Jones v. Liberty Mutual Ins ( 2004 )

FILED: November 15, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-2389(L)
(CA-94-2327-PJM)
In Re: THE WALLACE & GALE COMPANY
Debtor
-------------------------
ROY E. JONES; ANDREW R. YOUNGBAR; LOUISE HOLCOMB,
Personal Representative of the Estate of Cossie Holcomb; ROBERT
M. BARBER, Personal Representative of the Estate of Milton
Barber
Intervenors/Plaintiffs - Appellants
versus
LIBERTY MUTUAL INSURANCE COMPANY; HARTFORD
INSURANCE COMPANY; CONTINENTAL CASUALTY
COMPANY; ADRIATIC INSURANCE COMPANY; ST. PAUL
FIRE & MARINE INSURANCE COMPANY; GRANITE STATE
INSURANCE COMPANY; NEW HAMPSHIRE INSURANCE
COMPANY; TRAVELERS CASUALTY AND SURETY
COMPANY
Defendants - Appellees
and
THE WALLACE & GALE COMPANY; MAYOR OF
BALTIMORE; CITY COUNCIL OF BALTIMORE CITY;
AMERICAN EMPLOYERS INSURANCE COMPANY;
INTERNATIONAL INSURANCE COMPANY;
Defendants
THE AETNA CASUALTY AND SURETY COMPANY
Intervenor/Defendant
-------------------------
PORTER HAYDEN COMPANY; OFFICIAL COMMITTEE OF
UNSECURED, CREDITORS, of Porter-Hayden; OFFICIAL
COMMITTEE OF UNSECURED CREDITORS, of ACandS,
Incorporated; ACANDS, INCORPORATED; JT THORPE
COMPANY; CELOTEX ASBESTOS SETTLEMENT TRUST;
Amici Supporting Appellant
COMPLEX INSURANCE CLAIMS LITIGATION ASSOCIATION;
THE AMERICAN INSURANCE ASSOCIATION; CERTAIN
UNDERWRITERS AT LLOYD'S, LONDON
Amici Supporting Appellee
.
ORDER
Intervenors-Appellants have filed a petition for rehearing and rehearing en banc. Appellant
Travelers Casualty and Surety Company has filed a motion to amend the opinion.
The appellants’ petition for rehearing and rehearing en banc was submitted to this Court. As
no member of this Court or the panel requested a poll on the petition for rehearing en banc, and
2
As the panel considered the petition for rehearing and is of the opinion that it should be
denied,
IT IS ORDERED that the petition for rehearing and rehearing en banc is denied.
It is ORDERED that footnote 3 on page 25 of the printed slip opinion is amended to read as
follows:
The intervenors have urged us to refer to the Maryland Court of Appeals the
questions of Maryland law involved in this case, while Travelers has opposed such
action. We decline so to do. Indeed, the arguments of each to the district court were
the opposite, as Travelers proposed that the district court certify the “allocation” issue
to the Maryland Court of Appeals, and the intervenors opposed certification at that
time. (Intervenors’ br. p.54, Travelers’ br. p.29, JA p.1446, 1451).
Entered at the direction of Judge Widener, with the concurrence of Judge Duncan and Judge
Michael.
For the Court
/s/ Patricia S. Connor
Clerk
3
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: THE WALLACE & GALE 
COMPANY,
Debtor.
ROY E. JONES; ANDREW R.
YOUNGBAR; LOUISE HOLCOMB,
Personal Representative of the
Estate of Cossie Holcomb; ROBERT
M. BARBER, Personal Representative
of the Estate of Milton Barber,
Intervenors-Plaintiffs-
Appellants,
v.
LIBERTY MUTUAL INSURANCE  No. 02-2389
COMPANY; HARTFORD INSURANCE
COMPANY; CONTINENTAL CASUALTY
COMPANY; ADRIATIC INSURANCE
COMPANY; ST. PAUL FIRE & MARINE
INSURANCE COMPANY; GRANITE STATE
INSURANCE COMPANY; NEW
HAMPSHIRE INSURANCE COMPANY;
TRAVELERS CASUALTY AND SURETY
COMPANY,
Defendants-Appellees,
and
THE WALLACE & GALE COMPANY;
MAYOR OF BALTIMORE; CITY
COUNCIL OF BALTIMORE CITY;

2 IN RE: THE WALLACE & GALE COMPANY
AMERICAN EMPLOYERS INSURANCE 
COMPANY; INTERNATIONAL INSURANCE
COMPANY,
Defendants,
THE AETNA CASUALTY AND SURETY
COMPANY,
Intervenor-Defendant.
PORTER HAYDEN COMPANY; OFFICIAL
COMMITTEE OF UNSECURED CREDITORS
of Porter Hayden; OFFICIAL
COMMITTEE OF UNSECURED CREDITORS 
of ACandS, Incorporated; ACANDS,
INCORPORATED; JT THORPE COMPANY;
CELOTEX ASBESTOS SETTLEMENT
TRUST,
Amici Supporting Appellant.
COMPLEX INSURANCE CLAIMS
LITIGATION ASSOCIATION; THE
AMERICAN INSURANCE ASSOCIATION;
CERTAIN UNDERWRITERS AT LLOYD’S,
LONDON,
Amici Supporting Appellee.

IN RE: THE WALLACE & GALE COMPANY 3
In Re: THE WALLACE & GALE 
COMPANY,
Debtor.
ROY E. JONES; ANDREW R.
YOUNGBAR; LOUISE HOLCOMB,
Personal Representative of the
Estate of Cossie Holcomb; ROBERT
M. BARBER, Personal Representative
of the Estate of Milton Barber,
Intervenors-Plaintiffs,
v.
TRAVELERS CASUALTY AND SURETY
COMPANY,
Defendant-Appellant,  No. 02-2427
v.
