Ins. Co. Of North Am. v. Forty-Eight Insulations, Inc., 657 F.2d 814 (6th Cir. 1981). · Go Syfert
Search
Ins. Co. Of North Am. v. Forty-Eight Insulations, Inc., 657 F.2d 814 (6th Cir. 1981). Cases Citing This Book View Copy Cite
184 citation events (40 in the last 25 years) across 63 distinct courts.
Strongest positive: R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co. (connappct, 2017-03-07)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
cited Cited as authority (rule) R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co.
Conn. App. Ct. · 2017 · confidence medium
Co. of North America v. Forty-Eight Insulations, Inc. , supra, 657 F.2d at 815 ("[M]any of the underlying plaintiffs' complaints against the manufacturers allege both cancer and asbestosis.
discussed Cited as authority (rule) Texas Property & Casualty Insurance Guaranty Ass'n v. Southwest Aggregates, Inc.
Tex. App. · 1999 · confidence medium
The Sixth Circuit adopted the view now urged by Alliance in Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), clarified, 657 F.2d 814, 816 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited as authority (rule) Stonewall Insurance v. Asbestos Claims Management Corp.
2d Cir. · 1995 · confidence medium
We also note that proration-to-the-insured, in the context of continuous triggering, has been approved by the Sixth Circuit, see Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir.1980), clarified, 657 F.2d 814, 816 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981), and by Judge Wald in the District of Columbia Circuit, see Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1057-58 (D.C.Cir.1981) (Wald, J., concurring); see also Uniroyal, Inc. v. Home Insurance Co., 707 F.Supp. 1368, 1392 (E.D.N.Y.1988) (“…
discussed Cited as authority (rule) Johnson v. Studyvin
D. Kan. · 1993 · confidence medium
Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028 , 103 S.Ct. 1279 , 75 L.Ed.2d 500 (1983), (3) when actual injury occurs, see Insurance Co. of N. Am. v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir.1980), clarified, 657 F.2d 814 *882 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981), (4) or at any time when one of these three events occurs.
discussed Cited as authority (rule) Clemtex, Inc. v. Southeastern Fidelity Insurance Company
5th Cir. · 1987 · confidence medium
See Ducre, 752 F.2d at 994 (“an important underpinning of Porter and Forty-Eight Insulations was the medical evidence in those records to the effect that each exposure to asbestos fibers resulted in damage to the victims’ lungs"); Insurance Co. of North America v. Forty-Eight Insulations, Inc., 657 F.2d 814, 815-16 (6th Cir.1981) (extending applicability of exposure theory to other diseases besides asbestosis in part because of factual characteristics of these diseases); see generally Royal Globe Ins.
examined Cited as authority (rule) Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Company, Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Company, Philip Alan Froude, Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Company, American Motorists Insurance Company (3×) also: Cited "see, e.g."
1st Cir. · 1982 · confidence medium
Although the likelihood of onset of these diseases appears to be dose-related, see Forty-Eight, supra, 657 F.2d at 815, they are apparently not cumulative in nature like asbestosis, see Vagley & Blanton, Aggregation of Claims: Liability for Certain Illnesses With Long Latency Periods Before Manifestation, 16 Forum 636 (Spring 1981).
examined Cited as authority (rule) Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance (3×) also: Cited "see, e.g."
1st Cir. · 1982 · confidence medium
Although the likelihood of onset of these diseases appears to be dose-related, see Forty-Eight, supra, 657 F.2d at 815, they are apparently not cumulative in nature like asbestosis, see Vagley & Blanton, Aggregation of Claims: Liability for Certain Illnesses With Long Latency Periods Before Manifestation, 16 Forum 636 (Spring 1981).
discussed Cited "see" Mayor and City Council of Baltimore v. Utica Mutual Ins. Co.
Md. Ct. Spec. App. · 2002 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1225 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); see also Public Service Company of Colorado, 986 P.2d at 941-43 ; Stonewall Insurance Company, 73 F.3d at 1201-05; Northern States Power Company v. Fidelity and Casualty Company of New York, 523 N.W.2d 657, 663 (Minn.1994).
discussed Cited "see" Security Ins., Hartford v. Lumbermens M\\c, No. Cv96-0475565s (Jul. 12, 1999)
Conn. Super. Ct. · 1999 · signal: see · confidence high
