Submitted: January 9, 2014
Jennifer C. Wasson, Esquire, Michael B. Rush, Esquire, Potter Anderson & Corroon LLP, Mark A. Packman, Esquire, Gabriel Le Chevallier, Esquire (Argued), Jenna A. Hudson, Esquire, Katrina F. Johnson, Esquire, Gilbert LLP, Attorneys for Plaintiff
Peter B. Ladig, Esquire, Jason C. Jowers, Equire, David J. Soldo, Esquire, Morris James LLP, Alan S. Miller, Esquire (Argued), Bridget M. Gillespie, Esquire, Picadio Sneath Miller & Norton, P.C., Attorneys for Defendant North River Insurance Company
Neal J. Levitsky, Esquire, Seth A. Niederman, Esquire, Fox Rothschild LLP, Daren S. McNally, Esquire (Argued), Barbara M. Almeida, Esquire, Clyde & Co U.S. LLP, Attorneys for Defendant Travelers Casualty and Surety Company
James P. Ruggeri, Esquire, Joshua D. Weinberg, Esquire (Argued), Michele L. Backus, Esquire, Shipman & Goodman LLP, Richard M. Beck, Esquire, Sean M. Brennecke, Esquire, Klehr, Harrison, Harvey, Branzburg & Ellers LLP, Attorneys for Defendants Hartford Accident and Indemnity Company, First State Insurance Company, and Twin City Fire Insurance Company
MARY M. JOHNSTON JUDGE
FACTUAL AND PROCEDURAL CONTEXT
Plaintiff Mine Safety Appliances Company ("MSA"), a Pennsylvania corporation licensed to do business in Delaware, manufactures and sells safety equipment, including heat protection clothing and respirators. Allegedly, at one time, MSA's respirators were defective and its heat protection clothing contained asbestos. Users of MSA's safety products have filed thousands of actions against MSA, claiming that, as a result of using MSA's products, they were exposed to asbestos, silica, and coal dust, and suffered injuries.
MSA purchased liability insurance coverage to protect itself from a variety of risks, including potential tort liability. MSA purchased insurance in layers with an escalation in policy limits, in an effort to ensure that it would have sufficient coverage should any policy be exhausted or otherwise become unavailable. MSA contends that it is covered for personal injury damages under the excess coverage policies it had purchased.
Defendant insurance companies dispute their obligations to cover tort claims against MSA ("Underlying Claims"). The Underlying Claims arose out of harm suffered by the users of MSA's products. MSA has incurred significant financial expense in defending and settling the Underlying Claims. MSA filed the Delaware action on July 26, 2010, against 31 insurance companies, concerning 125 insurance policies. MSA seeks: (1) declaratory judgment that the Defendant insurance companies are obligated to defend and/or indemnify MSA; and (2) an award of monetary damages incurred by MSA relating to MSA's entitlement to coverage.
MSA filed this Motion for Partial Summary Judgment on September 18, 2013. MSA seeks a declaration that the "expected/intended" provision in the policies issued by Defendants North River Insurance Company ("North River"), Hartford Accident and Indemnity Company, First State Insurance Company, Twin City Fire Insurance Company (collectively, "Hartford"), and Travelers Casualty and Surety Company ("Travelers") does not apply to losses arising from the use of MSA's allegedly defective respirators.
STANDARD OF REVIEW
Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law. All facts are viewed in a light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances. When the facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law. If the non-moving party bears the burden of proof at trial, yet "fails to make a showing sufficient to establish the existence of an element essential to that party's case, " then summary judgment may be granted against that party.
Burden of Proof
Defendants issued policies to MSA that provide coverage for an "occurrence." In substantively similar terms, Defendants' policies define an "occurrence" as an accident, including continuous and repeated exposure to conditions, resulting in bodily injury, which is neither expected nor intended by the insured ("expected/intended provision"). The Court must determine which party ...