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant-Appellee,
and
THE WALLACE & GALE COMPANY;
MAYOR OF BALTIMORE; CITY
COUNCIL OF BALTIMORE CITY;
HARTFORD INSURANCE COMPANY;
CNA-CONTINENTAL CASUALTY
COMPANY; ADRIATIC INSURANCE
COMPANY; ST. PAUL FIRE & MARINE
INSURANCE COMPANY; AMERICAN
EMPLOYERS INSURANCE COMPANY;

4 IN RE: THE WALLACE & GALE COMPANY
INTERNATIONAL INSURANCE COMPANY; 
GRANITE STATE INSURANCE COMPANY;
NEW HAMPSHIRE INSURANCE

COMPANY,
Defendants,
THE AETNA CASUALTY AND SURETY
COMPANY,
Intervenor-Defendant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-2327-PJM; BK-85-0092; AP-94-1784)
Argued: October 30, 2003
Decided: October 6, 2004
Before WIDENER and DUNCAN, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Duncan and Senior Judge Michael concurred.
COUNSEL
ARGUED: Mark Herbert Kolman, DICKSTEIN, SHAPIRO,
MORIN & OSHINSKY, L.L.P., Washington, D.C., for Appellants.
Lee Hedgecock Ogburn, KRAMON & GRAHAM, P.A., Baltimore,
Maryland; William Judkins Bowman, HOGAN & HARTSON,
L.L.P., Washington, D.C.; Robert L. Hoegle, CARTER, LEDYARD
& MILBURN, L.L.P., Washington, D.C., for Appellees. ON BRIEF:
IN RE: THE WALLACE & GALE COMPANY 5
Jerold Oshinsky, Katherine J. Henry, DICKSTEIN, SHAPIRO,
MORIN & OSHINSKY, L.L.P., Washington, D.C.; James R. Mat-
thews, KEATING, MUETHING & KLEKAMP, L.L.P., Cincinnati,
Ohio, for Appellants. Steven M. Klepper, KRAMON & GRAHAM,
P.A., Baltimore, Maryland; Jonathan S. Franklin, HOGAN & HART-
SON, L.L.P., Washington, D.C.; Harry Lee, STEPTOE & JOHN-
SON, L.L.P., Washington, D.C.; David M. Rice, Laurie J. Hepler,
CARROLL, BURDICK & MCDONOUGH, L.L.P., San Francisco,
California; Robert M. Wright, William P. Pearce, WHITEFORD,
TAYLOR & PRESTON, L.L.P., Baltimore, Maryland; Mary S.
Diemer, CARTER, LEDYARD & MILBURN, L.L.P., Washington,
D.C., for Appellees. Marc S. Mayerson, Robert E. Johnston,
SPRIGGS & HOLLINGSWORTH, Washington, D.C., for Amicus
Curiae Porter Hayden. Philip E. Milch, CAMPBELL & LEVINE,
L.L.C., Pittsburgh, Pennsylvania, for Amicus Curiae Creditors of Por-
ter Hayden. Armand J. Volta, Jr., LAW OFFICES OF PETER G.
ANGELOS, Baltimore, Maryland, for Amicus Curiae Creditors of
ACandS. Mark A. Packman, Joel E. Greer, GILBERT, HEINTZ &
RANDOLPH, L.L.P., Washington, D.C., for Amici Curiae ACandS,
et al. Laura A. Foggan, John C. Yang, Amy K. Graham, WILEY,
REIN & FIELDING, L.L.P., Washington, D.C., for Amici Curiae
Insurance Litigation Association, et al. Thomas J. Quinn, Stephen T.
Roberts, MENDES & MOUNT, L.L.P., New York, New York, for
Amici Curiae Lloyd’s, et al.
OPINION
WIDENER, Circuit Judge:
This appeal concerns insurers’ liability for asbestos-related bodily
injuries. The intervenors appeal from the district court’s decision
adopting what is called the pro-rata rule of Mayor & City Council of
Baltimore v. Utica Mutual Insurance Co., 802 A.2d 1070 (Md. Ct.
Spec. App. 2002), and holding that the intervenors’ claims are subject
to an aggregate limit by reason of the "completed operations" provi-
sions of the insurance policies. We affirm.
I.
The intervenors in this case are four former employees or personal
representatives of former employees of the Bethlehem Steel plant
6 IN RE: THE WALLACE & GALE COMPANY
located in Baltimore, Maryland. The intervenors claim that they were
injured by asbestos that was installed by Wallace & Gale Company.
Wallace & Gale was an insulation contractor that installed asbestos-
containing products for different businesses including Bethlehem
Steel. In the early 1970’s, Wallace & Gale halted its use of asbestos-
containing products due to safety and health concerns. Wallace &
Gale filed for bankruptcy in 1984, and numerous claimants, including
the intervenors, have filed proofs of claim against Wallace & Gale for
asbestos-related injuries.
During the time it installed asbestos-containing products, Wallace
& Gale purchased comprehensive general liability insurance policies
and excess liability insurance policies from the following insurers,
Aetna Casualty & Surety Company, now known as Travelers Casu-
alty & Surety Company (Travelers); Hartford Accident and Indemnity
Company (Hartford); St. Paul Fire and Marine Insurance Company
(St. Paul); Granite State Insurance Company (Granite); Continental
Casualty Company (Continental); Riunione Adriatica Di Sicurta
(Riunione); and New Hampshire Insurance Company (New Hamp-
shire).1 (JA 1445, 1541-1547, 1549, 1560, 1577, 1592, 1607, 1622,
1
Wallace & Gale maintained the following liability insurance policies
from 1962 until 1985.
Primary Policies:
Aggregate
Aggregate limit for
limit for products/
operations/ completed
Dates of negligence operations
Insurer Coverage claims claims
Travelers 1/1/62-1/1/63 None minimum of
$25,000
Travelers 1/1/63-1/1/64 None minimum of
$25,000
Travelers 1/1/64-1/1/65 None minimum of
$25,000
Travelers 1/1/65-1/1/66 None minimum of
$25,000
Travelers 1/1/66-1/1/67 None $1,000,000
Travelers 1/1/67-1/1/68 None $1,000,000
IN RE: THE WALLACE & GALE COMPANY 7
1637, 1652, 1682, 1717, 1750, 1787, 1841, 1878, 1894, 1921-1924,
191-1982, 2001-2002, 2007, 2033, 2095, 2111, 2145-2146, 2245-
2547, 2549, 2574, 2606, 2619, 3325-3327) Under the plan adopted by
the bankruptcy court, the proceeds from the insurance policies will be
used to fund a trust to handle asbestos injury claims filed against Wal-
lace & Gale. The amount that the insurers will be required to contrib-
ute to the trust depends on the interpretation of the insurance contracts
and the outcome of this litigation.
