Textron v. Travelers Casualty and Surety Co.

Filed 2/25/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TEXTRON, INC., B262933
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC475622)
v.
TRAVELERS CASUALTY AND
SURETY COMPANY,
Defendant and Respondent.
APPEAL from a Judgment of the Superior Court of Los Angeles
County. Mitchell L. Beckloff, Judge. Reversed.
Nossaman, Jennifer L. Meeker, Steven E. Knott; Pillsbury
Winthrop Shaw Pittman and Steven E. Knott for Plaintiff and
Appellant.
Dentons US, Ronald D. Kent and Susan M. Walker for Defendant
and Respondent.
This insurance coverage dispute between Appellant Textron Inc.
(Textron) and respondent Travelers Casualty and Surety Company
(Travelers) raises the issue whether an earlier choice of law ruling in a
Rhode Island coverage action between the parties qualifies for collateral
and judicial estoppel effect, thus precluding Textron from seeking
coverage under California law in the current California coverage action,
and leading to the conclusion that Textron’s claim is outside the policy
period.
In 2011, Textron was sued by a California resident in Los Angeles
Superior Court for damages caused by mesothelioma resulting from
asbestos exposure from Textron’s manufacturing operations in
California (the Esters action). After settlement of that action, Textron
initiated the instant California action against Travelers (later spawning
additional cross-complaints from both parties) to obtain a declaration
that Travelers owed a duty to defend and indemnify in the Esters action
under a series of Commercial General Liability (CGL) policies issued to
Textron by Travelers from January 1, 1966 to January 1, 1987 (the
Travelers policies).
Some 24 years earlier, in 1991, Textron was facing various
governmental and private lawsuits in 19 states, including California,
for environmental property damage and possible personal injury. In
Rhode Island (not a site of damage or injury), Textron brought a
declaratory relief action against 49 insurers involving 258 insurance
policies. It sought and received a ruling that Rhode Island law would
apply to interpret the policies. Among the insurers and policies
2
involved in the Rhode Island action were Travelers and the Travelers
polices.
The determinative question in this appeal is whether the Rhode
Island choice of law ruling has collateral and judicial estoppel effect,
thus precluding Travelers from seeking a ruling that California’s
“continuous trigger” rule (rather than Rhode Island’s “manifestation
trigger” rule) governs the definition of an “occurrence” under the
Travelers policies for determining coverage of the Esters action. The
trial court ruled that it did, and granted summary judgment for
Travelers. We conclude otherwise.
The key point is whether the identical issue was presented and
decided in the Rhode Island action. The answer lies in an unusual
confluence of principles governing collateral and judicial estoppel, the
interpretation of the term “occurrence” in standard CGL policies, and
conflict of laws. Contrary to Traveler’s position (and the trial court’s
ruling), the answer does not turn on whether in Rhode Island, for
claims of personal injury, Textron sought and received a ruling that
Rhode Island law applied to interpret the identical Travelers policies.
Rather, the determinative factor is whether, in ruling that Rhode Island
law applied to interpret the Travelers policies, the Rhode Island court
was presented with and decided the identical choice of law issue. That
choice of law issue is whether, under California’s governmental interest
analysis, California’s continuous trigger rule or Rhode Island’s
manifestation trigger rule should apply to an occurrence of continuous
or progressively deteriorating illness suffered by a California resident,
in California, caused by Textron’s activities in California. Choice of law
3
is necessarily a fact intensive analysis, and for several reasons we
conclude that the factual predicate of the Rhode Island action was not
adequate to litigate and decide the identical choice of law issue
presented in this case. Thus, neither collateral nor judicial estoppel
applies, and we reverse the trial court’s grant of summary judgment for
Travelers on Textron’s declaratory relief complaint, and on the parties’
respective cross complaints. We remand for further appropriate
proceedings.
