R.T. Vanderbilt Co., Inc. v. Hartford Accident & Indemnity Co. ( 2019 )

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R.T. VANDERBILT COMPANY, INC. v. HARTFORD
ACCIDENT AND INDEMNITY COMPANY ET AL.
(SC 20000)
(SC 20001)
(SC 20003)
Robinson, C. J., and Palmer, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff, which previously mined and sold industrial talc that allegedly
contained asbestos, sought, inter alia, a declaratory judgment to deter-
mine, inter alia, its rights and obligations under certain insurance policies
issued by the defendant insurance companies as to the costs of defending
and indemnifying the plaintiff in numerous civil actions brought against
it for personal injuries sustained allegedly as a result of exposure to
asbestos. The defendants consisted of approximately thirty insurance
companies, including H Co. and C Co., primary insurers that issued
certain insurance policies to the plaintiff between 1948 and 2008, when
it mined and sold talc, and L Co., M Co., and P Co., secondary insurers
that issued umbrella or excess coverage to the plaintiff during that
same period. Prior to trial, the court issued certain scheduling orders
separating the trial into four phases, the first two of which were tried
to the court and focused on issues pertaining to how defense and indem-
nification costs were to be allocated between the plaintiff and the defen-
dants, specifically with respect to long latency claims alleging that the
claimants’ exposure to asbestos caused a series of injuries that devel-
oped gradually over the course of years, thereby implicating multiple
insurance policy periods. The court also considered, inter alia, whether
certain pollution and occupational disease exclusions in some of the
secondary insurance policies precluded coverage. After the first two
phases of the trial were complete, the trial court issued memoranda of
decision applying the time on the risk rule of contract law, which pro-
vides for pro rata allocation of defense and indemnity costs for asbestos
related disease claims, in order to determine how to allocate those costs
among the parties. In doing so, the trial court adopted the continuous
trigger theory of insurance coverage, pursuant to which every insurer
that had issued a policy in effect from the date that a claimant was first
exposed to asbestos until the date the claimant manifested an asbestos
related disease is potentially liable for defense and indemnity costs. To
that end, the trial court precluded the admission of expert testimony
regarding the adoption of the trigger theory of liability and medical
science about the timing of bodily injury from asbestos related disease.
The court also adopted the unavailability of insurance exception to the
time on the risk rule, pursuant to which defense and indemnity costs
are allocated to the insured for periods of time during which insurance
is not available. With respect to the pollution exclusions at issue, the
trial court concluded that they were ambiguous as to whether they
encompassed claims arising from exposure to asbestos, as opposed to
claims strictly involving traditional environmental pollution, and, there-
fore, that those exclusions did not preclude coverage. As to the occupa-
tional disease exclusions contained in two policies issued by L Co. and
P Co., the trial court concluded that those exclusions were unambiguous
and that they barred coverage only for claims brought by the plaintiff’s
own employees, not for claims brought by nonemployees who developed
occupational diseases while using the plaintiff’s talc in the course of
working for other employers. Thereafter, the plaintiff and certain defen-
dants were granted permission to file interlocutory appeals with the
Appellate Court pursuant to the rules of practice (§ 61-4 [a]). The Appel-
late Court concluded that the trial court properly adopted, as a matter
of law, a continuous trigger theory of coverage for asbestos related
disease claims and, accordingly, upheld the preclusion of expert testi-
mony proffered by M Co. on the timing of bodily injury from asbestos
related disease. The Appellate Court also upheld the trial court’s adop-
tion of an unavailability of insurance exception to the time on the risk
rule and agreed with the trial court that the pollution exclusions were
ambiguous and did not bar coverage for the underlying claims outside
of the context of traditional environmental pollution. With respect to
the occupational disease exclusions, however, the Appellate Court dis-
agreed with the trial court’s determination that those exclusions were
ambiguous and concluded that those exclusions unambiguously barred
coverage for occupational disease claims brought not only by the plain-
tiff’s own employees, but also by nonemployees who developed an
occupational disease while using the plaintiff’s talc in the course of
working for other employers. The Appellate Court reversed in part the
judgment of the trial court, and the plaintiff and certain defendants, on
the granting of certification, filed separate appeals with this court. Held:
1. The Appellate Court properly upheld the decision of the trial court to
adopt a continuous trigger theory of coverage for asbestos related dis-
ease claims and an unavailability of insurance exception to the time on
the risk rule of contract law, and to preclude M Co.’s proffered expert
testimony regarding medical science and the timing of bodily injury
from asbestos related disease, and also properly upheld the trial court’s
conclusion that the pollution exclusions do not bar coverage for asbestos
related disease claims: following a careful examination of the appellate
record and consideration of the briefs and arguments presented as to
those issues, this court concluded that the Appellate Court sufficiently
addressed those issues and, accordingly, adopted the relevant parts of
that court’s opinion as the proper statement of the issues and the applica-
ble law concerning those issues.
2. The Appellate Court correctly concluded that the language of the occupa-
tional disease exclusions in the secondary insurance policies issued by
L Co. and P Co. applied not only to claims brought against the plaintiff
by its own employees, but clearly and unambiguously excluded from
coverage claims brought by nonemployees of the plaintiff who developed
asbestos related diseases while using the plaintiff’s talc in the course
of working for other employers: contrary to the plaintiff’s claim that
the term ‘‘occupational disease,’’ which was not specifically defined by
the policies issued by L Co. and P Co., is a term of art devoid of
meaning outside of the employer-employee relationship and workers’
compensation law, that term has a meaning, as gleaned from dictionaries
in print at the time the policies were issued, outside of the context of
workers’ compensation law that contemplates an illness caused by fac-
tors or conditions arising out of one’s employment; moreover, the occu-
pational disease exclusions did not expressly limit their application to
the plaintiff’s employees, whereas other exclusions in those policies
expressly contained such limiting language, and the Appellate Court’s
reading of the exclusion did not render the liability coverage provided
by the policies meaningless, because, although the exclusions may signif-
icantly limit coverage, the parties had stipulated that there were addi-
tional classes of nonemployees whose claims were not barred by the
occupational disease exclusions.
Argued March 28—officially released October 8, 2019
Procedural History
Action for, inter alia, a declaratory judgment to deter-
mine the rights of the parties in connection with certain
insurance policies as to the defense and indemnification
of the plaintiff in numerous civil actions brought against
it for personal injuries allegedly sustained as a result
of asbestos exposure, and for other relief, brought to
the Superior Court in the judicial district of Hartford
and transferred to the judicial district of Waterbury,
Complex Litigation Docket, where Columbia Casualty
Company et al. were joined as defendants; thereafter,
the court, Shaban, J., denied the motions for summary
judgment filed by the defendant Mt. McKinley Insurance
Company et al.; subsequently, the plaintiff withdrew
the complaint as against the defendant TIG Insurance
Company; thereafter, the court bifurcated the trial and
ordered that the parties’ declaratory judgment claims
be tried to the court in four phases; subsequently, the
court granted the motions for summary judgment filed
by the defendant Government Employees Insurance
Company and to dismiss filed by the defendant National
Union Fire Insurance Company of Pittsburgh, PA, and
denied the motions for summary judgment filed by
the defendant National Casualty Company et al.; there-
after, the first phase was tried to the court; subse-
quently, Vanderbilt Minerals, LLC, was substituted as
the plaintiff; thereafter, the second phase was tried to
the court; subsequently, the court issued memoranda of
decision; thereafter, the defendant Everest Reinsurance
Company appealed and the substitute plaintiff cross
appealed to the Appellate Court; subsequently, the
court, Shaban, J., granted the motions filed by the sub-
stitute plaintiff and the defendant Mt. McKinley Insur-
ance Company for permission to appeal to the Appel-
late Court; thereafter, the Appellate Court granted the
motions for permission to appeal filed by the substi-
tute plaintiff and the defendant Mt. McKinley Insurance
Company; subsequently, the substitute plaintiff and the
defendant Mt. McKinley Insurance Company filed sepa-
rate appeals with the Appellate Court; thereafter, the
substitute plaintiff and the defendant Everest Reinsur-
ance Company filed amended appeals; subsequently,
the defendant St. Paul Fire and Marine Insurance Com-
pany et al. filed separate appeals and cross appeals with
the Appellate Court, which consolidated the appeals
and cross appeals; thereafter, the Appellate Court,
Lavine, Beach, and Bear, Js., reversed in part the judg-
ment of the trial court and remanded the case for further
proceedings, and the substitute plaintiff and the defen-
dant Mt. McKinley Insurance Company et al., on the
granting of certification, filed separate appeals with this
court. Affirmed.
Michael J. Smith, pro hac vice, with whom were
Jeffrey R. Babbin and, on the brief, Michael Menapace,
Bryan W. Petrilla, pro hac vice, Laura P. Zaino, Law-
rence A. Serlin, pro hac vice, Michael G. Albano, Peter
R. Reynolds, Amy R. Paulus, pro hac vice, Michael L.
Duffy, pro hac vice, William A. Meehan, Alexander J.
Mueller, pro hac vice, Stephen T. Roberts, Robert M.