II.
In 1994, Travelers filed a declaratory judgment action, by way of
an adversary proceeding within the Chapter 11 Bankruptcy case of
Wallace & Gale against Wallace & Gale, the Mayor and City Council
of Baltimore, and Wallace & Gale’s other insurers. Travelers sought
a judicial determination of the applicability and extent of coverage of
Travelers 1/1/68-1/1/69 None $1,000,000
Travelers 1/1/69-1/1/70 None $1,000,000
Travelers 1/1/70-1/1/71 None $1,000,000
Travelers 1/1/71-1/1/72 None $1,000,000
Travelers 1/1/72-1/1/73 None $1,000,000
Travelers 1/1/73-1/1/74 None $1,000,000
Travelers 1/1/74-1/1/75 None $1,000,000
Travelers 1/1/75-1/1/76 None $1,000,000
Travelers 1/1/76-1/1/77 None $1,000,000
Travelers 1/1/77-1/1/78 None $1,000,000
Travelers 1/1/78-1/1/79 None $1,000,000
Travelers 1/1/79-1/1/80 None $1,000,000
Hartford 1/1/80-1/1/81 None $500,000
Hartford 1/1/81-1/1/82 None $500,000
St. Paul 1/1/82-1/1/83 None $1,000,000
St. Paul 1/1/83-4/1/83 None $1,000,000
Granite 9/30/84-1/24/85 $500,000 $500,000
Excess policies:
Continental 1/1/80-1/1/81 $1,000,000 $1,000,000
Riunione 1/1/81-1/1/82 None $500,000
St. Paul 1/1/82-1/1/83 None $3,000,000
St. Paul 1/1/83-4/1/83 None $3,000,000
New Hampshire 9/30/84-1/25/85 $1,000,000 $1,000,000
8 IN RE: THE WALLACE & GALE COMPANY
insurance policies issued by Wallace & Gale’s insurers. Through this
action, Travelers sought to determine the extent of its liability, and the
liability of other Wallace & Gale insurers, in a lawsuit brought against
Wallace & Gale by the Mayor and City Council of Baltimore.
In March of 1995, the intervenors moved to intervene in the declar-
atory judgment action. The district court granted the motion. Before
disposition of the claims of the intervenors, the claims brought by the
Mayor and City Council of Baltimore settled. The intervenors’ first
amended complaint of December 29, 1999, raised two issues that are
the subject of this appeal. In their first amended complaint, the plain-
tiffs raised the first issue by seeking a declaration
[t]hat each Policy triggered has an obligation to defend and
indemnify Wallace & Gale for the full value of each individ-
ual claimant’s damages subject only to the "per person" and
"per occurrence" limits of those policies.
By seeking this declaration, the intervenors contended that the insur-
ers are liable for "all sums" that are payable on asbestos claims for
which Wallace & Gale is liable. Second, the intervenors asserted that
their claims are not subject to the aggregate limit of the policies under
the "general liability, negligence or other claims" provisions in the
policies. We may refer to these two issues as the all sums or alloca-
tion issue and the completed operations issue in this opinion.
In response, the Wallace & Gale insurers argued that they are only
liable under the comprehensive general liability insurance policies to
pay for bodily injury that occurs during the policy period. Under this
"pro rata" argument, the Wallace & Gale insurers would be liable
only for a pro rata portion of the bodily injury that occurred during
the time each insurer’s policy was in place. For any bodily injury
occurring during a time when the insured was self-insured or when
the insured’s policy contained, for example, an exclusion for the type
of injury suffered by the intervenors, the insured would bear the risk
of liability. On the completed operations issue, the Wallace & Gale
insurers asserted that any injuries that occurred after Wallace & Gale
completed its installation work with asbestos were subject to the
aggregate limits of the policies under the completed operations hazard
clauses in the policies.
IN RE: THE WALLACE & GALE COMPANY 9
In March of 2001, the intervenors filed a motion for summary judg-
ment, and the Wallace & Gale insurers countered with a cross motion
for summary judgment in April of 2001. The district court held a
hearing on the motions for summary judgment on June 11, 2001. By
their summary judgment motions, the parties sought a judicial deter-
mination of whether, as a matter of law, the Wallace & Gale insurers’
exposure to the claims of the intervenors was limited by either the pro
rata allocation of liability or the aggregate limits of liability triggered
by the completed operations clauses in the insurance contracts. The
district court took the motions under advisement at the conclusion of
the hearing.
In February of 2002, the district court issued its opinion on the
motions for summary judgment. See Aetna Cas. & Sur. Co. v. Wal-
lace & Gale Co. (In re Wallace & Gale Co.), 275 B.R. 223 (D. Md.
2002). The district court noted that Maryland had "yet to speak defini-
tively to the question" of allocation and, accepting for argument that,
in its opinion, both the Wallace & Gale insurers and the plaintiffs pre-
sented "reasonable readings to the language of the policies," deter-
mined that the "tie" must go in favor of the insured, meaning the
intervenors. The district court held
that if a claimant was initially exposed to asbestos while
Wallace & Gale was on the job, the insurer whose policy
was in place at that time and each insurer thereafter will be
obliged to pay "all sums" Wallace & Gale becomes legally
obligated to pay that claimant as damages. Consequently,
there will be no pro rata allocation nor any allocation to
Wallace & Gale for any period of the progressive damage
during which it may have lacked insurance.
275 B.R. 236.
Turning to the completed operations issue, the district court agreed
with the Wallace & Gale insurers that the claims of Bethlehem steel
workers who were exposed initially to asbestos after Wallace & Gale
completed asbestos installation would be subject to the aggregate lia-
bility limits of the insurance policies.