BACKGROUND
1. The Travelers Policies
The relevant Travelers policies (multiple-risk CGL policies
insuring Textron’s activities in multiple states) were issued by
Travelers during the period January 1, 1966 to January 1, 1987.1 They
covered numerous manufacturing operations of Textron and its
subsidiary divisions. The policies insured against “damages for death
and for care and loss of services resulting from personal injury and
damages for loss of use of property resulting from property damage.”
Section 4.11 of the policies defined “‘[p]ersonal injury’” in relevant part
as “bodily injury, disability, shock, mental anguish and mental injury,
sickness or disease, including death resulting therefrom; and injury
1 One version of the policies was in effect from January 1, 1966 to
January 1, 1972, while another version was in effect from January 1, 1973 to
January 1, 1987. These policies contain different definitions for “personal
injury” and “property damage” not relevant here. The policy numbers in the
Rhode Island litigation are the same as those in the present litigation.
4
arising [from] wrongful entry or imprisonment, disparagement of
property . . . sustained by any person.” The policies defined
“‘occurrence’” as “an accident, event or a continuous or repeated
exposure to conditions which results, during the policy period, in
personal injury or property damage which is neither expected nor
intended from the standpoint of the Insured.” The policies did not have
choice-of-law provisions, and provided that “[Travelers] shall have the
right and duty to defend any suit against the insured brought within
the United States of America, its Territories or Possessions or Canada
seeking damages on account of such personal injury or property
damage.”
2. The Esters Action
In March 2011, the Esters action was filed against Textron in Los
Angeles Superior Court, seeking damages for mesothelioma diagnosed
in December 2010 arising out of Textron’s operations in California.2
Plaintiff Esters alleged that her mother had been employed by Textron
in Los Angeles and Santa Ana from 1950 to 1983, and that Esters had
been exposed to asbestos through her mother’s exposure.
Textron tendered the action to Travelers, as well as to Liberty
Mutual Insurance Company (Liberty) and the Hanover Insurance
Company (Hanover).3 Travelers provided a defense, subject to a
2 Esters sued many other defendants not here relevant.
3 Hanover and Liberty insured Textron from January 1, 1958 through
January 1, 1962. Textron initially named them as defendants in its instant
5
reservation of rights, and refused to settle unless Textron and the other
two insurers agreed to Travelers’ condition that any settlement would
also be subject to a full reservation of rights. Ultimately, in December
2011, the Esters case settled for $2.4 million. With a reservation of
rights, Travelers, Liberty, and Hanover funded the settlement:
Travelers paid $1.8 million, Liberty paid $432,000, and Hanover paid
$168,000.
3. The Instant Action
Textron commenced the instant action by filing a declaratory
relief complaint against Travelers, seeking a declaration that the Esters
action was covered by the Travelers policies. Travelers then cross-
complained against Textron, seeking reimbursement for the costs of
providing a defense and funding the settlement in the Esters action.
Textron responded with a cross-complaint against Travelers for breach
of contract and bad faith.
Central to the dispute between the parties is: (1) the conflict
between Rhode Island and California law in defining a covered
occurrence under the Travelers policies for continuous or progressively
deteriorating personal injury, and (2) the effect, if any, that the prior
Rhode Island action has on Textron’s right to have California law rather
than Rhode Island law govern.
declaratory relief action, but later dismissed them, and they are not parties to
this appeal.
6
4. Conflict in Triggers of Coverage
A brief explanation of “triggers of coverage” is helpful. “A
recurring problem in interpreting standard CGL policies that provide
coverage for injuries ‘caused by an occurrence’ is determining what has
come to be called the ‘trigger of coverage’—that is, the operative event
which activates the insurer’s defense and indemnity obligations. As the
Supreme Court recently explained, the word ‘trigger’ is not found in the
CGL policies themselves, nor does the Insurance Code define ‘trigger of
coverage.’ Instead, ‘trigger of coverage’ is a term of convenience used to
describe what must happen in the policy period to give rise to insurance
coverage. (Montrose Chemical Corp. v. Admiral Ins. Co. [(1995)] 10
Cal.4th 645, 655, fn. 2 (Montrose).)” (Armstrong World Industries, Inc.
v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th 1, 39.)