Flannery, pro hac vice, Louis B. Blumenfeld, Lawrence
A. Levy, pro hac vice, Matthew G. Conway, Kevin M.
Haas, pro hac vice, Marianne May, pro hac vice,
Michael F. Lettiero, Lawrence D. Mason, pro hac vice,
John A. Lee, pro hac vice, James P. Sexton, Daniel
Hargraves, pro hac vice, David A. Slossberg, John E.
Rodewald, pro hac vice, and Heather L. McCoy, for
the appellants in SC 20001 (defendant TIG Insurance
Company et al.).
John W. Cerreta, with whom were Kathleen D. Mon-
nes and, on the brief, Erick M. Sandler, for the appel-
lants in SC 20000 (defendant Travelers Casualty and
Surety Company et al.).
Jacob M. Mihm and Marilyn B. Fagelson, with whom
were Proloy K. Das, Rachel Snow Kindseth and, on the
brief, Stephen Hoke, for the appellant in SC 20003 and
the appellees in SC 20000 and SC 20001 (substitute
plaintiff).
Lawrence D. Mason, pro hac vice, with whom, on
the brief, were John A. Lee, pro hac vice, Michael F.
Lettiero, Laura P. Zaino, Lawrence A. Serlin, pro hac
vice, William A. Meehan, Alexander J. Mueller, pro hac
vice, Stephen T. Roberts, Robert M. Flannery, Heather
L. McCoy, Jeffrey R. Babbin, Michael Menapace,
Michael J. Smith, pro hac vice, Bryan W. Petrilla, pro
hac vice, Matthew G. Conway, Kevin M. Haas, pro hac
vice, Marianne May, pro hac vice, Louis B. Blumenfeld
and Lawrence A. Levy, pro hac vice, for the appellees
in SC 20003 (defendant National Casualty Company
et al.).
Alexander J. Mueller, pro hac vice, with whom was
William A. Meehan, for the appellees (defendant Cer-
tain London Market Insurers et al.).
Stephanie V. Corrao and Laura A. Foggan, pro hac
vice, filed a brief for the Complex Insurance Claims
Litigation Association as amicus curiae in SC 20000 and
SC 20001.
Michael T. McCormack filed briefs for the National
Association of Manufacturers as amicus curiae in SC
20000, SC 20001 and SC 20003.
Opinion
ROBINSON, C. J. These certified appeals, which pres-
ent us with several significant questions of insurance
law, arise from coverage disputes between the plaintiff,
R.T. Vanderbilt Company, Inc. (Vanderbilt),1 and the
defendants, who are numerous insurance companies
(insurer defendants)2 that issued primary and second-
ary comprehensive general liability insurance policies
to Vanderbilt between 1948 and 2008, stemming from
thousands of underlying lawsuits alleging injuries from
exposure to industrial talc containing asbestos that
Vanderbilt mined and sold. Vanderbilt and the insurer
defendants appeal, upon our granting of their petitions
for certification,3 from the judgment of the Appellate
Court affirming in part and reversing in part numerous
interlocutory decisions made by the trial court in con-
nection with the first and second phases of a complex
trial between the parties. R.T. Vanderbilt Co. v. Hart-
ford Accident & Indemnity Co., 171 Conn. App. 61,
75–76, 156 A.3d 539 (2017). On appeal, the insurer defen-
dants claim that the Appellate Court improperly (1)
upheld the trial court’s adoption of a ‘‘continuous trig-
ger’’ theory of coverage for asbestos related disease
claims as a matter of law and the trial court’s related
preclusion of expert testimony on current medical sci-
ence regarding the actual timing of bodily injury from
such disease, (2) upheld the trial court’s adoption of
an ‘‘unavailability of insurance’’ exception to the ‘‘time
on the risk’’ rule of contract law, which provides for
pro rata allocation of defense costs and indemnity
for asbestos related disease claims, and (3) interpreted
pollution exclusion clauses in certain insurance policies
as applicable only to claims arising from ‘‘traditional’’
environmental pollution, rather than to those arising
from asbestos exposure in indoor working environ-
ments. In its appeal, Vanderbilt claims that the Appel-
late Court improperly construed occupational disease
exclusions present in certain policies as not limited
to claims brought by Vanderbilt’s own employees.
Because we conclude that the Appellate Court’s com-
prehensive opinion properly resolved these significant
issues, we affirm the judgment of the Appellate Court.
The opinion of the Appellate Court aptly sets forth
the relevant background facts and procedural history.4
‘‘Vanderbilt is a Connecticut corporation engaged in
the mining and sale of various chemical and mineral
products. In 1948, it began to produce industrial talc
through its subsidiary, Gouverneur Talc Company.
Vanderbilt continued to mine and sell talc until 2008,
when it ceased production and sold off the last of its
inventory.
‘‘Over the past several decades, thousands of underly-
ing actions have been filed against Vanderbilt in vari-
ous jurisdictions throughout the United States, many
of which remain pending. Those actions alleged that
talc and silica mined and sold by Vanderbilt contained
asbestos or otherwise caused diseases that are corre-
lated to asbestos exposure, such as mesothelioma,
other asbestos related cancer, and asbestosis (collec-
tively, asbestos related disease). In response, Vanderbilt
has taken the position that its industrial talc does not
contain asbestos. From the time that it started mining
talc, Vanderbilt purchased or attempted to purchase
primary and secondary comprehensive general liability
insurance to cover the defense and indemnity costs of
asbestos related claims.
‘‘Vanderbilt brought the present action against sev-
eral insurance companies that issued it primary insur-
ance policies between 1948 and 2008 . . . .’’ Id., 76–77;
see footnote 2 of this opinion (listing defendants). In
particular, Vanderbilt alleged that its primary insurers—
Hartford Accident and Indemnity Company, and Conti-
nental Casualty Company, Columbia Casualty Company
and Continental Insurance Company (collectively, Con-
tinental) ‘‘had breached their contractual obligations to
pay their proper shares of defense and indemnity costs
in the underlying actions. Vanderbilt also sought a
declaratory judgment as to the parties’ respective rights
and responsibilities under the policies at issue.
‘‘Continental subsequently filed a [third-party] com-
plaint against various insurance companies that had
provided secondary coverage—umbrella or excess5—
to Vanderbilt during the time that it was in the talc
business.’’ (Footnote altered.) R.T. Vanderbilt Co. v.
Hartford Accident & Indemnity Co., supra, 171 Conn.
App. 77. ‘‘Vanderbilt thereafter brought direct claims
against these [third-party] secondary insurers.’’ Id., 78.
‘‘Prior to the start of trial, the trial court issued a
series of scheduling orders, pursuant to which it sepa-
rated the trial into four phases. In the first two phases,
which were tried to the court and have been completed,
the court addressed Vanderbilt’s declaratory judgment
claims and related counterclaims and cross claims.
The primary issue before the court in those phases
was how insurance obligations are to be allocated with
respect to long latency6 asbestos related claims alleging
injuries that occur over the course of years or even
decades and, therefore, potentially implicate multiple
insurance policy periods. Specifically, in Phase I, the
court addressed the question of how defense costs for
the underlying actions were to be allocated as between
Vanderbilt and its insurers. That required a determina-
tion of (1) the periods during which the defendants’
insurance policies were in effect and (2) whether Vand-
erbilt should be treated as self-insured for any period
so as to create an equitable obligation to contribute to
the costs of its defense. In Phase II, the court considered
the same questions with respect to indemnity costs. In
that phase, the court also issued rulings with respect
to the meaning of various policy provisions, the exhaus-
tion of Vanderbilt’s primary policies, and related issues.
In Phase III of the trial, which also will be tried to the
court, the court plans to adjudicate the defendants’
claims for recovery of overpayment of insurance costs.
In Phase IV, Vanderbilt’s breach of contract claims
against its insurers are to be tried to a jury.’’ (Footnote
altered.) Id., 78–79.
‘‘In addressing the allocation questions in Phases I
and II, the trial court proceeded on the assumption
that Connecticut follows a pro rata, [time on the risk]
approach to allocating insurance obligations in long-
tail cases. See footnote [6] of this opinion. Under that
allocation scheme, the court assumed that a victim of
asbestos related disease suffers continuous injuries
commencing at the time of initial exposure to asbestos
and extending until disease manifests and, therefore,
that defense and indemnity costs must be allocated
across all of the insurance policies on the risk (i.e.,
potentially liable) during that period (allocation block).
The court further assumed that (1) the policyholder is
responsible for a pro rata share of costs for any period
during which it is uninsured or underinsured (proration
to the insured), including so-called ‘orphan share’ peri-
ods covered by policies that were lost, destroyed, or
issued by insurers that subsequently became insolvent;
but (2) Connecticut has embraced an unavailability of
insurance exception pursuant to which there is no pro-
ration to the insured for periods during which insurance
is not available. Applying these principles to the present
case, the court held evidentiary hearings during Phases
I and II to determine, among other things, whether
defense and indemnity insurance coverage, respectively,
was available for asbestos related claims between 1948
and 2008 and, if so, whether Vanderbilt availed itself of
such coverage.’’ Id., 79–80.