If a claimant’s initial exposure occurred while Wallace &
Gale was still conducting operations, policies in effect at
10 IN RE: THE WALLACE & GALE COMPANY
that time will not be subject to any aggregate limit. If, how-
ever, initial exposure is shown to have occurred after opera-
tions were concluded or if exposure that began during
operations continued after operations were complete, then
the aggregate limits of any policy that came into effect after
operations were complete will apply. Where a given claim-
ant falls within this framework will have to be considered
on a case-by-case basis.
275 B.R. 241. As a result, the insurers who issued general liability
policies to Wallace & Gale for time periods wholly after Wallace &
Gale completed its asbestos installation work will only be liable to the
extent of the aggregate limit contained in the policy. 275 B.R. 250.
Policies issued to Wallace & Gale for time periods in which Wallace
& Gale was installing asbestos will not be subject to the aggregate
limit of liability contained in the policies. In sum, the district court
granted the intervenors’ motion for summary judgment as to the allo-
cation issue and granted Travelers’ motion for summary judgment as
to the completed operations issue. 275 B.R. 250.
The district court filed its decision on February 20, 2002. 275 B.R.
223. In its ruling, the district court also denied a motion for summary
judgment filed by Travelers in which Travelers argued that insuffi-
cient evidence existed as a matter of law to prove that Travelers did
issue comprehensive general liability insurance policies to Wallace &
Gale for the years 1962 to 1965. See In re Wallace & Gale, 275 B.R.
at 241-44. The case proceeded to a bench trial on this issue of the lost
policies for the years 1962 to 1965. After a bench trial, the district
court decided that there was sufficient evidence to enforce the Travel-
ers policies for the years 1962-1965.
Based on the district court’s decision that the policies for the years
1962 to 1965 were enforceable, Travelers filed a motion for leave to
file a cross-claim or, in the alternative, a third-party complaint against
Liberty Mutual Insurance Company on June 7, 2002. The theory
behind Travelers’ motion was that the district court had previously
decided that there was insufficient evidence to enforce policies issued
to Wallace & Gale by Liberty Mutual for the years 1959 to 1962
which had been lost over the years. Travelers argued that the evidence
which supported the district court’s conclusion that Travelers’ 1962
IN RE: THE WALLACE & GALE COMPANY 11
to 1965 policies could be enforced was "essentially equivalent to evi-
dence which should support the conclusion that the 1959 to 1962 Lib-
erty Mutual policies should be enforced." Travelers contended that
even if it might be liable for defense costs and indemnity costs for
bodily injuries for the 1959-1962 years, Liberty Mutual should "con-
tribute its share to the defense and indemnity costs incurred by the
other insurers."
During the time this case was awaiting a resolution on Travelers’
motion, the Maryland Court of Special Appeals on July 2, 2002,
issued its ruling in Mayor & City Council of Baltimore v. Utica
Mutual Insurance Co., 802 A.2d 1070 (Md. Ct. Spec. App. 2002). In
Utica Mutual, the Court of Special Appeals adopted as the law of
Maryland the pro rata allocation theory advanced by Travelers. See
802 A.2d at 1101-1102. The Utica Mutual court held
that (1) the obligation to indemnify the insured under the
circumstances of this case, which involves continuing asbes-
tos product property damage, is to be prorated among all
carriers based on their time on the risk, (2) the "joint and
several" or "all sums" allocation method is incompatible
with the injury-in-fact/continuing trigger that is applicable
to the case at bar, (3) an insured who elects not to carry lia-
bility insurance for a period of time, either by electing to be
self-insured, or by purchasing a policy which withholds cov-
erage pursuant to a particular exclusion, as in the case of the
products hazard exclusions found in this case, will be liable
for the prorated share that corresponds to periods of self-
insurance or no coverage . . . .
802 A.2d 1101-1102. Travelers asked the district court to reconsider
its February 20, 2002 ruling adopting the all sums allocation approach
in light of the decision of the Maryland Court of Special Appeals in
Utica Mutual.
On September 18, 2002, the district court granted Travelers’
motion to reconsider the district court’s ruling on the allocation issue.
See Aetna Cas. & Sur. Co. v. Wallace & Gale, Co. (In re Wallace &
Gale Co.), 284 B.R. 557 (D. Md. 2002). The district court concluded
that the Court of Special Appeals’ opinion in Utica Mutual governed
12 IN RE: THE WALLACE & GALE COMPANY
the dispute over allocation between the plaintiffs and Travelers and
determined that no persuasive data had been offered to demonstrate
that the Maryland Court of Appeals would reach a decision contrary
to the Utica Mutual opinion. 284 B.R. at 559. Applying Utica Mutual,
the district court adopted the pro rata allocation approach and con-
cluded that Wallace & Gale "will be responsible for a prorated share
for any period in which it may have been uninsured." 284 B.R. at 559.
Other than the allocation issue, the district court did not reconsider
any other issues covered in the February 20, 2002 opinion. 284 B.R.
at 559.
Also on September 19, 2002, the district court determined that
Travelers’ motion for leave to file a cross-claim or, in the alternative,
a third-party complaint against Liberty Mutual was moot. Under the
pro-rata allocation method, Travelers would not be liable for any bod-
ily injuries that occurred during a period of time when it did not pro-
vide comprehensive general liability insurance to Wallace & Gale.
The district court issued its final order of judgment on October 28,
2002. The district court denied the plaintiffs’ motion for summary
judgment. The district court granted Travelers’ motion for summary
judgment on the allocation issue and adopted the pro rata allocation
analysis embraced by the Maryland Court of Special Appeals in Utica
Mutual. The district court also ordered that insurance policies in
effect "in whole or part while Wallace & Gale was engaged in the
asbestos installation operation during which the claimant was exposed
shall not be subject to aggregate limits as set forth in the policies."
Bodily injury claims brought by claimants exposed to asbestos after
Wallace & Gale completed its asbestos installation operations shall be
subject to the aggregate limits of insurance policies in effect wholly
after Wallace & Gale halted asbestos installation operations.
The intervenors appeal from the district court’s final order denying
their motion for summary judgment, granting Travelers’ motion for
summary judgment, and granting Travelers’ motion for reconsidera-
tion. We have jurisdiction to entertain the appeal of the intervenors
from denial of their motion for summary judgment under Marathon
v. County of Chesterfield, Virginia, 95 F.3d 1263, 1265 (4th Cir.