Relevant to the dispute between Textron and Travelers are two
triggers. The first is the “continuous trigger,” applied by California
courts to occurrences of continuous or progressively deteriorating injury
such as injury caused by exposure to asbestos. Under the continuous
trigger, “if specified harm is caused by an included occurrence and
results, at least in part, within the policy period, it perdures to all
points of time at which some such harm results thereafter.” (Aerojet-
General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 57.)
The California Supreme Court first adopted this analysis for third party
claims of continuous or progressively deteriorating injury in 1995, in
Montrose, supra, 10 Cal.4th 645.
7
The second trigger is the “manifestation trigger,” which Travelers
contends Rhode Island applies to progressive injury. Under Rhode
Island’s version of this test, a covered occurrence exists “when the
damage . . . manifests itself, . . . is discovered or, . . . in the exercise of
reasonable diligence is discoverable.” (Textron, Inc. v. Aetna Cas. and
Sur. Co. (R.I. 2002) 754 A.2d 742, 746.) Travelers maintained that
because in the Esters action the mesothelioma was not diagnosed until
2010, it did not manifest until then, and because the Travelers policies
were in effect only for the period January 1, 1966 to January 1, 1987,
the Esters action was not a covered occurrence under Rhode Island law.
Travelers’ assertion that Rhode Island law applied to the
determination of coverage of the Esters claim was based on its view that
the prior Rhode Island action collaterally and judicially estopped
Textron from arguing that any law other than Rhode Island law
applied. Thus, we must explain the nature of the Rhode Island action
as presented by Textron in the summary judgment proceedings below.
5. The Rhode Island Action
More than 24 years before Textron was sued in the Esters action,
it was facing a myriad of lawsuits brought by private parties and
federal and state agencies alleging personal injury and property
damage caused by environmental contamination at various sites in 19
states, including California. In 1987, Textron brought a coverage action
in Rhode Island (not a site of any alleged damage or injury), in which it
sued 49 insurance carriers (which were incorporated in 15 different
states), including Travelers, seeking coverage under 258 policies issued
8
to Textron from 1960 to 1986, including the Travelers policies at issue
here.
In its operative complaint in that action, Textron alleged that
“[c]laims of various types, alleging property damage and personal injury
at various properties happening as early as 1960 and continuing
through to the present, have been asserted against Textron and its
divisions.” Textron attached “Information Summaries” setting forth the
claims for which it was seeking coverage listing each policy and location
of occurrence. They all involved some type of environmental
contamination from operations by Textron or its subsidiaries.4
Textron moved for partial summary judgment, seeking a ruling
that in determining the duty to defend under all 258 policies (most of
which did not contain a choice-of-law provision) the law of one state—
Rhode Island—should govern. Textron argued that Rhode Island uses a
“common-sense” interest-weighing test to resolve conflict of law
disputes. Textron identified no specific conflict between Rhode Island
4 The states involved were California, Illinois, Indiana, Michigan,
Pennsylvania, Kentucky, Oklahoma, South Carolina, North Carolina, New
Jersey, Maine, Wisconsin, Vermont, Missouri, Florida, Connecticut,
Massachusetts, New Hampshire, and New York.
The occurrences alleged to have occurred in California involved
(1) contamination by “[l]ead and other chemicals” in San Dimas; (2)
“[a]pproximately 650 gallons of acid” at Stringfellow Acid Pits in Glen Avon
Heights; (3) “[u]known quantities of various plant discharges including acids,
lye solution, oil soap, rinse water, hydraulic fluids, [and] 1-1-1
trichloroethane” at Visalia; (4) “[u]nspecified amount of oil, grease, solvents,
[and] paints from leaking underground storage tanks” at Valencia; and (5)
“[l]eaking underground storage tanks containing oil, grease, hydrocarbon,
perc, toluene” contaminating the soil in Pacoima.
