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ACANDS, INC. v. AETNA CAS. & SUR. CO.

November 25, 1983

ACandS, INC.
v.
THE AETNA CASUALTY AND SURETY COMPANY and THE TRAVELERS INDEMNITY COMPANY and THE TRAVELERS INSURANCE COMPANY



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Three divergent legal theories, each of which has been accepted by a different Circuit Court, are at bar for consideration. In chronological order, the Sixth Circuit has held that the obligations imposed upon insurance companies by the standard comprehensive general liability policy issued to asbestos manufacturers and installers is triggered by a claim that an asbestos victim was exposed to the insured's asbestos-containing products during the policy period. Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1225 (6th Cir. 1980), clarified in part, 657 F.2d 814, cert. denied, 454 U.S. 1109, 102 S. Ct. 686, 70 L. Ed. 2d 650 (1981) (hereinafter Forty-Eight). Thereafter, the District of Columbia Circuit held that coverage is triggered by a claim that a victim was either exposed to asbestos products, suffered exposure in residence1 or manifested an asbestos-related disease during the policy period. Keene Corp. v. Insurance Company of North America, 215 U.S. App. D.C. 156, 667 F.2d 1034, 1047 (D.C. Cir. 1981), cert. denied, 455 U.S. 1007, 102 S. Ct. 1644, 71 L. Ed. 2d 875 (1982) (hereinafter Keene). Finally, the First Circuit concluded that coverage under the identical insurance policy is triggered by a claim that an asbestos disease has manifested itself during the policy period. Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12, 23 (1st Cir. 1982), cert. denied, 460 U.S. 1028, 103 S. Ct. 1279, 75 L. Ed. 2d 500, 51 U.S.L.W. 3650 (1983) (hereinafter Eagle-Picher). These theories as to when insurance coverage is triggered are referred to as the "exposure", "continuous trigger" and "manifestation" theories, respectively. Grimigliano, The Calculus of Insurer Liability in Asbestos Related Litigation, 23 Boston College L.Rev. 1141 (July 1982).

 Currently at bar are the motions of plaintiff, ACandS, and defendant, Travelers, for partial summary judgment. Plaintiff argues that the Keene court properly decided the issues at bar and urges that we adopt its continuous trigger theory. Travelers, on the other hand, claims that the Forty-Eight court correctly decided the identical issue and that we should follow the Sixth Circuit's exposure theory. Finally, defendant, Aetna, believes that genuine issues of material fact exist and that summary disposition is, therefore, inappropriate. *fn2" Fed. R. Civ. P. 56(c).

 We first consider and reject Aetna's contention that this matter is not ripe for summary judgment. The insurance contracts at bar, though ambiguous, do admit to a proper legal interpretation. Moreover, although the precise etiology of asbestos-related diseases is the subject of some dispute, "universal agreement" exists that excessive inhalation of asbestos fibers causes disease. Forty-Eight, 633 F.2d at 1214. Indeed, Judge Giles viewed the factual predicate of the underlying suits as resting upon "simple, uncontroverted and indisputable facts". Commercial Union Insurance Co. v. Pittsburgh Corning Co., 553 F. Supp. 425, 433 (E.D. Pa. 1981). *fn3"

 We must address questions of pleading practice and issue preclusion before considering the type of claim which triggers the obligations undertaken by Aetna and Travelers.

 Defendants argue that plaintiff may not properly seek summary judgment under Keene's continuous trigger theory because the complaint prays for judgment pursuant to Forty-Eight's exposure theory. Specifically, the complaint requests a judgment declaring

 
that each policy of insurance issued by Aetna provides coverage for each and every asbestos-related claim and lawsuit in which there is an allegation of or proof of exposure to asbestos at any time during the policy period;

 (emphasis added). Additionally, defendants point out that the Keene case was decided in October 1981 and that plaintiff has never sought to amend its complaint to include the Keene theory. Plaintiff, countering, essentially admits that the primary legal thrust of its initial pleading was directed toward an "exposure" theory. However, it points out that the original prayer for relief, which sought a declaration that the policies at bar be construed pursuant to an exposure theory, also prayed for "further relief" as the court deemed "just". Continuing, plaintiff contends that under the notice pleading provisions of the federal rules, this latter prayer for relief incorporates the Keene theory.

 Plaintiff's prayer for relief clearly articulated a demand for judgment based upon an "exposure" theory. This does not, however, foreclose a motion for summary judgment based upon a different legal theory. Specifically, Fed. R. Civ. P. 54(c) authorizes entry of final judgment granting relief to which a party is "entitled" even though they failed to "demand[] such relief" in the complaint. In fact, a complaint's prayer for relief neither strictly defines nor necessarily limits the relief which plaintiff may ultimately obtain; rather, the prayer serves only to "illuminate" plaintiff's substantive theory. Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 66, 58 L. Ed. 2d 292, 99 S. Ct. 383 (1978). Omissions contained therein are "not in and of themselves a barrier to redress of a meritorious claim". Id. Thus, it is error for a court to reject a claim merely because it was not pleaded clearly, particularly where, as here, the issue is "thoroughly briefed". Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 708, 714 (8th Cir. 1979). Accord, Shapiro v. Midwest Rubber Reclaiming Co., 626 F.2d 63, 69 (8th Cir. 1980). Accordingly, plaintiff is not precluded from moving for judgment pursuant to Keene's continuous trigger theory even though it failed to specifically so plead in the complaint.

 Plaintiff urges that application of collateral estoppel principles preclude Aetna and Travelers from relitigating the issues decided adversely to them in Keene.4 We disagree. Application of either federal, Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 337-38 (5th Cir. 1982), or state collateral estoppel rules, Public Service Mutual Ins. Co. v. Cohen, 616 F.2d 704, 708 (3d Cir. 1980), yields similar results. Collateral estoppel may not be invoked under federal law where the "judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant". Parklane Housing Co. v. Shore, 439 U.S. 322, 330, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). Likewise, Pennsylvania would bar issue preclusion where "inconsistent results have been obtained against a common defendant embroiled in multiple suits". Amader v. Johns-Manville Corp., 541 F. Supp. 1384, 1385 (E.D. Pa. 1982), interpreting, In Re Estate of Ellis, 460 Pa. 281, 287 n. 7, 333 A.2d 728 (1975).

 In the case at bar, even if Travelers were a party to Keene, it also participated in Commercial Union Ins. Co. v. Pittsburgh Corning Corp., supra, and Forty-Eight. The holding of those cases, that coverage is triggered solely by exposure, is at variance with Keene's continuous trigger holding. Hence, Keene cannot support the application of collateral estoppel as to Travelers. Although Aetna has apparently failed to generate any verdicts which are inconsistent with Keene, we nevertheless conclude that issue preclusion as to it is also unwarranted. Specifically, given the differing views expressed by the appellate courts which have considered the issue, we conclude that application of collateral estoppel as to Aetna would be "unfair". Parklane Hosiery Co. v. Shore, 439 U.S. at 331.

 We now turn to an examination of the major appellate court cases which have considered the issue at bar.


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