1996).
IN RE: THE WALLACE & GALE COMPANY 13
III.
We review de novo the district court’s order awarding summary
judgment. See State Auto Prop. & Cas. Ins. Co. v. Travelers Indem.
Co. of Am., 343 F.3d 249, 254 (4th Cir. 2003). We construe the facts
of the case in the light most favorable to the non-moving party. 343
F.3d at 254. Summary judgment is appropriate where there is no gen-
uine issue of material fact and the moving party is entitled to judg-
ment as a matter of law. See Fed. R. Civ. P. 56(c). We should uphold
an award of summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to a judgment as a matter
of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The remainder of this opinion must be set against the Maryland
requirement for causation of damages in such asbestos personal injury
cases, as is set forth in the opinion of the district court:
Maryland courts have held that asbestos-related injury
begins with exposure, carries forward while the asbestos
fibers are in residence and continues through to manifesta-
tion of the disease. The parties, moreover, have stipulated
that it cannot be said with certainty when injury actually
occurs or to what degree. Quite possibly, therefore, actual
injury could occur in whole or part during any one or more
policy periods, including those coming after Wallace &
Gale completed its operations.
In re: Wallace & Gale Co., 275 Br. 223, 238 (D.Md 2002). It is at
once apparent that the definition employed by the district court
included the stipulation of the parties, a part of which follows:
Bodily injury and disease caused by asbestos, including
asbestos-caused cancers and non-cancerous asbestos-caused
diseases, are the cause of a cumulative process that begins
immediately upon initial inhalation of asbestos fibers, con-
tinues while the asbestos fibers remain in residence inside
the body and continues through the manifestation of the
asbestos-related disease.
14 IN RE: THE WALLACE & GALE COMPANY
IV.
A.
Turning first to the allocation or all sums issue, however the same
may be called, the parties agree on the policy language from the gen-
eral comprehensive liability policies that applies to the question of
allocation. The language of the standard form general comprehensive
liability insurance policies purchased by Wallace & Gale from 1962
until 1984 is similar:
The company will pay on behalf of the insured all sums
which the insured shall become legally obligated to pay as
damages because of
bodily injury or
property damage
to which this insurance applies, caused by an occurrence
....
In their brief, the intervenors use the Travelers policy from 1973 as
the model for the remaining policies.
The 1973 Travelers policy language is cited above. Under the pol-
icy, "bodily injury" is defined as
bodily injury, sickness or disease sustained by any person
which occurs during the policy period, including death at
any time resulting therefrom.
"Occurrence" is defined as
an accident, including continuous or repeated exposure to
conditions, which results in bodily injury or property dam-
age neither expected nor intended from the standpoint of the
insured.
Under this policy language, the intervenors contend that
the insuring agreement and the definitions show that for
those claims against Wallace & Gale that trigger insurance
IN RE: THE WALLACE & GALE COMPANY 15
coverage (because at least some portion of the claimant’s
bodily injury happened during the policy period), the
[p]olicies’ insuring agreements promise insurance coverage
for Wallace & Gale’s total liability - "all sums" - whether
or not some portion of the bodily injury continues past the
policy period.
(Brief at 4)
Because this case is an adversary proceeding brought under the
bankruptcy jurisdiction, 28 U.S.C. § 1334, as a case arising out of or
related to the Chapter 11 bankruptcy of Wallace & Gale, the rule
which we apply in ascertainment of the law to be applied with respect
to the various positions of the parties to this appeal is that expressed
in Butner v. United States, 440 U.S. 48 (1979) in which the Court, in
a bankruptcy case with respect to the determination of property rights
concerning a North Carolina mortgage, reasoned that:
Apart from these provisions [none applicable here], how-
ever, Congress has generally left the determination of prop-
erty rights in the assets of a bankrupt’s estate to state law.
440 U.S. at 54.
The Court continued:
Property interests are created and defined by state law.
Unless some federal interest requires some different result,
there is no reason why such interests should be analyzed dif-
ferently simply because an interested party is involved in a
bankruptcy proceeding. 440 US. at 55.
To quote a little out of context, but with the meaning of the Court
intact: ". . . the basic federal rule is that state law governs." 440 U.S.
at 57.
The property interests involved here are the rights of the insurance
companies to have their obligations for payment ascertained and, as
well, the rights of the intervenors to have their claims against the
bankrupt estate considered for payment and satisfaction. The interve-
16 IN RE: THE WALLACE & GALE COMPANY
nors’ right to collect for bodily injuries from the insurance companies
is regulated under Maryland statute § 19-102, and, as well, we safely
assume at least some, even if not all, of their claims for personal
injury arise under state law, as illustrated by the fact the ascertainment
of causation of asbestos injuries is admittedly under Maryland law.
While Butner was decided under the provisions of the Bankruptcy
Act, which has been superceded by the Bankruptcy Code, Butner’s
holding has also been applied to cases decided under the Bankruptcy
Code. And the cases following Butner are quite on point with the fact
situation present in the case at hand. Cases in this circuit on point with
a determination of property interest by application of state law follow:
In re: Merritt Dredging, 839 F.2d 203, 205 (4th Cir. 1988) (interest
of the bankrupt in the charter party of a barge); Gray v. Snyder, 704
F.2d 709, 712, n.3 (4th Cir. 1983) (bankrupt’s obligation to support
under North Carolina law); Steyr-Daimler-Puch of America Corp. v.
Pappas, 852 F.2d 132, 135 (4th Cir. 1988) (alter-ego claims under
Virginia law of a Chapter 7 bankrupt corporation); In re: Ballard, 65
F.3d 367, 371 (4th Cir. 1995) (entireties interest in realty of surviving
spouses); American Bankers Ins. Co. of Florida v. Maness Honda
Auto, 101 F.3d 358, 362 (4th Cir. 1996) (debtors’ homeowners insur-
ance policy); In re: Dameron, 155 F.3d 718, 722 (4th Cir. 1998)
(interest of a debtor trustee in the corpus of his trust); In re: Shearin,
224 F.3d 346, 349 (4th Cir. 2000) (interest of a debtor in a law firm);
In re: Moffett, 356 F.3d 518, 521 (4th Cir. 2004) (interest of a Chapter
11 debtor in a repossessed used 1998 Honda auto).