9
law and the law of any of the 19 states in which the damage and injury
occurred, including California. Rather, Textron argued that Rhode
Island had the most significant interest of any single state because:
(1) Textron had maintained its principal place of business in Rhode
Island since 1949; (2) its risk management department was located in
Rhode Island; (3) the premiums on insurance policies sold to Textron
were paid from Rhode Island; and (4) the insurance policies and all
notices relating to insurance policies were delivered to Textron’s
principal place of business in Rhode Island.
In 1991, the Rhode Island court apparently agreed (though the
court’s written order does not state the court’s reasoning), and ruled
that Rhode Island law would govern the interpretation of all the
primary insurance policies sold to Textron “that are [the] subject matter
of the Motion for Partial Summary Judgment on the Duty to Defend.”
The Rhode Island action settled in 1995, and the action was dismissed.
6. Denial of Textron’s Motion for Summary Judgment in the
Instant Case
In the instant case, Textron moved for summary judgment on
Travelers’ cross-complaint for reimbursement of costs incurred in
defending and settling the Esters action. As here relevant, Textron
argued California law applied because under Civil Code section 1646, a
contract is to be interpreted accordance with the law and usage of the
place of its performance, which for the Esters action was California.
(See Frontier Oil Corp. v. RLI Ins. Co. (2007) 153 Cal.App.4th 1436,
10
1442–1443 [choice of law concerning interpretation of a contract is the
law of the place of performance].)
In opposition, Travelers relied on the ruling in the Rhode Island
action to argue that Textron was collaterally and judicially estopped to
argue that any law other than Rhode Island law applied to the policies.
In response, Textron argued that although Rhode Island law controlled
the policies in the Rhode Island action, that action did not involve a
personal injury asbestos claim and thus the issues were not identical in
both cases. Further, under California’s choice of law analysis, Textron
argued Rhode Island law should not control because California and
Rhode Island differed on the trigger of coverage for asbestos bodily
injury claims, and Rhode Island had no overriding interest in having its
law apply.
In September 2012, the trial court denied Textron’s motion for
summary judgment on Travelers’ cross-complaint. In doing so, it
concluded that Textron was estopped by the Rhode Island ruling to seek
application of California law.
7. Travelers’ Motions for Summary Judgment
In October 2012, after the denial of Textron’s motion for summary
judgment, Travelers filed motions for summary adjudication/summary
judgment against Textron on Textron’s declaratory relief complaint and
cross-complaint for breach of contract and bad faith, and on Travelers’
cross-complaint for reimbursement. As here relevant, Travelers argued
(as suggested in the trial court’s denial of Textron’s summary judgment
motion) that Textron was collaterally and judicially estopped from
11
arguing that Rhode Island law did not apply to interpret the Travelers
policies. Further, Travelers argued that under Rhode Island’s
manifestation trigger, the Esters action was not an occurrence within
the coverage period of the policies.
Textron responded that estoppel could not bar its claims, that
California law applied to the dispute, and that under the continuous
trigger rule, there existed a disputed material factual question whether
Esters’ claim was an occurrence within the coverage periods of the
Textron policies. In support of applying the continuous trigger rule,
Textron submitted a declaration from Dr. Arnold Brody, in which Dr.
Barry Horn, M.D. concurred, stating that injury from asbestos fiber
occurs within minutes of the first inhalation, but that the disease
continues to progress over many years. Dr. Horn believed Esters’
exposure occurred while doing her mother’s laundry and that her
exposure dated from 1964, when she was nine years old.
8. Initial Denial of Travelers’ Motions and Writ Proceedings
In August 2013, after reassignment to another judge, the trial
court denied Traveler’s motions, finding that there were triable issues
of fact regarding the “necessarily decided” element of collateral
estoppel.