See Insurance Co. of North America v. Forty-Eight Insulations, Inc. , 633 F.2d 1212 , 1224-25 (6 th Cir. 1980), clarified, 657 F.2d 814 , 816 (6 th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981) (reasoning underlying proration of indemnification costs for periods in which insured was self-insured equally applicable to proration of defense costs); Gulf Chemical Metallurgical Corp. v. Associated Metals Minerals Corp. , 1 F.3d 365 , 372 , (5 th Cir. 1993) (insured must bear its share of defense costs determined by fraction of time it lacked insurance coverage); Uniroya…
discussed Cited "see" Lafarge Corp. v. Hartford Casualty Insurance
5th Cir. · 1995 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, 633 F.2d 1212 , 1224 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
cited Cited "see" Underwriters at Interest v. SCI STEELCON
W.D. Mich. · 1995 · signal: see · confidence high
See Insurance Co. of N.A. v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1219 (6th Cir.), reh’g granted in part on other grounds, 657 F.2d 814 (6th Cir.1980).
discussed Cited "see" New York Life Insurance v. Agee
E.D. Mich. · 1992 · signal: see · confidence high
See Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1219 (6th Cir.1980), clarified on other grounds, 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Century Boat Co. v. Midland Ins.
discussed Cited "see" Diamond Shamrock Chemicals v. Aetna
N.J. Super. Ct. App. Div. · 1992 · signal: see · confidence high
See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F. 2d 1212, 1222 (6th Cir.1980), clarified, 657 F. 2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed. 2d 650 (1981).
discussed Cited "see" Bankr. L. Rep. P 74,366 in the Matter of the Central Railroad Company of New Jersey, Wilmat Holdings, Inc., (As Successor-In-Interest to Central Jersey Industries, Inc.) (\Wilmat\")"
3rd Cir. · 1991 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1218 (6th Cir.1980), clarified 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited "see" In re Central Railroad Co. of New Jersey
3rd Cir. · 1991 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1218 (6th Cir.1980), clarified 657 F.2d 814 (6th Cir.1981), ce rt. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited "see" Findley v. Blinken (In Re Joint Eastern & Southern District Asbestos Litigation) (2×) also: Cited "see, e.g."
S.D.N.Y. · 1991 · signal: see · confidence high
See Insurance Co. of North America v. Forty Eight Insulations, Inc., 657 F.2d 814, 816 (6th Cir.) (trigger for insurance coverage exposure because ‘bodily injury’ occurs when asbestos victims first starts breathing asbestos fibers), cert denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); see also Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1047 (D.C.Cir.1981) (term “bodily injury” in comprehensive liability policies means “any part of the single injurious process that asbestos-related disease entails”), cer t. denied, 455 U.S. 1007 , 102 S.Ct. 1644 , 7…
discussed Cited "see" Celotex Corp. v. Meehan (2×)
Fla. · 1988 · signal: see · confidence high
See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1214 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 522 (Fla. 3d DCA 1985), review denied, 492 So.2d 1331 (Fla. 1986); Pierce v. Johns-Manville Sales Corp., 296 Md. 656 , 660 n. 4, 464 A.2d 1020 , 1023 n. 4 (1983); Locke v. Johns-Manville Corp., 221 Va. 951, 958 , 275 S.E.2d 900, 905 (1981).
discussed Cited "see" Clemco Industries v. Commercial Union Insurance
N.D. Cal. · 1987 · signal: see · confidence high
The CGL policy was drafted in the mid-1960’s by two national committees established by the insurance industry in order to address “difficulties faced by the courts and the parties in dealing with personal injury and property damage sustained as a result of gradual processes.” American Home Products Corp. v. Liberty Mutual Insurance Co., 565 F.Supp. 1485, 1501 (S.D.N.Y.1983), modified, 748 F.2d 760 (2d Cir.1984); see Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1216 (6th Cir.1980), clarified, 657 F.2d 814 , cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 7…
discussed Cited "see" Petersen v. Chesapeake & Ohio Railway Co.
6th Cir. · 1986 · signal: see · confidence high
See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1218 (6th Cir. 1980) , aff'd on rehearing, 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1982).
discussed Cited "see" Frederick F. Petersen, Deceased, and Mary Jane Petersen, Individually and as Administratrix of the Estate of Frederick F. Petersen, Cross-Appellants v. The Chesapeake and Ohio Railway Company, Cross-Appellee, and Johns-Manville Sales Corporation, Third-Party v. Armstrong Cork Company, the Celotex Corporation, Owens-Corning Fiberglas Corporation, Owens-Illinois Glass Company, Eagle-Picher Industries, Inc., and Garlock, Inc., Third- Party