No federal interest has been suggested to us or has come to our
attention which requires some different result. Butner, 440 U.S. at 55.
So the law of Maryland is the applicable law we apply in this case.
B.
As noted, on February 20, 2002, the district court filed its opinion
adopting the all sums theory of the case sought by the intervenors, In
re: Wallace & Gale Co., 275 B.R. 223, 236 (D. Md. 2002). On July
2, 2002, however, the Maryland Court of Special Appeals, in Mayor
and City Council of Baltimore v. Utica Mutual Insurance Company,
802 A.2d 1070 (Md. App. 2002), an asbestos case, adopted the theory
of a pro rata allocation by time on the risk, as advocated here by Trav-
IN RE: THE WALLACE & GALE COMPANY 17
elers, and rejected the all sums theory advocated by the intervenors.
On September 18, 2002, the district court corrected its February 20,
2002 decision, 275 B.R. 223, and followed Utica Mutual in In re:
Wallace & Gale Co., 284 BR. 557 (D.Md. 2002). It is from those
decisions that the intervenors appeal, the principal ground of their
appeal being the correctness of that decision adopting the pro-rata the-
ory by time on the risk as the law of Maryland. Other than the ques-
tion of allocation, the decision of February 20, 2002, 275 B.R. 223,
was not changed.
The intervenors object to the adoption of Utica Mutual on a num-
ber of grounds.
The first objection is that the Maryland Court of Appeals had
granted a petition for certiorari in the Utica Mutual case itself, but the
petition for certiorari was not acted upon because the parties settled
the case prior to decision. That same reason for not following a deci-
sion of the Maryland Court of Special Appeals was considered by this
court in Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997 (4th Cir.
1998), when the question on appeal was the same as here, whether to
follow a decision of the Maryland Court of Special Appeals. This
court, in that case, followed the Court of Special Appeals, quoting
West v. AT&T, 311 U.S. 223, 237 (1940) deciding that:
[w]here an intermediate appellate state court rests its consid-
ered judgment upon the rule of law which it announces, that
is a datum for ascertaining state law which is not to be disre-
garded by a federal court unless it is convinced by other per-
suasive data that the highest court of the state would decide
otherwise. 160 F.3d at 1002.2
2
While West and Assizurazioni are diversity cases, the ascertainment
of what the law of a State is, and how to ascertain the same, should be
persuasive, even if not controlling, in this bankruptcy case. At this point
we note that the Supreme Court has indicated, in at least one review of
a decision of this court, that it was not disposed to displace the consid-
ered judgment of this court of appeals on an issue whose resolution is so
heavily contingent upon an analysis of state law, Runyon v. McCrary,
427 U.S. 160, 181 (1976), and was hesitant to overrule its decision by
a federal court skilled in the law of particular State unless its conclusions
were shown to be unreasonable in Bishop v. Wood, 426 U.S. 341, 346,
n.10 (1976).
18 IN RE: THE WALLACE & GALE COMPANY
Assicurazioni decided that the grant of certiorari by the Maryland
Court of Appeals under the same circumstances present here did not
constitute persuasive data that the Maryland Court of Appeals would
choose not to follow the decision of the intermediate appellate court.
The district court, in Assicurazioni, had also relied on what it called
common sense or what ought to be the law. We held that those rea-
sons also did not constitute persuasive data permitting us to ignore the
holding of the Maryland Court of Special Appeals. We equate those
last reasons as there phrased by the district court to the argument
made here by intervenors, that a majority of the States have adopted
the rule of all sums rather than the pro rata rule. The opposite claim
as to a majority is made by the insurers. Which view is the numerical
majority is a matter we need not decide.
Assicurazioni held that a federal court can depart from an interme-
diate court’s fully reasoned holding as to state law only if "convinced"
that the State’s highest court would not follow that holding. Assicura-
zioni, 160 F.3d at 1001. In that respect, the intervenors also argue that
the case of Mitchell v. Maryland Casualty, 595 A.2d 469 (Md. 1991)
is contrary to Utica Mutual and indicates that the Court of Appeals
would not follow the pro rata rule of Utica Mutual. Mitchell was an
asbestos bodily injury case with respect to the triggering of insurance
coverage under a comprehensive general liability policy similar to
those involved here. The trial court in that case held that insurance
coverage was provided only after an asbestos-related injury had
become manifest, which holding was reversed, the Court stating that
defense and indemnification of the insured is triggered upon exposure
to the insured’s asbestos products during the policy period by a per-
son who suffers bodily injury and that the insurance company should
indemnify the asbestos contractor for any judgment rendered against
it, or which it may have become legally obligated to pay, in connec-
tion with the asbestos-related claims. We do not read the triggering
requirement of exposure during the policy period or an obligation to
indemnify on account of legal obligation to pay as inconsistent with
Utica Mutual. Indeed, in the case of Bausch & Lomb v. Utica Mutual,
735 A.2d 1081 (Md. 1999), the court construed a liability policy in
which the insurance company was obligated to pay on behalf of
Bausch & Lomb all sums which Bausch & Lomb might become
legally obligated to pay as damages on account of property damage.
Bausch & Lomb had a waste disposal system consisting of settling
IN RE: THE WALLACE & GALE COMPANY 19
tanks, an unlined earthen lagoon, a holding tank, three large drywells
and a network of pipe. This waste disposal system, acceptable in
industrial practices at the time of its installation, nevertheless leaked
contaminants which contained certain heavy metals. This leaking and
the damage to other property owners took place at least until 1987,
and at issue in the case were four insurance policies for the years
1982 through 1985 which contained an endorsement substantially
limiting any liability for those years. Bausch & Lomb claimed that the
policies merely required it to show that some property damage took
place during the policy periods at issue. The trial court concluded that
technology was not available to ascertain the damage to Bausch &
Lomb’s own property during the applicable period and so awarded
damages for the entire period of years to Bausch & Lomb. The Court
of Appeals, however, held that the trial court’s decision, that technol-
ogy was not available, was not supported by the evidence. It therefore
remanded the case to the trial court for the parties to introduce evi-
dence as to the amount of property damage which fell within the
period of policy coverage. While the question presented in that case
was not exactly the same as the issue here, it is similar and is an indi-
cation to us that the time on the risk decision of the Court of Special
Appeals in Utica Mutual is not antagonistic to Maryland law. Thus
we are not convinced that the Court of Appeals would decide the allo-
cation question differently than did the Court of Special Appeals in
Utica Mutual.