Travelers filed a petition for a writ of mandate in the court of
appeal to compel a grant of summary judgment in its favor. On August
28, 2014, Division Three of this court issued a Palma notice stating that
the court was “considering the issuance of a peremptory writ of
mandate in the first instance . . . directing the respondent court to hold
12
a new hearing on the two motions for summary judgment and/or
summary adjudication filed by [Travelers] in view of our conclusion
[that] there is no triable issue of material fact, with the result as a
matter of law, Rhode Island law applies to the interpretation of the
Travelers Insurance policies at issue in this lawsuit.”5 In the body of
the notice, tracking in summary form the arguments made by
Travelers, the notice stated that “[i]t appear[ed] to this court” that
Textron was collaterally and judicially estopped to “deny that Rhode
Island law applies to the interpretation of the Travelers policies at issue
in this case.”
Before Division Three issued a substantive ruling, the case was
assigned to a third judge, who requested additional briefing on
Traveler’s motions and set the matter for hearing. On January 21,
2015, Division Three dismissed the writ petition as moot.6
5 When a writ petition is filed, the appellate court may (1) summarily
deny the petition, (2) issue an alternative writ or an order to show cause
pursuant to Code of Civil Procedure section 1087, or (3) issue a peremptory
writ in the first instance, pursuant to section 1088 and the procedure set
forth in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178–
179. The accelerated Palma procedure dispenses with the issuance of an
alternative writ, and with the requirement that the Court of Appeal afford an
opportunity for formal briefing and oral argument before ordering that a
peremptory writ issue. (Brown, Winfield & Canzoneri, Inc. v. Superior Court
(2010) 47 Cal.4th 1233, 1241.)
6 Pursuant to Textron’s request for judicial notice, we take such notice of
(1) the August 1, 2013 minute order taking the summary judgment motions
under submission and Judge Khan’s tentative ruling on the motions; and
Division Three’s notice of intent to grant peremptory writ of mandate in the
first instance dated August 28, 2014. We also take judicial notice, pursuant
to Travelers’ request, of this Court’s docket in the writ proceeding, Division
13
9. Trial Court Ruling at Issue in this Appeal
On January 28, 2015, the trial court granted Travelers’ motions
for summary judgment and vacated the prior ruling denying the
motions. The trial held that the prior proceeding in Rhode Island met
all the elements for application of collateral estoppel: same parties and
insurance policies, same issue, and a final ruling on the merits.
Similarly, the trial court found Textron was judicially estopped because
in the Rhode Island action it successfully took a position inconsistent
with its position seeking coverage of the Esters action.
The trial court further found that a Rhode Island court would
apply a manifestation trigger to a latent injury such as asbestos
poisoning, citing Eagle-Picher Industries, Inc. v. Liberty Mut. Ins. Co.
(1st Cir. 1982) 682 F.2d 12, which adopted a manifestation trigger of
coverage for an asbestosis claim. Because Esters’ disease was not
diagnosable until 2010, after the end of the Travelers policies periods,
the court concluded that Travelers had no duty to defend or to
indemnify Textron. For the same reason, Travelers was entitled to
reimbursement for its costs of defense and indemnity.
Thus, the trial court granted summary judgment for Travelers on
Textron’s declaratory relief complaint, on Textron’s bad faith cross-
complaint, and on Travelers’ reimbursement cross-complaint for the
Three’s order entered October 30, 2013 staying the underlying trial court
action, and the order entered in the writ proceeding on January 21, 2015,
dismissing the writ petition as moot. (Evid. Code, §§ 452, subd. (a), 459.)
14
cost of defending and settling the Esters action. The trial court entered
judgment accordingly. Textron appealed, and we reverse.7
DISCUSSION
Textron contends that the trial court erroneously applied
collateral and judicial estoppel to find that Rhode Island’s manifestation
trigger rule applied to determine coverage of the Esters’ action.
Further, Textron asserts that under the applicable California
continuous trigger rule, there is a material factual dispute whether
Esters’ claim was an occurrence within the coverage period of the
Textron policies. As we explain, we agree.