3rd Cir. · 1986 · signal: see · confidence high
See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1218 (6th Cir.1980), aff'd on rehearing, 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1982).
discussed Cited "see" Independent Petrochemical Corp. v. Aetna Casualty & Surety Co.
D.D.C. · 1986 · signal: accord · confidence high
Accord Insurance Co. of North Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1224-25 (6th Cir.1980), modified, 657 F.2d 814 , cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Keene, supra note 6. 13 .
discussed Cited "see" Ayers v. Jackson Tp.
N.J. Super. Ct. App. Div. · 1985 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F. 2d 1212 , 1218 (6th Cir.1980), clarified 657 F. 2d 814 (1981), cert. denied, 454 U.S. 1109 *122 [ 102 S.Ct. 686 , 70 L.Ed. 2d 650 ] (1981).
discussed Cited "see" Schweitzer, Josephine v. Consolidated Rail Corporation (Conrail) and the Reading Company. Seibert, Mildred, Individually and as of the Estate of Seibert, Paul D., Deceased v. Consolidated Rail Corporation (Conrail) the Reading Company. Wentzel, George A. v. Consolidated Rail Corporation (Conrail) and the Reading Company. Elaine Schwambach, of the Estate of Woodrow W. Schwambach and Merlin Schwambach, of That Estate v. Consolidated Rail Corporation (Conrail) and the Reading Company. Frank, Marilyn L., as of the Estate of Russell C. Wennell, Deceased v. Consolidated Rail Corporation (Conrail) and the Reading Company. Scholl, Martin H., Individually and as of the Estate of Ethel M. Scholl, Deceased v. Consolidated Rail Corporation (Conrail) and the Reading Company. Fenstermacher, Earl R., and Scholing, Carl v. Consolidated Rail Corporation, a Corporation, and the Reading Company, a Corporation v. Anchor Packing Company, Celotex Corporation, Successor-In-Interest to Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company And/or Panacon Corporation, Certainteed Corporation, Durox Equipment Company, Garlock, Inc., Janos Industrial Insulation Corporation, John Crane- Houdaille, Inc., J.W. Roberts Ltd., Keene Corporation, Nicolet, Inc., Nosroc Corporation, Successor-In-Interest to G. & W.H. Corson, Inc. And Calcite Quarry Corporation, Studebaker-Worthington, Inc., Tannetics, Inc., Turner & Newall Plc, Turner Asbestos Fibers Ltd., Union Rubber, Inc. And Vellumoid Company, Third-Party Eagle Picher Industries, Inc. And Flintkote Company. Appeal of Fenstermacher, Earl R., in No. 84-1203. Appeal of Scholing, Carl, in No. 84-1204. Josephine Schweitzer, Mildred Seibert, Individually and as of the Estate of Paul D. Seibert, Deceased, George A. Wentzel, Elaine Schwambach, of the Estate of Woodrow W. Schwambach, and Merlin Schwambach, of That Estate, Marilyn L. Frank, as of the Estate of Russell C. Wennell, Deceased, Martin H. Scholl, Individually and as of the Estate of Ethel M. Scholl, Deceased v. Consolidated Rail Corporation (Conrail) and the Reading Company. Appeal of Consolidated Rail Corporation. (Two Cases) Earl R. Fenstermacher and Carl Scholing v. Consolidated Rail Corporation, a Corporation, and the Reading Company, a Corporation v. Anchor Packing Company, Celotex Corporation, Successor-In-Interest to Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company And/or Panacon Corporation, Certainteed Corporation, Durox Equipment Company, Garlock, Inc., Janos Industrial Insulation Corporation, John Crane- Houdaille, Inc., J.W. Roberts Ltd., Keene Corporation, Nicolet, Inc., Nosroc Corporation, Successor-In-Interest to G. & W.H. Corson, Inc. And Calcite Quarry Corporation, Studebaker-Worthington, Inc., Tannetics, Inc., Turner & Newall Plc, Turner Asbestos Fibers Ltd., Union Rubber, Inc. And Vellumoid Company, Third-Party Eagle Picher Industries, Inc. And Flintkote Company. In the Matter of the Central Railroad Company of New Jersey, Debtor, Consolidated Rail Corporation, Intervenor, Andrew Thomas and Trudell Thomas, His Wife, Appeal of Andrew Thomas and Trudell Thomas, in No. 84-5293. Appeal of Consolidated Rail Corporation, Intervenor in No. 84-5310. In the Matter of the Central Railroad Company of New Jersey, Debtor, Consolidated Rail Corporation, Intervenor . Appeal of Joseph Pongrac, Sr., Robert A. Bingle, Alexander Redelico and Evelyn Redelico, H/w, Joseph C. Popadick and Elma Popadick, H/w, Edward Witos and Philomena Witos, H/w, Mark Gammel, Harry Guralchuk, Steve Palichak, Joseph M. Pinto, Frank Pongrac, Jr., John Sowizral, Harry Wilson, George J. Zeblisky, Robert J.F. Brobyn, Richard Middleton and Any and All Persons Acting on Their Behalf
3rd Cir. · 1985 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1218 (6th Cir.1980), clarified 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited "see" Schweitzer v. Consolidated Rail Corp.