On the basis of findings of fact rendered after Phase I,7
the trial court ‘‘determined that the allocation of defense
and indemnity costs would be applied prospectively in
the following manner, on the basis of a total potential
exposure period of [732] months running from 1948
through 2008:8 (1) as to defense costs, Vanderbilt would
be liable for 265 of the [732] months; (2) as to indemnity
costs, Vanderbilt would be liable for [96] of the [732]
months; and (3) Vanderbilt’s responsibility as to both
defense and indemnity costs would be adjusted upward
for any additional periods when there was a gap in cover-
age or an insolvent insurer. The court applied these same
findings, principles, and allocation rules to underlying
actions that alleged harms arising from nonasbestos par-
ticulates such as silica. Specifically, the court credited
testimony that all of the underlying actions, whether on
their face or through subsequent discovery or investiga-
tion, involved claims of exposure to asbestos.
‘‘In its Phase II decision, the court also considered
the applicability of two types of exclusions contained
in certain of Vanderbilt’s excess and umbrella policies.
The court first addressed the claim by several secondary
insurers that the pollution exclusion clauses contained
in their policies barred coverage for the underlying
actions. The court concluded that the relevant policy
language was ambiguous as applied to the asbestos
related claims and, therefore, that the exclusions did
not preclude coverage. The court also addressed the
issue of whether occupational disease exclusions con-
tained in certain secondary policies applied only to
claims brought by the policyholder’s own employees.
The court found that the exclusions were unambiguous
and that they did, in fact, bar coverage only for claims
brought by Vanderbilt’s own employees.’’ (Footnote
altered.) Id., 82–83.
‘‘Following the completion of the Phase II trial, Vand-
erbilt and several defendants filed appeals and cross
appeals [with the Appellate Court], challenging approxi-
mately twenty of the court’s conclusions and findings.’’9
Id., 83. The Appellate Court subsequently issued an opin-
ion of extraordinary complexity and comprehensive-
ness addressing a plethora of issues.10 With respect to
the issues now before us in this certified appeal, the
Appellate Court first concluded that the trial court prop-
erly adopted a ‘‘continuous trigger’’ theory of coverage
for asbestos related disease claims as a matter of law
and, accordingly, properly precluded the admission of
expert testimony on current medical science regarding
the actual timing of bodily injury from such disease.
Id., 118–19. The Appellate Court further upheld the trial
court’s adoption of an ‘‘unavailability of insurance’’
exception to the ‘‘time on the risk’’ rule of contract law,
which provides for the pro rata allocation of defense
costs and indemnity for asbestos related disease claims.
Id., 143. The Appellate Court then interpreted the pollu-
tion exclusion clauses as applicable only to claims aris-
ing from ‘‘traditional environmental pollution,’’ rather
than those arising from asbestos exposure in indoor
working environments. Id., 252. Finally, the Appellate
Court concluded that the trial court had improperly
construed the occupational disease exclusions as ‘‘bar-
[ring] coverage only for occupational disease claims
brought by a policyholder’s own employees and that the
exclusions do not apply to complainants who developed
occupational disease while using the policyholder’s pro-
ducts in the course of working for another employer.’’
Id., 256.
The Appellate Court rendered judgment reversing the
decisions of the trial court ‘‘with respect to [its] determi-
nations that (1) Vanderbilt is responsible for defense
costs for the period of March 3, 1993 through April 24,
2007, (2) a default date of first exposure of January 1,
1962, applies to pending and future claims, and (3) the
occupational disease exclusions in certain secondary
policies apply only to claims brought by Vanderbilt’s
own employees; the proper allocation methodology and
the prospective application of that methodology are
clarified as set forth herein . . . .’’ Id., 309. The Appel-
late Court then remanded the case to the trial court
‘‘for further proceedings consistent with [its] opinion.’’
Id. These certified appeals followed. See footnote 3 of
this opinion.
I
We begin with the claims of the numerous insurer
defendants in the certified appeals docketed as Docket
Nos. SC 20000 and SC 20001. See footnote 2 of this opin-
ion. Specifically, they contend that the Appellate Court
improperly upheld the decision of the trial court (1)
adopting a ‘‘continuous trigger’’ theory of coverage for
asbestos related disease claims as a matter of law, (2)
precluding expert testimony on current medical science
regarding the actual timing of bodily injury from asbes-
tos related diseases, and (3) adopting an ‘‘unavailability
of insurance’’ exception to the ‘‘time on the risk’’ rule
of contract law. The insurer defendants also claim that
the Appellate Court improperly interpreted pollution
exclusion clauses in certain insurance policies as appli-
cable only to claims arising from ‘‘traditional environ-
mental pollution,’’ rather than to those arising from
asbestos exposure in indoor working environments.
After carefully examining the record on appeal and
considering the briefs and arguments of the parties, we
have concluded that the judgment of the Appellate
Court should be affirmed with respect to these issues.
The Appellate Court’s thorough and well reasoned opin-
ion more than sufficiently addresses these certified
questions, and there is no need for us to repeat the
discussion contained therein. We therefore adopt parts
III A, III B, and IV A of the Appellate Court’s opinion
as the proper statement of the issues and the applicable
law concerning those issues. See, e.g., Deutsche Bank
AG v. Sebastian Holdings, Inc., 331 Conn. 379, 384, 204
A.3d 664 (2019); State v. Henderson, 330 Conn. 793,
799, 201 A.3d 389 (2019).
II
We next turn to Vanderbilt’s claim, in Docket No. SC
20003, that the Appellate Court incorrectly determined
that occupational disease exclusion clauses in two
excess policies apply to claims brought by nonemploy-
ees of Vanderbilt who allegedly developed an occu-
pational disease while using Vanderbilt talc at any work-
place. The Appellate Court’s opinion sets forth the fol-
lowing additional facts and procedural history relevant
to this claim. ‘‘At trial, several of Vanderbilt’s secondary
insurers [secondary insurers]11 either sought declara-
tory judgments determining or raised special defenses
or claims alleging that occupational disease exclusions
in their policies precluded coverage for some of the
underlying actions. Two versions of the occupational
disease exclusion, contained in policies issued by Cer-
tain Underwriters at Lloyd’s, London (Lloyd’s), and
Pacific Employers Insurance Company (Pacific), are
at issue.12
‘‘The first policy at issue, Lloyd’s policy number 77/
18503/1/PNB21250D, was in effect from May 17, 1977
through March 3, 1979. The policy contains an endorse-
ment clause stating in relevant part that ‘this policy shall
not apply . . . to personal injury (fatal or nonfatal) by
occupational disease.’ Several other defendants issued
secondary policies following form to the Lloyd’s policy.13
‘‘The second policy at issue, Pacific policy num-
ber XMO017535 (NCA15), was in effect from March 3,
1985 through March 3, 1986. It contains the following
endorsement clause: ‘This policy does not apply to any
liability arising out of: Occupational Disease.’ National
Casualty [Company (National Casualty)], [a secondary
insurer that] has taken the lead in challenging the trial
court’s rulings regarding the occupational disease
exclusions, issued an excess policy, number XU000233,
which follows form to the Pacific policy. Lloyd’s also
issued an excess policy that follows form to the Pacific
policy. None of the relevant policies defines the term
‘occupational disease.’
‘‘In addition to these occupational disease exclusions,
the Lloyd’s and Pacific policies contain employers’ lia-
bility exclusions. The Lloyd’s policy provides that ‘this
policy shall not apply . . . to the liability of employ-
ees.’ The Pacific policy provides that ‘[t]his policy does
not apply to personal injury to any employee of the
insured arising out of and in the course of his employ-
ment by the insured or to any obligation of the insured
to indemnify another because of damages arising out
of such injury.’ In addition, National Casualty’s excess
policy, while following form to the Pacific policy, also
includes its own ‘employers liability exclusion,’ which
is somewhat broader than the one in the Pacific policy.
It provides in relevant part: ‘[T]his policy shall not apply
to any liability for bodily injury, sickness, disease,
disability or shock, including death at any time resulting
therefrom . . . sustained by any employee of the
insured and arising out of and in the course of his
employment by the insured.’ Last, both the Lloyd’s and
Pacific policies contain exclusions for obligations for
which the insured may be held liable under workers’
compensation, unemployment compensation, or dis-
ability benefits laws.
‘‘To facilitate the trial court’s resolution of the issue,
the parties stipulated during the second phase of the
trial that none of the claimants in the underlying actions
[is] or ever [was a] Vanderbilt [employee]. The parties
further stipulated that the underlying complaints fall
into three categories: those that allege (1) exposure to
Vanderbilt products solely through the workplace of
another employer, (2) exposure both in and outside
the workplace, and (3) exposure solely outside the
workplace. Accordingly, if the occupational disease
exclusions do apply to nonemployees of Vanderbilt,
they likely will bar coverage for some but not all of the
underlying complaints during the relevant policy
years.14
‘‘In its Phase II decision, the trial court concluded
that the occupational disease exclusions apply only to
claims brought by Vanderbilt’s own employees.