The answer to the argument that the District of Columbia Court of
Appeals has decided the allocation question in favor of the all sums
method in Keene Corp. v. Insurance Company of North America, 667
F.2d 1034 (D.C. Cir. 1981) is that Keene was considered by the Mary-
land Court of Special Appeals in Utica Mutual and rejected. The
Maryland Court stated that it disagreed "with the approach taken in
Keene, and the ‘all sums’ and ‘joint and several approach’ in general.
We are persuaded that the "all sums" language of the standard CGL
policy must be read in concert with other language that limits a poli-
cy’s liability for damage or loss that occurs during the policy period,
. . . ."
The intervenors also argue that Utica Mutual is inconsistent with
Maryland Code, Insurance, § 19-102, the pertinent parts of which are:
20 IN RE: THE WALLACE & GALE COMPANY
§ 19-102. Provisions in liability policies for payment of
loss and bankruptcy of insured.
(a) Payment of liability or loss by insured. - A liability
insurance policy issued in the State may not require the
insured to pay for liability or loss under the policy.
(b) Bankruptcy or insolvency of insured. - Each liability
insurance policy issued in the State shall provide that:
(1) the bankruptcy or insolvency of the insured does not
release the insurer from liability; and
(2) if an injured person or another person claiming by,
through, or under the injured person is unable, after execu-
tion on a final judgment entered in an action against an
insured, to recover the full amount of the final judgment, the
person may bring an action against the insured’s insurer in
accordance with the terms of the policy for the lesser of the
amount of the judgment recovered in the action against the
insured or the amount of the policy.
They argue that Utica Mutual violates § 102(a), a provision that
such a policy "may not require the insured to pay for liability or loss
under the policy." The answer to that is that the policy makes no such
requirement. The policy’s provision for payment is that "the company
will pay on behalf of the insured all sums which the insured shall
become legally obligated to pay as damages because of . . . an occur-
rence." The policy as here written is simply the result of the devolu-
tion of such liability policies which initially, some years ago, were
policies of indemnity requiring the insured to pay claims or judgments
before liability under the policy attached to the insurance company.
That devolution is explained in greater detail than we need note here
in Poe v. Philadelphia Casualty Co., 84 A. (Md. 1912).
The next objection is that § 102(b)(1) is violated by Utica Mutual
in that "the bankruptcy or insolvency of the insured [Wallace &
Gale]" releases the insured from liability. Such, however, is not the
case. The insolvency of Wallace & Gale does not release any insur-
IN RE: THE WALLACE & GALE COMPANY 21
ance company from its contractually required policy obligation during
a policy period. The allocation of risk to the insured is for periods for
which there is no insurance in force or for which there is no coverage
by an insurance policy which is in force.
To the general argument that equity and fairness should favor the
satisfaction of legitimate claims for personal injury against Wallace
& Gale, whether or not reduced to judgment, the answer is that it is
neither equitable nor fair to require an insurance company to pay for
coverage during a period for which no effective coverage is in force.
For the coverage periods in which effective policies are in force, lia-
bility of the insurance carrier is decided favorably to the intervenors
by Utica Mutual.
V.
A part of the district court’s decision in In re: Wallace & Gale Co.,
275 B.R. 223, 237-241 (D. Md. 2002), subjected some of the claims
of the intervenors to aggregate limits under the policy provisions.
If a claimant’s initial exposure occurred while Wallace &
Gale was still conducting operations, policies in effect at
that time will not be subject to any aggregate limit. If, how-
ever, initial exposure is shown to have occurred after opera-
tions were concluded or if exposure that began during
operations continued after operations were complete, then
the aggregate limits of any policy that came into effect after
operations were complete will apply. Where a given claim-
ant falls within this framework will have to be considered
on a case-by-case basis. 275 B.R. at 241.
The policy provisions involved are from Hartford’s policy, which
is typical.
Subject to the above provision respecting "each occurrence,"
the total liability of [Hartford] for all damages because of
(1) all bodily injury included within the completed opera-
tions hazard and (2) all bodily injury included within the
products hazard shall not exceed the limit of bodily injury
liability stated in the schedule as "aggregate."
22 IN RE: THE WALLACE & GALE COMPANY
***
"[C]ompleted operations hazard" includes bodily injury and
property damage arising out of operations or reliance upon
a representation or warranty made at any time with respect
thereto, but only if the bodily injury or property damage
occurs after such operations have been completed or aban-
doned and occurs away from premises owned by or rented
to the named insured.
***
"[B]odily injury" means bodily injury, sickness or disease
sustained by an person which occurs during the policy
period, including death at any time resulting therefrom.
The argument of intervenors is "The Completed Operations Haz-
ards Do Not Apply To The Asbestos-Related Claims Because ‘The
Bodily Injury’ Did Not Begin To Occur After Completion of Wallace
& Gale’s Operations." Br. p. 47.
That argument, however, on its face is far broader than the district
court’s decision we have quoted just above from 275 B.R. at 241. For
example, a claimant’s initial exposure which occurred while Wallace
& Gale was still conducting operations was not subject to any aggre-
gate limit for policies in effect at that time even if the exposure
extended beyond the operations of Wallace & Gale. Also, if exposure
which began during operations continued after operations were com-
pleted, the aggregate limits of policies which came into effect after
operations would apply, but, as stated, the aggregate limits would not
apply to those policies in effect at the time of the exposure during
Wallace & Gale’s operations.
The other fact situations to which intervenors may be subjected are
disposed of by reference to the terms of the policy. The Maryland law
for construing the issue of coverage under insurance policies is set out
in Bausch & Lomb v. Utica Mutual, 625 A.2d 1021, 1031 (Md. 1993).