3rd Cir. · 1985 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1218 (6th Cir. 1980), clarified 657 F.2d 814 (6th Cir.1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited "see" Gulf Ins. Corp. v. Continental Cas. Co.
Fla. Dist. Ct. App. · 1985 · signal: see · confidence high
See Insurance Company of North America v. Forty-Eight Insulations, Inc., 451 F. Supp. *209 1230 (E.D.Mich. 1978), aff'd, 633 F.2d 1212 (6th Cir.1980), aff'd on rehearing, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited "see" In Re Johns-Manville Corp. (2×)
Bankr. S.D.N.Y. · 1984 · signal: see · confidence high
See Insurance Co. of North America v. Forty Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980) aff’d on rehearing, 657 F.2d 814 (6th Cir. 1981), rehearing denied, 455 U.S. 1009 , 102 S.Ct. 1648 , 71 L.Ed.2d 878 (1982).
discussed Cited "see, e.g." Lafarge Corp. v. National Union Fire Insurance Co. of Pittsburgh
D. Maryland · 1996 · signal: see, e.g. · confidence low
See, e.g., Insurance Co. of No. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1217 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981).
discussed Cited "see, e.g." Diocese of Winona v. Interstate Fire & Casualty Co.
D. Minnesota · 1994 · signal: see, e.g. · confidence low
See, e.g., Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1219 (6th Cir.1980), reh’g granted, 657 F.2d 814 (1981), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981), reh’g denied, 455 U.S. 1009 , 102 S.Ct. 1648 , 71 L.Ed.2d 878 (1982).
discussed Cited "see, e.g." American Physicians Insurance Exchange v. Garcia (2×)
Tex. · 1994 · signal: see also · confidence low
Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034 , 1049-50 (D.C.Cir.1981) (emphasis added), cert. denied, 455 U.S. 1007 , 102 S.Ct. 1644 , 71 L.Ed.2d 875 (1982); see also Insurance Co. of N. Am. v. Forty-Eight Insula-tions, 451 F.Supp. 1230, 1243 (E.D.Mich.1978), aff 'd, 633 F.2d 1212 , 1226 n. 28 (6th Cir.1980), aff'd on reh’g, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Air Prods. & Chems., Inc. v. Hartford Accident & Indem.
discussed Cited "see, e.g." Lac D'Amiante du Quebec v. American Home Assurance Co.
3rd Cir. · 1988 · signal: see, e.g. · confidence low
See, e.g., Insurance Co. of N. America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1225 (6th Cir.) (coverage triggered by a claim against insured if asbestos victim was exposed to the insured’s asbestos during the policy period), clarified, 657 F.2d 814 , cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.) (same), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Eagle-Picher Indus., Inc. v. Liberty Mutual Ins.
discussed Cited "see, e.g." Lac D'amiante Du Quebec, Ltee v. American Home Assurance Company
3rd Cir. · 1988 · signal: see, e.g. · confidence low
See, e.g., Insurance Co. of N. America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 , 1225 (6th Cir.) (coverage triggered by a claim against insured if asbestos victim was exposed to the insured's asbestos during the policy period), clarified, 657 F.2d 814 , cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.) (same), cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 L.Ed.2d 650 (1981); Eagle-Picher Indus., Inc. v. Liberty Mutual Ins.
discussed Cited "see, e.g." Westinghouse v. Aetna Cas. & Sur.
N.J. Super. Ct. App. Div. · 1988 · signal: see, e.g. · confidence low
See, e.g., Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F. 2d 1212 (6th Cir.1980), modified, 657 F. 2d 814 , cert. denied, 454 U.S. 1109 , 102 S.Ct. 686 , 70 *513 L.Ed. 2d 650 (1981); American Home Prod.
cited Cited "see, e.g." Acands, Inc. v. The Aetna Casualty and Surety Company, and the Travelers Indemnity Company and the Travelers Insurance Company, Acands, Inc. v. The Aetna Casualty and Surety Company, and the Travelers Indemnity Company and the Travelers Insurance Company
3rd Cir. · 1981 · signal: see also · confidence low
Oct. 1, 1981); see also Insurance Co. of North America v. Forty-Eight Insulations Inc., 451 F.Supp. 1230 (E.D.Mich.1978), aff'd, 633 F.2d 1212 , opinion clarified, 657 F.2d 814 (6th Cir. 1981).
cited Cited "see, e.g." ACandS, Inc. v. Aetna Casualty & Surety Co.
3rd Cir. · 1981 · signal: see also · confidence low
Oct. 1, 1981); see also Insurance Co. of North America v. Forty-Eight Insulations, Inc., 451 F.Supp. 1230 (E.D.Mich.1978), aff’d, 633 F.2d 1212 , opinion clarified, 657 F.2d 814 (6th Cir. 1981).
Retrieving the full opinion text from the archive…
Insurance Co. Of North America
v.
Forty-Eight Insulations, Inc., Cross-Appellant, and Affiliated Fm Insurance Co., Illinois National Insurance Co., Liberty Mutual Insurance Co., and Travelers Indemnity of Rhode Island
78-1322.
Court of Appeals for the Sixth Circuit.
Mar 5, 1981.
657 F.2d 814
Cited by 13 opinions  |  Published