Because the policies themselves do not define the term
‘occupational disease,’ the court looked to the Workers’
Compensation Act (act), General Statutes § 31-275
et seq., for a definition of the term. Section 31-275
(15) provides that ‘ ‘‘[o]ccupational disease’’ includes
any disease peculiar to the occupation in which the
employee was engaged and due to causes in excess
of the ordinary hazards of employment as such, and
includes any disease due to or attributable to exposure
to or contact with any radioactive material by an
employee in the course of his employment.’ The trial
court concluded that the term, as defined in the statute,
was unambiguous, and that it applied solely to employ-
ees of the insured. The court rejected the defendants’
argument that such a construction would render the
occupational disease exclusion superfluous, insofar
as the employers’ liability exclusions in the policies
already preclude coverage for any claims of workplace
injury or disease by employees of the policyholder. The
court reasoned that the act draws a distinction between
occupational diseases; General Statutes § 31-275 (15);
and ‘ ‘‘[p]ersonal injur[ies]’’ ’; General Statutes § 31-275
(16); and that the policies at issue incorporate that
distinction—whereas the occupational disease exclu-
sion applies to employees of an insured who allege
occupational diseases, the employers’ liability exclu-
sion applies to employees who allege that they have
suffered sudden personal injuries while on the job.
‘‘Because the court agreed with Vanderbilt that the
occupational disease exclusions do not apply to any of
the underlying claims, the court did not address Vander-
bilt’s alternative arguments that (1) in the event that
the policy language is determined to be ambiguous, the
exclusions should be construed in favor of the insured
pursuant to the doctrine of contra proferentem, and (2)
certain of the defendants have waived their right to
invoke the exclusions.’’ (Footnote added; footnote
altered; footnotes in original.) R.T. Vanderbilt Co. v.
Hartford Accident & Indemnity Co., supra, 171 Conn.
App. 256–59.
On appeal, the Appellate Court disagreed with the
trial court’s construction of the occupational disease
exclusions, concluding instead that they ‘‘unambig-
uously bar coverage for occupational disease claims
brought not only by employees of Vanderbilt but also
by individuals who contracted an occupational disease
in the course of their work for other employers.’’ (Foot-
note omitted.) Id., 269–70. In concluding that the lan-
guage of the exclusions was plain and unambiguous,
the Appellate Court rejected Vanderbilt’s ‘‘primary argu-
ment,’’ namely, ‘‘that the term occupational disease is so
interwoven with the concept of workers’ compensation
and other claims by an employee against his employer
as to be meaningless outside of that particular context.’’
(Internal quotation marks omitted.) Id., 262–63. The
Appellate Court also observed that, when the policies
were drafted ‘‘between the late 1970s and mid-1980s,
‘occupational disease’ had a common and ordinary
meaning within the legal and insurance fields.’’15 Id.,263–64. The Appellate Court also relied on the rules
of contract construction and noted that the employer
liability exclusions were expressly limited to employ-
ees of the insured, whereas the ‘‘occupational disease
exclusions are framed broadly and do not contain any
similar language of limitation . . . .’’ Id., 269. Accord-
ingly, the Appellate Court reversed the judgment of
the trial court with respect to the occupational disease
exclusions and remanded the case to the trial court with
direction ‘‘to consider Vanderbilt’s alternative argument
that certain defendants are precluded from invoking
the exclusions because they failed to timely plead the
exclusions as a special defense.’’ Id., 270.
On appeal, Vanderbilt claims that the Appellate Court
improperly failed to limit the application of the occupa-
tional disease exclusions to claims brought against
Vanderbilt by its own employees. Vanderbilt relies on
case law and legal dictionaries; see, e.g., Ins. Co. of
North America v. Forty-Eight Insulations, Inc., 451 F.
Supp. 1230 (E.D. Mich. 1978), aff’d, 633 F.2d 1212 (6th
Cir. 1980); Nolan v. Johns-Manville Asbestos & Magne-
sia Materials Co., 74 Ill. App. 3d 778, 392 N.E.2d 1352(1979), aff’d, 85 Ill. 2d 161, 421 N.E.2d 864 (1981); Com-
mercial Union Ins. Co. v. Porter Hayden Co., 116 Md.
App. 605, 698 A.2d 1167, cert. denied, 348 Md. 205, 703
A.2d 147 (1997); Black’s Law Dictionary (5th Ed. 1979);
and argues that the term ‘‘ ‘occupational disease’ is a
term of art that refers only to disputes between [the]
employer and [the] employee or to statutory compen-
sation plans for employees.’’ Vanderbilt also contends
that the Appellate Court’s interpretation of the term
‘‘occupational disease’’ is inconsistent with the long-
standing rules by which we construe insurance policies
and their exclusions, in particular that an insurer bears
a heightened burden in proving the applicability of an
exclusion and that ambiguous exclusions are construed
in favor of the insured. Supported by the amicus curiae
National Association of Manufacturers, Vanderbilt con-
tends that the Appellate Court’s construction of the
exclusion to the contrary ‘‘dramatically reduce[s] gen-
eral liability coverage for manufacturers, particularly
in the context of claims of disease resulting from alleged
exposure to asbestos and other industrial products.’’
In response, National Casualty, leading the secondary
insurers, argues that the occupational disease exclu-
sions are plain and unambiguous. Citing, among other
cases, Ricigliano v. Ideal Forging Corp., 280 Conn. 723,
912 A.2d 462 (2006), National Casualty contends that
the phrase ‘‘occupational disease’’ has a plain meaning
beyond the narrow workers’ compensation context
insofar as ‘‘an ‘occupational disease’ is a disease arising
from engaging in one’s occupation—if an employee
develops a condition arising out of his or her employ-
ment, that employee has an ‘occupational disease,’ no
matter where that employee works.’’ (Emphasis added.)
Responding to Vanderbilt’s historical and contextual
analysis of the term, National Casualty relies on TKK
USA, Inc. v. Safety National Casualty Corp., 727 F.3d
782 (7th Cir. 2013), Rodriguez v. E.D. Construction,
Inc., 126 Conn. App. 717, 12 A.3d 603, cert. denied, 301
Conn. 904, 17 A.3d 1046 (2011), Wyness v. Armstrong
World Industries, Inc., 171 Ill. App. 3d 676, 525 N.E.2d
907 (1988), Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.3d
851 (2013), and United National Ins. Co. v. J.H. France
Refractories Co., 36 Pa. D. & C.4th 400, 409–10 (C.P.
1996), to contend that the meaning of the phrase ‘‘occu-
pational disease’’ has not changed over time ‘‘from the
pre-workers’ compensation era to the present’’; instead,
only the remedies available for such illness claims have
changed, with the addition of workers’ compensation
coverage in the first instance. National Casualty also
argues that Vanderbilt’s proffered construction of the
occupational disease exclusions violates rules of con-
tract interpretation by adding nonexistent language and
rendering the exclusions ‘‘redundant, as the policies
at issue contain [e]mployers’ [l]iability and [w]orkers’
[c]ompensation exclusions that act specifically to
bar Vanderbilt employees’ workplace related claims.’’
National Casualty emphasizes that the occupational dis-
ease exclusions were ‘‘stand-alone provisions outside
of the base policy forms and, consequently, readily iden-
tifiable,’’ meaning that either Vanderbilt or its sophisti-
cated brokers, acting as its agent, ‘‘knew exactly the
scope and limitations of the coverage Vanderbilt was
procuring,’’ rendering that coverage still meaningful
with respect to asbestos exposure that was even par-
tially outside the workplace. In resolving this question
of first impression nationally, we agree with National
Casualty and conclude that the Appellate Court prop-
erly interpreted the occupational disease exclusions to
exclude occupational disease claims brought against
Vanderbilt by both its employees and nonemployees.
We begin with well established principles governing
the interpretation of insurance policies. ‘‘[C]onstruction
of a contract of insurance presents a question of law
for the [trial] court which this court reviews de novo.
. . . The determinative question is the intent of the
parties, that is, what coverage the [insured] expected
to receive and what the [insurer] was to provide, as
disclosed by the provisions of the policy. . . . In evalu-
ating the expectations of the parties, we are mindful
of the principle that provisions in insurance contracts
must be construed as laymen would understand [them]
and not according to the interpretation of sophisticated
underwriters and that the policyholder’s expectations
should be protected as long as they are objectively
reasonable from the layman’s point of view. . . .
[W]hen the words of an insurance contract are, without
violence, susceptible of two [equally responsible] inter-
pretations, that which will sustain the claim and cover
the loss must, in preference, be adopted. . . . [T]his
rule of construction favorable to the insured extends
to exclusion clauses. . . . When construing exclusion
clauses, the language should be construed in favor of
the insured unless it has a high degree of certainty
that the policy language clearly and unambiguously
excludes the claim. . . . While the insured bears the
burden of proving coverage, the insurer bears the bur-
den of proving that an exclusion to coverage applies.’’
(Citations omitted; internal quotation marks omitted.)
Nationwide Mutual Ins. Co. v. Pasiak, 327 Conn. 225,
238–39, 173 A.3d 888 (2017); see, e.g., Travelers Casu-
alty & Surety Co. of America v. Netherlands Ins. Co.,
312 Conn. 714, 740, 95 A.3d 1031 (2014) (‘‘[U]nambigu-
ous terms are to be given their plain and ordinary mean-
ing. . . . As with contracts generally, a provision in an
insurance policy is ambiguous when it is reasonably
susceptible to more than one reading.’’ [Internal quota-
tion marks omitted.]). But see Travelers Casualty &
Surety Co. of America v. Netherlands Ins. Co., supra,
740–41 (noting that contra proferentem rule does not
apply in disputes between insurers). ‘‘[A]lthough policy
exclusions are strictly construed in favor of the insured
. . . the mere fact that the parties advance different
interpretations of the language in question does not
necessitate a conclusion that the language is ambig-
uous.’’ (Internal quotation marks omitted.) Liberty
Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn.
