure occurred within the four-walls of Plaintiff's place of business or at the job sites where Allen Wood and Alfred Notaro worked and received asbestos-laden goods from Plaintiff.
For his assumption, the judge cited Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437 (1994). But in that asbestos case the Court was concerned with the allocation of responsibility among companies that had issued comprehensive general liability ("CGL")policies covering general and products liability:
To recapitulate, we hold that when progressive indivisible injury or damage results from exposure to injurious conditions for which civil liability may be imposed, courts may reasonably treat the progressive injury or damage as an occurrence within each of the years of a CGL policy. That is the continuous-trigger theory for activating the insurers' obligation to respond under the policies. [Id. at 478-79.]
The opinion does not say or imply that a relevant exclusion should be ignored.
Penn suggests that support for the judge's ruling may be found in Continental Cas. Co. v. Employers Ins. Co. of Wassau, 839 N.Y.S. 2d 403 (Sup. Ct. 2007), rev'd, 871 N.Y.S. 2d 48 (App. Div. 2008). But we find nothing in either opinion that advances Penn's claim, implicitly adopted by ...