657 F.2d 814

INSURANCE CO. OF NORTH AMERICA, Plaintiff-Appellant,
v.
FORTY-EIGHT INSULATIONS, INC., Defendant-Appellee Cross-Appellant,
and
Affiliated FM Insurance Co., Illinois National Insurance
Co., Liberty Mutual Insurance Co., Defendants-Appellants,
and
Travelers Indemnity of Rhode Island, Defendant-Appellee.

Nos. 78-1322 to 78-1326.

United States Court of Appeals,
Sixth Circuit.

March 5, 1981.

Michael R. Gallagher, Thomas E. Betz, Alan M. Petrov, Gallagher, Sharp, Fulton, Norman & Mollison, Cleveland, Ohio, G. Cameron Buchanan, Buchanan, Ogne & Jinks, Troy, Mich., for plaintiff-appellant.

William C. Murphy, (48 Insulations) Reid, Ochsenschlager, Murphy & Hupp, Richard L. Horwitz, Aurora, Ill., W. Robert Chandler (48 Insulations) Cross, Wrock, Miller & Vieson, Detroit, Mich., for defendant-appellee cross-appellant.

Before KEITH and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.

ORDER

[*~814]1

Less than a majority of the active judges of this court having voted in favor of rehearing en banc, the parties' cross-petitions for rehearing have been referred to the panel for consideration. We grant, in part, the petitions for rehearing.

I.

2

All of the parties have requested that we clarify our opinion, 633 F.2d 1212, regarding its application to mesothelioma and broncheogenic carcinoma. As we indicated in footnote one of our opinion, we pretermitted a discussion of mesothelioma and broncheogenic carcinoma and focused on the disease of asbestosis. The reason for this was that the medical evidence in the record suggested that these diseases were different from asbestosis.