767, 796, 967 A.2d 1 (2009).
We begin with the language of the occupational dis-
ease exclusions at issue. The first policy at issue, Lloyd’s
policy number 77/18503/1/PNB21250D, was in effect
from May 17, 1977 through March 3, 1979. The occupa-
tional disease exclusion for this policy is contained in
an endorsement stating that ‘‘this policy shall not apply
. . . to personal injury (fatal or nonfatal) by occupa-
tional disease.’’ The second policy at issue, Pacific pol-
icy number XMO017535 (NCA15), was in effect from
March 3, 1985 through March 3, 1986. It contains the
following endorsement with an occupational disease
exclusion: ‘‘This policy does not apply to any liability
arising out of: Occupational Disease.’’ Because neither
of the policies at issue defines the term ‘‘occupational
disease,’’ our analysis begins with its ordinary meaning,
as ascertained from dictionaries contemporary to the
1970s and 1980s, when the policies were issued. See,
e.g., Lexington Ins. Co. v. Lexington Healthcare Group,
Inc., 311 Conn. 29, 42 n.8, 84 A.3d 1167 (2014); R.T.
Vanderbilt Co. v. Continental Casualty Co., 273 Conn.
448, 463, 870 A.2d 1048 (2005); Buell Industries, Inc.
v. Greater New York Mutual Ins. Co., 259 Conn.
527, 539, 791 A.2d 489 (2002). The Random House Dic-
tionary of the English Language Unabridged (1966) p.
996, defines ‘‘occupational disease’’ as synonymous
with ‘‘industrial disease,’’ namely, ‘‘a disease caused by
the conditions or hazards of a particular occupation.’’
Similarly, Webster’s Third New International Dictionary
(1961) pp. 1560–61, defines ‘‘[o]ccupational disease’’ as
‘‘an illness caused by factors arising from one’s occupa-
tion
. . . .’’16 (Emphasis in original.)
Contemporaneous legal dictionaries contain similar
general definitions of the term ‘‘occupational disease,’’17
along with specifically indicating the existence of a
relationship between occupational diseases, as pre-
viously defined, and workers’ compensation statutory
schemes. Notably, the fifth edition of Black’s Law Dic-
tionary, published in 1979 and relied on heavily by Vand-
erbilt, defines ‘‘[o]ccupational disease’’ as ‘‘[a] disease
(as black lung disease incurred by miners) resulting
from exposure during employment to conditions or sub-
stances detrimental to health. Compensation for such
is provided by state [workers’] compensation acts and
such federal acts as the Black Lung Benefits Act.
Impairment of health not caused by accident but by
exposure to conditions arising out of or in the course
of one’s employment.’’ (Emphasis added.) Black’s Law
Dictionary (5th Ed. 1979) p. 973.
The Black’s Law Dictionary entry then goes on to
explain that a ‘‘disease is compensable under [workers’]
compensation statute as being an ‘occupational’ disease
where: (1) the disease is contracted in the course of
employment; (2) the disease is peculiar to the claimant’s
employment by its causes and the characteristics of its
manifestation or the conditions of employment result
in a hazard which distinguishes the employment in char-
acter from employment generally; and (3) the employ-
ment creates a risk of contracting the disease in a
greater degree and in a different manner than the public
generally.’’18 Id.; accord Black’s Law Dictionary (10th
Ed. 2014) p. 1248; see also Ricigliano v. Ideal Forging
Corp., supra, 280 Conn. 731–32 (discussing statutory
definitions of ‘‘occupational disease’’ under § 31-275
[15] as consistent with dictionary definitions). Although
the relationship between occupational disease and
workers’ compensation is now a matter of black letter
law, none of the definitions on which Vanderbilt relies—
including the definition in Black’s Law Dictionary—
suggests in any way that the phrase ‘‘occupational dis-
ease’’ is a construct devoid of meaning outside the law
of workers’ compensation,19 notwithstanding its obvi-
ous significance within that area of the law. Instead, we
read those definitions only to highlight the availability
of workers’ compensation as a common, legal remedy
for claims arising from the underlying condition. Thus,
we disagree with Vanderbilt’s argument in its reply brief
that ‘‘ ‘[o]ccupational [d]isease’ [is] a term of art that
is tied to the employee-employer relationship,’’ thus
meaning that ‘‘no specific reference to employees
needed to be added to the exclusion.’’
Given the lack of any verbiage in commonly used
dictionary definitions expressly limiting the definition
of occupational disease to the workers’ compensation
context,20 it is significant that the text of the occupa-
tional disease exclusions does not contain language
expressly limiting their application to the employees of
the insured. In contrast, other exclusions in the relevant
policies, namely, for employer’s liability and workers’
compensation, expressly contain such language.21 This
omission is significant because it indicates that, when
the drafters of the policy desired to limit the applica-
tion of an exclusion to a certain group of individuals,
they did so. It renders all the more unambiguous the
lack of any such express limitation in the occupational
disease exclusions. See Lexington Ins. Co. v. Lexington
Healthcare Group, Inc., supra, 311 Conn. 54 (‘‘[t]ypi-
cally, when different terms are employed within the
same writing, different meanings are intended’’); Buell
Industries, Inc. v. Greater New York Mutual Ins. Co.,
supra, 259 Conn. 539–40 (use of word ‘‘sudden’’ in
‘‘sudden and accidental’’ exception to pollution exclu-
sion was intended to preclude coverage for gradually
occurring pollution, ‘‘so that only a temporally abrupt
release of pollutants would be covered as an exception
to the general pollution exclusion’’).
Indeed, to read the exclusions as urged by Vanderbilt
would require us to add otherwise nonexistent language
specifically limiting their application to Vanderbilt’s
employees, which is contrary to how we interpret con-
tracts, including insurance policies. See Moore v. Conti-
nental Casualty Co., 252 Conn. 405, 414, 746 A.2d 1252(2000) (‘‘We cannot rewrite the insurance policy by
adding semicolons any more than we can by adding
words. If the policy had referred to ‘green vehicles,’
and defined that term as ‘green cars, trucks or motorcy-
cles,’ it is unlikely that there would be a reasonable
dispute about whether blue trucks and red motorcycles
were intended to be included in the definition.’’); see
also Travelers Ins. Co. v. Namerow, 257 Conn. 812, 827,
778 A.2d 168 (2001) (‘‘The language of the policy clearly
does not contain the word ‘motive’ or any other analo-
gous term. Under the language of the policy, the plaintiff
did not need to prove motive as an element of its claim
that the defendants’ loss fell within the [intentional act]
policy exclusion.’’ [Footnote omitted.]), superseded in
part on other grounds, 261 Conn. 784, 807 A.2d 467(2002); Community Action for Greater Middlesex
County, Inc. v. American Alliance Ins. Co., 254 Conn.
387, 403, 757 A.2d 1074 (2000) (‘‘[t]here is nothing in
the language of the exclusion to indicate that the alleged
abuse or molestation must be sexually motivated or
calculated to arouse the person or persons involved in
the offending conduct; the boys’ nonconsensual grab-
bing and fondling of [the victim] fall within the plain
meaning of the words ‘abuse’ and ‘molestation’ irrespec-
tive of the boys’ subjective state of mind’’); Moore v.
Continental Casualty Co., supra, 415 (rejecting reading
of ‘‘definition of ‘ ‘‘[b]odily [i]njury’’ ’ so as to mean not
merely bodily harm, bodily sickness, and bodily disease,
but also nonbodily sickness and nonbodily disease’’
because ‘‘[t]he definition of ‘ ‘‘[b]odily [i]njury’’ ’ in the
policy does not provide: bodily harm; sickness; or dis-
ease’’).
We also disagree with Vanderbilt’s reliance on provi-
sions in the Lloyd’s policy form, including the limits of
liability and special conditions, referring to ‘‘occu-
pational disease sustained by any employee of the
assured,’’ as ‘‘mak[ing] clear that ‘occupational disease’
is a type of claim that only applies to Vanderbilt’s
employees and is distinct from a ‘product liability’
claim, with separate policy limits.’’22 In the absence of
a specific definition of the term ‘‘occupational disease’’
to that effect in the policy’s definitions section, it is
significant that the occupational disease exclusions at
issue in this appeal are provided via endorsement,
which, like a ‘‘rider . . . is a writing added or attached
to a policy or certificate of insurance which expands
or restricts its benefits or excludes certain conditions
from coverage. . . . When properly incorporated into
the policy, the policy and the rider or endorsement
together constitute the contract of insurance, and are
to be read together to determine the contract actually
intended by the parties.’’ (Internal quotation marks
omitted.) Liberty Mutual Ins. Co. v. Lone Star Indus-
tries, Inc., supra, 290 Conn. 806; see also, e.g., Lexing-
ton Ins. Co. v. Lexington Healthcare Group, Inc., supra,
311 Conn. 55–56. If, however, ‘‘the endorsement itself is
clear and unambiguous, the content of the form policies
themselves is irrelevant . . . because [e]ndorsement
has also been defined generally to mean [a] written
or printed form attached to the policy which alters
provisions of the contract, and the word alter is synony-
mous with change.’’ (Internal quotation marks omitted.)