7 Obviously, our resolution of this case is contrary to the view expressed
in Division Three’s Palma notice stating that Textron was collaterally and
judicially estopped to argue Rhode Island law did not apply to interpret the
Travelers policies. That notice prompted the new hearing on Textron’s
motions which resulted in the trial court’s ruling (consistent with the view
expressed in the Palma notice) that Rhode Island law governed and Travelers
was entitled to judgment as a matter of law. It is unfortunate, to say the
least, that judicial economy has not been well-served by this turn of events,
and that the very able trial judge (Judge Mitchell Beckloff) will likely feel
(and rightly so) a sense of judicial whiplash. In explanation, we can only say
that on full analysis of this appeal under relevant principles of issue
preclusion and choice of law as applied to interpretation of multiple risk CGL
policies insuring risks in different states (principles not considered in the
Palma notice in the mooted writ proceeding), we respectfully disagree with
the tentative views expressed by Division Three of this court, and conclude
that Travelers was not entitled to judgment as a matter of law.
15
1. Standard of Review
“[T]he party moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that
burden, the burden shifts to the [other party] to show that a triable
issue of one or more material facts exists as to the cause of action.”
(Code of Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p.
850.) “In evaluating a grant of summary judgment, we review the
record de novo, ‘liberally construing the evidence in support of the party
opposing summary judgment and resolving doubts concerning the
evidence in favor of that party.’” (Abed v. Western Dental Services, Inc.
(2018) 23 Cal.App.5th 726, 738.)
2. Collateral Estoppel
We first discuss whether collateral estoppel precludes Textron
from seeking a ruling that California’s continuous trigger rule applies to
determine whether the Esters action constitutes a covered occurrence
under the Travelers policies. We conclude it does not.
Collateral estoppel (more specifically known as “issue preclusion”)
prevents relitigation of previously decided issues, rather than causes of
action. (Samara v. Matar (2018) 5 Cal.5th 322, 326.) It applies after
(1) final adjudication of (2) an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one who
was a party in the first suit or one in privity with that party. (Id. at p.
327.) “The purposes of collateral estoppel are to prevent inconsistent
16
judgments that undermine the integrity of the judicial system, promote
judicial economy by minimizing repetitive litigation, and protect
litigants from harassment by vexatious litigation. [Citations.]
Collateral estoppel is not an inflexible doctrine. Even if the minimal
requirements for its application are satisfied, the doctrine should not be
applied if considerations of policy or fairness outweigh the doctrine’s
purposes as applied in a particular case.” (Bostick v. Flex Equipment
Co., Inc. (2007) 147 Cal.App.4th 80, 97.)
For collateral estoppel to apply here, the key question is whether
the identical issue was presented and decided between Textron and
Travelers in the Rhode Island action.8 Collateral estoppel applies only
to issues that were truly litigated and decided between the parties in
the former action. “For purposes of collateral estoppel, an issue was
actually litigated in a prior proceeding if it was properly raised,
submitted for determination, and determined in that proceeding.
[Citation.] . . . ‘The “identical issue” requirement addresses whether
“identical factual allegations” are at stake in the two proceedings, not
whether the ultimate issues or dispositions are the same. [Citation.]’”
(Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511–512.)
Although the focus is on the identity of the specific issue litigated and
decided based on the facts presented, it has also been held that “[a]n
issue decided in a prior proceeding establishes collateral estoppel even
8 As the Rhode Island litigation was settled and dismissed with
prejudice, it was final for purposes of applying collateral estoppel. (See
Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533 [dismissal with
prejudice following a settlement constitutes a final judgment on the merits].)