3

Mesothelioma and broncheogenic carcinoma (lung cancer) were dealt with only obliquely in the record, in the district court opinion and in the briefs on appeal. However, the parties are correct that the issue is before us on appeal and that our opinion needs clarification on this point.

4

We conclude that mesothelioma and lung cancer should be treated the same as asbestosis. We reach this conclusion for two reasons. First, the brief discussion in the record about these diseases supports this result. Dr. George Wright testified that recent research tends to show that the development of mesothelioma and lung cancer is linked to inhalation of asbestos and that the development of these diseases is dose-related. In other words, the greater the exposure to asbestos the greater the probability that lung cancer and mesothelioma will develop. It is true that not all persons who breathed in asbestos fibers contract lung cancer and/or mesothelioma. However, as in asbestosis, those persons who contract mesothelioma and lung cancer will have breathed in numerous asbestos fibers over the years.

5

Second, we rely on policy grounds. As Liberty Mutual's Petition for Rehearing reminds us, many of the underlying plaintiffs' complaints against the manufacturers allege both cancer and asbestosis. To treat cancer and asbestosis differently would needlessly complicate settlement and defense of the individual lawsuits. We see no reason to create more difficulties for the parties than already exist in this complicated case.

6

Accordingly, we order that the following language be inserted at the end of footnote one of our opinion:

7

Nonetheless, we conclude that mesothelioma and lung cancer should be treated the same as asbestosis. We reach this conclusion for two reasons. First, the brief discussion in the record about these diseases supports this result. Dr. George Wright testified that recent research tends to show that the development of mesothelioma and lung cancer is linked to inhalation of asbestos and that the development of these diseases is dose-related. In other words, the greater the exposure to asbestos the greater the probability that lung cancer and mesothelioma will develop. It is true that not all persons who breathed in asbestos fibers contract lung cancer and/or mesothelioma. However, as in asbestosis, those persons who contract mesothelioma and lung cancer will have breathed in numerous asbestos fibers over the years.

8

Second, we rely on policy grounds. Many of the underlying plaintiff's complaints against the manufacturers allege both cancer and asbestosis. To treat cancer and asbestosis differently would needlessly complicate settlement and defense of the individual lawsuits. We see no reason to create more difficulties for the parties than already exist in this complicated case.

II.

9

Those companies advancing the manifestation theory have presented no arguments to us that we did not carefully consider beforehand. We continue to believe that both the plain meaning rule of construction and the rule requiring construction of a policy in favor of the insured support the exposure theory. The companies are correct that not all workers exposed to asbestos fibers contract an asbestos related disease. However, for the worker who does contract asbestosis, the bodily injury first occurred when the worker first started breathing asbestos fibers.

III.

10

Forty-Eight, while generally content with our decision, has urged us to reconsider our decision to allocate defense costs the same as liability costs. Forty-Eight claims that we have given an unduly narrow construction to the insurance companies' duty to defend.[1]

11

We adhere to our original position. The exposure theory provides a fair method of allocating insurance coverage. This same method can be readily applied to allocating defense costs as well as liability costs. Where costs can be readily apportioned, as here, it is reasonable to have Forty-Eight pay its fair share of defense costs as well as indemnification costs.

12

Accordingly, the Petitions for Rehearing are granted in part, as outlined above, and otherwise denied.

[*~815]13

MERRITT, Circuit Judge, adheres to the position outlined in his dissenting opinion.

1

In its Petition for Rehearing, Forty-Eight cites as an example the situation where it is initially believed that Forty-Eight's products injured a worker in a year in which Forty-Eight had insurance coverage. If it turns out that Forty-Eight's products injured a worker in a non-covered year, Forty-Eight claims that it will have to pay the full cost of defending the suit. This ignores the presumption outlined in footnote 21 or our opinion under which continued exposure to Forty-Eight's products is presumed for insurance coverage purposes. Forty-Eight will only have to pay full defense indemnity costs if there is strong evidence that exposure to Forty-Eight's products only took place in years when Forty-Eight had no insurance coverage