Liberty Mutual Ins. Co. v. Lone Star Industries, Inc.,
supra, 806; see id., 806–807 (concluding that summary
judgment was proper, even when insurer failed to sup-
ply policy provisions beyond clear and unambiguous
endorsements, because ‘‘[e]ven a policy provision that
contradicts directly the terms of the endorsement is
irrelevant to the disposition of the summary judgment
motion’’). Thus, even reading the Lloyd’s provisions in
harmony, the fact that the occupational disease exclu-
sion lacks the language confining its application to
Vanderbilt’s employees, as found elsewhere in the
Lloyd’s policy, confirms further that such language was
not intended to exist in the exclusion.
Although the occupational disease exclusion uses the
term ‘‘occupational disease’’ broadly and without quali-
fication, ‘‘[t]he breadth of this exclusion does not render
it any less clear and unambiguous . . . .’’ Id., 800; see
id., 799–800 (concluding that silicon exclusion defining
‘‘ ‘silicon’ ’’ as ‘‘ ‘the mineral in any form,’ ’’ excluded
silicosis and silica related hazards that ‘‘cannot exist in
the absence of [the element] silicon’’); Peerless Ins. Co.
v. Gonzalez, 241 Conn. 476, 483, 697 A.2d 680 (1997)
(‘‘Because there is no requirement that a policy exclu-
sion be cast in specific, rather than general, terms, the
fact that the policy’s lead exclusion contains no express
reference to lead paint does not support [the insured’s]
contention that lead paint falls outside the purview of
the exclusion. The relevant inquiry is not whether the
policy issued by [the insurer] expressly excludes lead
paint from its coverage but, rather, whether the lan-
guage of the exclusionary provision nevertheless clearly
and unambiguously applies to lead paint.’’).
We also acknowledge Vanderbilt’s argument that
the occupational disease exclusion should not be read
in a way that renders the liability coverage provided by
the policy meaningless. Although this argument is at
first pass tempting, as noted by the Appellate Court;
see R.T. Vanderbilt Co. v. Hartford Accident & Indem-
nity Co., supra, 171 Conn. App. 258 n.92; Vanderbilt’s
argument is undercut by the stipulation between the
parties that, for purposes of litigating the applica-
tion of the occupational disease exclusion, (1) ‘‘[n]one
of the plaintiffs in any of the underlying actions
allege[s] that [he or she is] or ever [was a] Vanderbilt
[employee],’’ and (2) ‘‘[t]he underlying actions can be
classified into three categories, based on the alleged
exposure of the underlying plaintiff to Vanderbilt prod-
ucts,’’ specifically ‘‘Category A—alleged exposure is
claimed solely through workplace exposure,’’ ‘‘Cate-
gory B—alleged exposure is claimed through a combi-
nation of workplace exposure and exposure outside of
the workplace,’’ and ‘‘Category C—alleged exposure is
claimed solely through exposure outside of the work-
place.’’ The stipulation provides citations to multiple
exemplar cases under each category. The existence of
categories B and C indicates that the Appellate Court’s
reading of the plain language of the occupational dis-
ease exclusion does not completely vitiate the coverage
provided by the policy. Indeed, even a significant exclu-
sion limiting available coverage does not mean that the
insured did not get the coverage for which it bargained,
or that the ‘‘insurance policies . . . are rendered mean-
ingless by virtue of the denial of coverage . . . .’’
Schilberg Integrated Metals Corp. v. Continental Casu-
alty Co., 263 Conn. 245, 270–71, 819 A.2d 773 (2003);
see id. (no evidence that absolute pollution exclusion
rendered policies ‘‘meaningless’’ given that they ‘‘pro-
vide coverage for a wide variety of accidents and
mishaps . . . that may occur during [the plaintiff’s rou-
tine business activities]’’ [internal quotation marks
omitted]).
Finally, the case law cited by the parties, none of
which interprets an occupational disease exclusion,
simply bears out that an occupational disease may be
compensable on the first-party basis by an affected
employee’s workers’ compensation employer, or on a
third-party basis by another tortfeasor—like Vander-
bilt.23 In particular, we disagree with Vanderbilt’s reli-
ance on the decision of the Maryland Court of Special
Appeals in Commercial Union Ins. Co. v. Porter Hay-
den Co., supra, 116 Md. App. 605, for the proposi-
tion that ‘‘the phrase ‘occupational disease’ cannot be
interpreted outside of the employer-employee context
without creating ambiguity.’’ In that case, the court
rejected an insurer’s argument that a general liability
policy that covered only ‘‘ ‘accidents’ ’’ did not cover
claims of asbestos related diseases resulting from work-
place exposure. Id., 697; see id., 701 (concluding that
inhalation of asbestos fibers ‘‘is indisputably a personal
bodily injury whether or not it is also an occupational
disease,’’ thus triggering coverage because, even ‘‘if
‘occurrence’ and ‘accident’ are not precise synonyms,
they are nonetheless largely overlapping terms and they
include ‘continuous or repeated exposure to conditions
which result in bodily injury’ ’’). The Maryland court
distinguished the insurer’s reliance on cases that have
‘‘treated ‘occupational diseases,’ on the one hand, and
‘personal bodily injuries caused by accident,’ on the
other hand, as mutually exclusive categories,’’ as ‘‘taken
from the very special and statutory world of [w]orkers’
[c]ompensation law. It is a body of law that is not con-
cerned with fault or liability coverage based on fault;
it is concerned with whether certain forms of disability
were [job related]. Although [job related] injury and
[job related] disease are slowly evolving toward a single
compensable phenomenon, their respective histories
have been widely divergent. That divergence has pro-
duced a number of linguistic anomalies that are peculiar
to [w]orkers’ [c]ompensation law.’’ Id., 697–98. We dis-
agree with Vanderbilt’s reliance on Commercial Union
Ins. Co. because that case does not interpret an occu-
pational disease exclusion or explain why commonly
used definitions of the term ‘‘occupational disease’’ are
inherently ambiguous. Indeed, the Maryland court
emphasized that, ‘‘[e]ven if ‘occupational disease’ and
‘personal bodily injury as a result of an accident’ are
mutually exclusive terms in [w]orkers’ [c]ompensation
law, that mutual exclusivity by no means carries over
into general tort law.’’24 (Emphasis added.) Id., 701.
Given the clear and unambiguous meaning of the
term ‘‘occupational disease,’’25 we conclude that the
Appellate Court properly construed the occupational
disease exclusions to ‘‘bar coverage for occupational
disease claims brought not only by employees of Vand-
erbilt but also by individuals who contracted an occu-
pational disease in the course of their work for other
employers.’’ R.T. Vanderbilt Co. v. Hartford Accident &
Indemnity Co., supra, 171 Conn. App. 269–70. The
Appellate Court, therefore, properly reversed the deci-
sion of the trial court, which had adopted a reading of
the occupational disease exclusions to the contrary.26
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
‘‘The action was filed by R.T. Vanderbilt Company, Inc. During the trial
court proceedings, the court granted that company’s motion to substitute
its successor, Vanderbilt Minerals, LLC, as the . . . plaintiff. For conve-
nience, we refer to both entities as ‘Vanderbilt’ throughout this opinion.’’
R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App.
61, 75 n.1, 156 A.3d 539 (2017).
2
The insurer defendants that are the appellants in Docket No. SC 20000
are Travelers Casualty and Surety Company, formerly known as Aetna Casu-
alty and Surety Company, and St. Paul Fire and Marine Insurance Company.
The insurer defendants that are the appellants in Docket No. SC 20001
are Mt. McKinley Insurance Company and Everest Reinsurance Company,
with Clearwater Insurance Company and later TIG Insurance Company
subsequently substituted for Mt. McKinley, along with Pacific Employers
Insurance Company, Century Indemnity Company, Ace Property and Casu-
alty Insurance Company, Old Republic Insurance Company, Certain Under-
writers at Lloyd’s, London, Certain London Market Insurance Companies,
American International Underwriters Insurance Company, Granite State
Insurance Company, Fireman’s Fund Insurance Company, American Insur-
ance Company, Westport Insurance Corporation, National Casualty Com-
pany, Employers Mutual Casualty Company, Munich Reinsurance America,
Inc., and Zurich International (Bermuda) Limited.
The insurer defendants that are the appellees in Docket No. SC 20003 are
National Casualty Company, Pacific Employers Insurance Company, Certain
Underwriters at Lloyd’s, London, and Certain London Market Insurance
Companies, Zurich Reinsurance Company Limited, Everest Reinsurance
Company, Westport Insurance Corporation, and Fireman’s Fund Insurance
Company. We refer to the insurer defendants individually when appropriate.
For the history of the direct and third-party claims against the various
insurer defendants, see R.T. Vanderbilt Co. v. Hartford Accident & Indem-
nity Co., 171 Conn. App. 61, 76–78, 156 A.3d 539 (2017).
3
We granted the petition of Travelers Casualty and Surety Company and
St. Paul Fire and Marine Insurance Company for certification to appeal,
limited to the following issues: ‘‘1. Did the Appellate Court properly affirm
the trial court’s adoption of a ‘continuous trigger’ theory of coverage for
asbestos related disease claims as a matter of law and the trial court’s
related preclusion of expert testimony on current medical science regarding
the actual timing of bodily injury from such disease?