Under Maryland law, when deciding the issue of coverage
under an insurance policy, the primary principle of construc-
IN RE: THE WALLACE & GALE COMPANY 23
tion is to apply the terms of the insurance contract itself.
Unless there is an indication that the parties intended to use
words in the policy in a technical sense, we accord the
words their usual, ordinary, and accepted meaning. A
word’s ordinary signification is tested by what meaning a
reasonably prudent layperson would attach to the term.
Maryland does not follow the rule, adopted in many juris-
dictions, that an insurance policy is to be construed most
strongly against the insurer. Rather, as with contracts gener-
ally, the parties’ intention is to be ascertained from the pol-
icy as a whole. In the event of an ambiguity, courts may
consider extrinsic evidence as to the meaning of policy lan-
guage. (625 A.2d at 1031. Citations omitted.)
We see no ambiguity in the terms of the policy and so apply the
terms of the insurance contract itself to the facts at hand.
The "completed operations hazard" includes bodily injury . .
arising out of operations . . ., but only if the bodily injury
occurs after such operations are completed and occurs away
from the premises owned by or rented to the named insured.
***
Subject to the above provision respecting "each occurrence"
the total liability of [the insurance company] for all damages
because of (1) all bodily injury included within the "com-
pleted operations hazard" . . . shall not exceed the limit of
bodily injury liability stated in the schedule as "aggregate."
So the literal terms of the policy provide that for the bodily injury
there mentioned, such damage under the completed operations hazard
shall not exceed the "aggregate," as stated in the schedule. This con-
struction is entirely in accord with the decision of the district court we
have quoted above at 275 B.R. 241, and we so hold.
The intervenors next argue that they incurred bodily injury as a
result of inhaling asbestos fibers that were abandoned during the
installation process. Each comprehensive general liability insurance
24 IN RE: THE WALLACE & GALE COMPANY
policy contains an exception to the completed operations hazard
which exempts from the aggregate limits bodily injury claims that
arise out of abandoned or unused materials.
The completed operations hazard does not include bodily
injury or property damage arising out of . . . (b) the exis-
tence of tools, uninstalled equipment or abandoned or
unused materials . . . ."
The intervenors now contend that during the installation process,
asbestos fibers were released into the Bethlehem Steel facility as
"abandoned or unused materials" coming from "mixing, cutting, and
sawing the materials and asbestos-containing dust was released into
the air." Br. at 50. The intervenors have raised this argument for the
first time on appeal, after litigating this case since 1995. However, the
failure of a party at trial to raise a certain interpretation of an insur-
ance contract results in a waiver of that argument on appeal absent
exceptional circumstances. See Canada Life Assurance Co. v. Estate
of Lebowitz, 185 F.3d 231, 239 (4th Cir. 1999) ("Canada Life waived
[an argument based on a provision in the insurance contract] because
it failed to raise it below."); Corti v. Storage Tech. Corp., 304 F.3d
336, 343 (4th Cir. 2002) (Niemeyer, J., concurring) ("[I]t remains the
law of this circuit that when a party to a civil action fails to raise a
point at trial, that party waives review of the issue unless there are
exceptional or extraordinary circumstances justifying review.") (citing
Canada Life, 185 F.3d at 239); United States v. One 1971 Mercedes
Benz, etc., 542 F.2d 913, 914-915 (4th Cir. 1976).
The district court has filed at least two detailed written published
opinions in this case, reported at 275 B.R. 223 and 284 B.R. 557. On
neither of those occasions did the intervenors raise the question now
argued. The question is not mentioned in either of those opinions. As
noted, the case has been litigated for several years. We are of opinion
and hold that the question now argued, that certain injuries of the
intervenors may have come from "abandoned or unused materials"
under the terms of the policy, has been waived.
VI.
In their notices of appeal, the intervenors stated that they appealed
to this court the district court’s order of June 7, 1997, granting sum-
IN RE: THE WALLACE & GALE COMPANY 25
mary judgment to Liberty Mutual Insurance Company. The interve-
nors have not pursued this argument on appeal and did not address it
in their briefs. The intervenors failed to comply with Rule 28 of the
Federal Rules of Appellate Procedure in that the intervenors’ opening
brief neither mentions the order granting summary judgment to Lib-
erty Mutual nor requests that we reverse the order. The briefs contain
no argument or citation to authority which would support reversing
the district court’s order. Counsel for the intervenors did not address
the district court’s order at oral argument. Any claims included in the
notice of appeal but not addressed in a party’s brief or at oral argu-
ment are waived. Shopco Dist. Co. v. Commanding General, 885 F.2d
167, 170 n.3 (4th Cir. 1989) ("The Fifth Amendment claims were
included in the notice of appeal, but not thereafter briefed or argued.
Accordingly, these claims are waived because appellant did not com-
ply with the requirements of Rule 28 . . . ."). We hold the intervenors
have abandoned their claim regarding the district court’s June 7, 1997
order granting summary judgment to Liberty Mutual, and we decline
to address it.
VII.
Travelers’ cross-appeal, in which it contests the district court’s
decision that Liberty Mutual’s lost policies for the years 1959 to 1962
are unenforceable, is moot. Because we affirm the district court’s
decision that the pro-rata allocation method is correct under Maryland
law, Travelers no longer has an interest in having Liberty Mutual’s
lost policies enforced and has so advised in notice of cross-appeal.
Travelers’ motion for leave to assert claims for contribution against
Liberty Mutual therefore is moot. The end and effect of this decision
is that the district court’s decision with respect to the lost Liberty
Mutual policies is not disturbed.
The orders of the district court appealed from are accordingly
AFFIRMED.3
3
The intervenors have urged us to refer to the Maryland Court of Appeals
the questions of Maryland law involved in this case, while Travelers has
opposed such action. We decline so to do. Indeed, the arguments of each
to the district court were the opposite, as Travelers proposed that the district
court certify the "allocation" issue to the Maryland Court of Appeals, and
the intervenors opposed certification at that time. (Intervenors' br. p.54,
Travelers' br. p.29, JA p.1446, 1451).