‘‘2. Did the Appellate Court properly affirm the trial court’s adoption of
an ‘unavailability of insurance’ exception to the ‘time on the risk’ rule of
contract law, which provides for pro rata allocation of defense costs and
indemnity for asbestos related disease claims?’’ R.T. Vanderbilt Co. v. Hart-
ford Accident & Indemnity Co., 327 Conn. 923, 171 A.3d 63 (2017).
We also granted the petition of Mt. McKinley Insurance Company and
Everest Reinsurance Company, limited to the following issues: ‘‘1. Did the
Appellate Court properly affirm the trial court’s adoption of a ‘continuous
trigger’ theory of coverage for asbestos related disease claims as a matter
of law and the trial court’s related preclusion of expert testimony on current
medical science regarding the actual timing of bodily injury from such
disease?
‘‘2. Did the Appellate Court properly affirm the trial court’s adoption of
an ‘unavailability of insurance’ exception to the ‘time on the risk’ rule of
contract law, which provides for pro rata allocation of defense costs and
indemnity for asbestos related disease claims?
‘‘3. Did the Appellate Court properly interpret pollution exclusion clauses
in certain insurance policies as applicable only to claims arising from ‘tradi-
tional’ environmental pollution and not to those arising from asbestos expo-
sure in indoor working environments?’’ R.T. Vanderbilt Co. v. Hartford
Accident & Indemnity Co., 327 Conn. 923, 923–24, 171 A.3d 62 (2017).
Finally, we also granted Vanderbilt’s cross petition for certification to
appeal, limited to the following issue: ‘‘Did the Appellate Court properly
interpret occupational disease exclusion clauses in certain insurance poli-
cies as precluding coverage for claims of occupational disease, regardless
of whether the claimant was employed by the policyholder or by a third-
party user of the claimant’s allegedly harmful product?’’ R.T. Vanderbilt Co.
v. Hartford Accident & Indemnity Co., 327 Conn. 925, 171 A.3d 61 (2017).
4
For the sake of brevity, we recite only the most salient background facts
and procedural history, as distilled from the record and the Appellate Court’s
opinion. Readers desiring a more comprehensive review of this case’s com-
plex facts and procedural history should consult the excellent recitation in
the Appellate Court’s opinion. See R.T. Vanderbilt Co. v. Hartford Acci-
dent & Indemnity Co., supra, 171 Conn. App. 76–87.
5
As the Appellate Court noted, the ‘‘ ‘phrase ‘‘follow form’’ refers to the
practice, common in excess policies, of having the [second layer] coverage
follow substantively the primary layer provided by the main insurer . . . .’ ’’
R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn.
App. 257 n.91.
As the Appellate Court also noted, ‘‘the term ‘umbrella coverage’ is often
used not only with reference to policies that offer both excess coverage
and primary drop-down insurance, but also specifically to the drop-down
portion of such policies.’’ Id., 276 n.101.
6
‘‘Throughout this opinion, we use the terms ‘long latency,’ ‘long-tail,’ and
‘progressive injury’ interchangeably. Those terms refer to the fact that toxic
tort claims typically allege that exposure to toxins such as asbestos causes
a series of continuing, indivisible injuries that develop gradually over time
but may not manifest for many years.’’ R.T. Vanderbilt Co. v. Hartford
Accident & Indemnity Co., supra, 171 Conn. App. 78 n.5.
7
For those specific findings, see R.T. Vanderbilt Co. v. Hartford Acci-
dent & Indemnity Co., supra, 171 Conn. App. 80–82.
8
See R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra,
171 Conn. App. 187 n.54 (noting immaterial miscalculation with respect to
length of allocation block).
9
‘‘Everest [Reinsurance Company] filed an immediate appeal from the
trial court’s Phase I and Phase II rulings on the ground that the rulings
constituted a final judgment as to it. Vanderbilt and other defendants were
subsequently granted permission to file interlocutory appeals pursuant to
Practice Book § 61-4 (a), which provides in relevant part that an interlocutory
ruling is considered to be an appealable final judgment when ‘the trial court
makes a written determination that the issues resolved by the judgment are
of such significance to the determination of the outcome of the case that
the delay incident to the appeal would be justified, and the chief justice
or chief judge of the court having appellate jurisdiction concurs.’ ’’ R.T.
Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171 Conn.
App. 83–84 n.9.
10
For a summary of all of the issues considered by the Appellate Court,
see R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., supra, 171
Conn. App. 84–87.
11
For a listing of these secondary insurers, see footnote 2 of this opinion.
12
‘‘The trial court found that the minor variations in policy language
between the two versions are not relevant to the question of whether the
occupational disease exclusions apply to nonemployees of the policyholder.
On appeal, the parties do not challenge this finding or argue that the two
provisions are materially different.’’ R.T. Vanderbilt Co. v. Hartford Acci-
dent & Indemnity Co., supra, 171 Conn. App. 256 n.90.
13
See footnote 5 of this opinion.
14
‘‘For this reason, [the Appellate Court] reject[ed] Vanderbilt’s argument
that the [insurer] defendants’ interpretation of the occupational disease
exclusions would render much of the coverage afforded by the policies
‘illusory.’ At the very least, the exclusions would not bar coverage for claims
brought by complainants in category 3.
‘‘[The Appellate Court] note[d] in this respect that the parties . . . neither
briefed nor asked [it] to resolve the question of whether, if the occupational
disease exclusions do apply to nonemployees, they bar coverage for underly-
ing actions in category 2, which allege both workplace and nonworkplace
exposure. That question will fall to the trial court on remand to address in
the first instance.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity
Co., supra, 171 Conn. App. 258 n.92.
15
On this point, the Appellate Court relied on, inter alia, a Harvard Law
Review note, ‘‘Compensating Victims of Occupational Disease,’’ 93 Harv. L.
Rev. 916, 926 (1980), in support of the proposition that, at the time, there
was a ‘‘proliferation’’ of litigation concerning occupational diseases, in which
individuals barred by workers’ compensation laws from ‘‘suing their employ-
ers were instead ‘su[ing] the manufacturer or seller of a product used in
the workplace if that product caused the illness.’ ’’ R.T. Vanderbilt Co. v.
Hartford Accident & Indemnity Co., supra, 171 Conn. App. 264. But see
footnote 25 of this opinion.
16
We note that the dictionary definition of ‘‘occupational disease’’ has
remained consistent in all material aspects for many decades, both preceding
and succeeding the drafting of the policy provisions at issue in this appeal.
Compare American Heritage College Dictionary (4th Ed. 2007) p. 961 (defin-
ing ‘‘occupational disease’’ as ‘‘[a] disease resulting from the conditions of
a person’s work, trade, or occupation’’), with Webster’s New International
Dictionary (2d Ed. 1934) p. 1684 (defining ‘‘occupational disease’’ as ‘‘[a]
disease brought on by or arising from the occupation of the patient, as
miner’s phthisis, etc.’’).
17
Legal dictionary definitions are also relevant to our textual analysis of
the policy provisions at issue. See, e.g., Lexington Ins. Co. v. Lexington
Healthcare Group, Inc., supra, 311 Conn. 42–43 (considering conventional
and legal dictionary definitions of term ‘‘related’’ in insurance policy);
Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, 247
Conn. 801, 810–11, 724 A.2d 1117 (1999) (considering conventional and
Black’s Law Dictionary definition of term ‘‘publication’’ to determine
whether underlying claims constituted slander covered by commercial gen-
eral liability policy).
18
We note that the immediately preceding edition of Black’s Law Diction-
ary defined ‘‘occupational disease’’ more generally—akin to the ordinary
language dictionaries—as a ‘‘[d]isease gradually contracted in usual and
ordinary course of employment, because thereof, and incidental thereto.’’
Black’s Law Dictionary (4th Ed. 1968) p. 1230; see also Ballentine’s Law
Dictionary (3d Ed. 1969) p. 879 (‘‘Occupational disease’’ is ‘‘[a] disease which
develops gradually and imperceptibly as a result of engaging in a particular
employment and is generally known and understood to be a usual and
natural incident or hazard of such employment. . . . A disease caused by
or especially incident to a particular employment. . . . Something other
than an accidental injury. But none the less a personal injury, the injury
being regarded as sustained when the employee becomes unable to work.’’
[Citations omitted; emphasis added.]).
19
In a footnote in its brief, Vanderbilt crafts a hypothetical to contend that
‘‘[a]pplying ‘occupational disease’ outside of the context of claims brought
against Vanderbilt by its employees leads to absurd results,’’ namely, a high
school student alleging exposure to talc while working part-time at a family
business or a babysitter alleging exposure to talc in the home where he or
she is babysitting. Vanderbilt states that the ‘‘insurers would argue that the
students were ‘working’ when they were allegedly exposed to talc and,
therefore, [that] the ‘occupational disease’ exclusions bar coverage.’’ We
disagree that this hypothetical is illustrative of an absurd result, even under
the Black’s Law Dictionary definition propounded by Vanderbilt. Although
the hypothetical babysitter’s disease might well have been contracted during
his or her employment, that fact does not, without more, render it occupa-
tional in nature. See Black’s Law Dictionary (5th Ed. 1979) p. 973; see, e.g.,
2 M. Rothstein et al., Employment Law (6th Ed. 2019) § 7:24 (‘‘[a]n ailment
does not become an occupational disease simply because it is contracted
on the employer’s premises’’ [internal quotation marks omitted]). Put differ-
ently, in determining whether the disease in the hypothetical argued by
Vanderbilt is occupational in nature, the babysitter performing ordinary
child care tasks might well be situated differently from the other student
in the hypothetical who works at a family business, if that family business
is an industry that had peculiar incidence of diseases occasioned by exposure
to talc.
20
Indeed, this court previously has rejected attempts to import other
areas of the law to vary otherwise clear and unambiguous insurance policy
language. In concluding that ‘‘emotional distress’’ was not ‘‘bodily injury’’
for purposes of an insurance policy, this court rejected the argument that
‘‘emotional distress is within the insurance policy definition of bodily injury
because modern medical science teaches that emotional distress is accompa-
nied by some physical manifestations,’’ as well as that ‘‘such an interpretation
is consistent with our precedents in the areas of tort and workers’ compensa-
tion law.’’ Moore v. Continental Casualty Co., 252 Conn. 405, 414, 746
A.2d 1252 (2000). Stating that we did ‘‘not question the modern medical
understanding of the interrelatedness of the mind and body,’’ this court
nevertheless ‘‘disagree[d] that such an understanding determines the mean-
ing of the policy language in question in the present case. We also disagree[d]
with the contention that our precedents in the areas of tort and workers’
compensation law appropriately inform the meaning of that policy language.’’
Id., 414–15.
21
The Pacific policy provides that it ‘‘does not apply . . . to any obligation
for which the [i]nsured or any carrier as his insurer may be held liable under
any workmen’s compensation, unemployment compensation or disability
benefits law, or under any similar law . . . .’’ A separate rider to the Pacific
policy states that ‘‘[t]his policy does not apply to personal injury to any
employee of the insured arising out of and in the course of his employment
by the insured or to any obligation of the insured to indemnify another
because of damages arising out of such injury.’’
The Lloyd’s policy provides that it ‘‘shall not apply . . . to any obligation
for which the [a]ssured and any company as its insurer may be held liable
under any [w]orkmen’s [c]ompensation, unemployment compensation or
disability benefits law provided, however, that this exclusion does not apply
to liability of others assumed by the [n]amed [a]ssured under contract or
agreement . . . .’’
22
As Vanderbilt notes, similar references to ‘‘occupational disease’’ are
not found in the 1985 Pacific policy form.
23
Indeed, Connecticut’s workers’ compensation statutory scheme contem-
plates third parties being held liable in tort for injuries that are compensable
under the act, including occupational diseases; see General Statutes § 31-
275 (15); by providing an employer the right to intervene in an action brought
by its employee against a third-party tortfeasor, in order to recover the
benefits paid. See General Statutes § 31-293 (a); Nichols v. Lighthouse Res-
taurant, Inc., 246 Conn. 156, 164–65, 716 A.2d 71 (1998). Put differently,
the exclusivity of the workers’ compensation remedy under statutes such
as General Statutes § 31-284 is between the employee and the employer.
See, e.g., Hernandez v. Cavaliere Custom Homes, Inc., 511 F. Supp. 2d 221,
226 (D. Conn. 2007); Mello v. Big Y Foods, Inc., 265 Conn. 21, 25–26, 826 A.2d
1117 (2003); Ferryman v. Groton, 212 Conn. 138, 146, 561 A.2d 432 (1989).
24
We also disagree with Vanderbilt’s reliance on Nolan v. Johns-Manville
Asbestos & Magnesia Materials Co., supra, 74 Ill. App. 3d 778, for the
proposition that ‘‘the phrase ‘occupational disease’ related only to work-
men’s compensation . . . .’’ In that product liability case, the court followed
its workers’ compensation case law and adopted the discovery rule to govern
the running of the statute of limitations. Id., 788. Vanderbilt relies on the
following observation in Nolan: ‘‘We are thoroughly cognizant of the distinc-
tions between the present case and an occupational disease case seeking
statutory compensation such as Madison [v. Wedron Silica Co., 352 Ill. 60,
184 N.E. 901 (1933)]; however, the analysis drawn by the [Illinois Supreme
Court] is useful in a case such as this, [in which] the disease of asbestosis
according to expert testimony, can develop over a period of ten to twenty-
five years, even though the action pursued here is for [product] liability
rather than workmen’s compensation.’’ Nolan v. Johns-Manville Asbestos &
Magnesia Materials Co., supra, 788. Again, nothing in the cited portions of
Nolan supports the proposition that occupational disease is a concept that
is linguistically meaningless beyond the workers’ compensation context;
instead, they support the opposite proposition, namely, that the term has
applicability in a variety of legal settings. Nor does Nolan describe specifi-
cally any applicable ‘‘distinctions’’ between workers’ compensation and the
common law.
We similarly disagree with Vanderbilt’s reliance on Ins. Co. of North
America v. Forty-Eight Insulations, Inc., supra, 451 F. Supp. 1230. In that
insurance coverage case, the court declined to apply a manifestation trigger
for the underlying product liability claim, deeming the common-law con-
tracts principles distinguishable from the statutory ‘‘last employer’’ rule that
governs coverage for workers’ compensation claims. Id., 1240–41. Again,
this case does nothing to elucidate the meaning of the occupational disease
exclusion, with the court’s failure to refer to the underlying claims as ‘‘occu-
pational diseases’’ both unexplained, and in our view, purely incidental.
Similarly, the court does not state in any way that occupational disease is
a phrase with a distinct meaning in the context of workers’ compensation,
as opposed to the common law.
The cases cited by National Casualty similarly do not interpret an occupa-
tional disease exclusion, and stand only for the proposition that a claim
arising from an occupational disease may exist independently of a workers’
compensation claim. See TKK USA, Inc. v. Safety National Casualty Corp.,
supra, 727 F.3d 788–90 (common-law claim against employer for negligence
is covered under employer’s liability coverage, even if underlying claim
is statutorily barred by state occupational disease compensation statute,
because of gaps in statute, and ‘‘covered loss’’ would include defense of
even groundless claim); Rodriguez v. E.D. Construction, Inc., supra, 126
Conn. App. 728 (independent contractor was excluded from participation
in workers’ compensation system); Wyness v. Armstrong World Industries,
Inc., supra, 171 Ill. App. 3d 677 (surviving spouse of insulator who died
from asbestos related lung cancer brought wrongful death action against
manufacturers of insulation); Tooey v. AK Steel Corp., supra, 623 Pa. 82(exclusivity provision of workers’ compensation act did not bar common-
law action by employee against employer when occupational disease claim
manifested beyond act’s limitation period); United National Ins. Co. v. J.H.
France Refractories Co., supra, 36 Pa. D. & C.4th 409–10 (manufacturer
fraudulently procured commercial general liability insurance despite knowl-
edge of pending third-party product liability claims against it arising from
asbestosis injuries).
25
Vanderbilt’s criticism of the Appellate Court’s reliance on two law review
articles and an American Bar Association report to elucidate the apparent
purpose of the occupational disease exclusions, as well as the apparent
‘‘mutual understanding’’ of the parties with respect to the policies at issue,
is, however, well taken. See R.T. Vanderbilt Co. v. Hartford Accident &
Indemnity Co., supra, 171 Conn. App. 264 and n.95, citing W. Viscusi, ‘‘Struc-
turing an Effective Occupational Disease Policy: Victim Compensation and
Risk Regulation,’’ 2 Yale J. on Reg. 53, 65 (1984); Note, ‘‘Compensating
Victims of Occupational Disease,’’ 93 Harv. L. Rev. 916, 926 (1980); American
Bar Association, ABA Blueprint for Improving the Civil Justice System:
Report of the ABA Working Group on Civil Justice System Proposals (1992)
p. 53. As Vanderbilt notes, the law review articles both were published after
the Lloyd’s policy was issued, and the American Bar Association report was
published after both policies were issued, and, thus, neither could have had
affected the parties’ intent. Moreover, given the plain and unambiguous
language of the occupational disease exclusions, it simply was unnecessary
to consider ‘‘legal scholarship from that era’’ in support of the conclusion
that ‘‘the insurance industry was concerned over the emerging proliferation
of private litigation by workers who, having developed long latency diseases
after exposure to asbestos and other alleged industrial toxins, sought to
circumvent the workers’ compensation system and sue manufacturers of
those products.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity
Co., supra, 265–66. Indeed, this extratextual focus on the intent of the
insurers runs counter to our well established approach of interpreting insur-
ance policies, which focuses on how the language would be viewed by the
layman, or policyholder. See, e.g., Nationwide Mutual Ins. Co. v. Pasiak,
supra, 327 Conn. 238–39.
26
As Vanderbilt acknowledges, whether the insurers waived their right to
invoke the occupational disease exclusions via a reservation of rights or
failing to plead it as a special defense in this action is a question reserved
for the next phase of this complex litigation. Accordingly, we agree with
the Appellate Court’s direction to the trial court to ‘‘consider Vanderbilt’s
alternative argument that certain defendants are precluded from invoking
the exclusions because they failed to timely plead the exclusions as a special
defense.’’ R.T. Vanderbilt Co. v. Hartford Accident & Indemnity. Co., supra,
171 Conn. App. 270.