17
if some factual matters or legal theories that could have been presented
with respect to that issue were not presented. [Citations.] A prior
decision does not establish collateral estoppel, however, on issues that
could have been raised and decided in the prior proceeding but were
not. [Citations.]” (Bridgeford v. Pacific Health Corp. (2012) 202
Cal.App.4th 1034, 1042–1043, italics added.) This “is not an easy rule
to apply, for the term ‘issue’ as used in this connection is difficult to
define, and the pleadings and proof in each case must be carefully
scrutinized to determine whether a particular issue was raised even
though some legal theory, argument or ‘matter’ relating to the issue was
not expressly mentioned or asserted.” (Clark v. Lesher (1956) 46 Cal.2d
874, 880–881.) Putting it as simply as we can, the factual predicate of
the legal issue decided in the prior case must be sufficient to frame the
identical legal issue in the current case, even if the current case
involves other facts or legal theories that were not specifically raised in
the prior case.
Here, application of collateral estoppel is further complicated by
the nature of the issue as to which collateral estoppel is asserted. To be
clear, that issue is not simply whether, in the Rhode Island coverage
action, Textron sought and received a ruling that Rhode Island law
applied to interpret the same policy language for personal injury claims
under which it seeks coverage in California of the Esters action. That is
certainly relevant, but not determinative. Rather, the determinative
point is whether the Rhode Island ruling that Rhode Island law applied
18
to interpret the Travelers policies decided the identical choice of law
issue presented here. It clearly did not.
When, as here, the parties’ contract does not designate the law
that governs, California uses the “government interest analysis” to
determine choice of law, under which “the forum [state court] ‘must
search to find the proper law to apply based upon the interests of the
litigants and the involved states.’” (Offshore Rental Co. v. Continental
Oil Co. (1978) 22 Cal.3d 157, 161.) We will assume (without deciding)
that Rhode Island’s “interest analysis” is the substantial equivalent
(though the parties have not specifically briefed that issue).9
The governmental interest analysis “involv[es] three steps: ‘First,
the court determines whether the relevant law of each of the potentially
affected jurisdictions with regard to the particular issue in question is
the same or different. Second, if there is a difference, the court
9 As discussed in one of the Rhode Island Supreme Court decisions cited
by Textron in its Rhode Island motion for summary adjudication, “years ago
in Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917 (1968), it was decided
that in negligence disputes involving a conflict in the laws of various states
this court would no longer have an unswerving adherence to the principle
which requires the application of the law of the jurisdiction where the injury
occurred. Instead, any determination regarding the applicable law will be
made after a consideration of several significant factors, one of which is the
location where the injury occurred. The ultimate choice of law will depend,
however, upon a determination regarding which jurisdiction had the most
significant interest in the litigation. In this interest-weighing approach
many factors are to be considered, including not only the place where the
injury occurred, but, in addition, the place where the conduct causing the
injury occurred, the domicile or residence of the litigants, and the place where
the relationship, if any, between the litigants is centered.” (Blais v. Aetna
Cas. & Sur. Co. (R.I. 1987) 526 A.2d 854, 856.)
19
examines each jurisdiction’s interest in the application of its own law
under the circumstances of the particular case to determine whether a
true conflict exists. Third, if the court finds that there is a true conflict,
it carefully evaluates and compares the nature and strength of the
interest of each jurisdiction in the application of its own law “to
determine which state’s interest would be more impaired if its policy
were subordinated to the policy of the other state” [citation], and then
ultimately applies “the law of the state whose interest would be the
more impaired if its law were not applied.”’” (Sullivan v. Oracle Corp.
(2011) 51 Cal.4th 1191, 1202.)
Here, the specific legal issue is whether the Esters action presents
a covered occurrence under the Textron policies. Factually, the Esters
action involves an alleged occurrence of continuing personal injury
(mesothelioma) suffered by a single California resident from exposure to
asbestos in California, caused by Textron’s activities in California. The
specific conflict of law issue in this factual and legal context is whether
the definition of a covered occurrence should be determined by:
(1) California’s continuous trigger rule, under which “if specified harm
is caused by an included occurrence and results, at least in part, within
the policy period, it perdures to all points of time at which some such
harm results thereafter” (Aerojet-General Corp. v. Transport Indemnity
Co., supra, 17 Cal.4th at p. 57); or (2) Rhode Island’s manifestation
trigger test, under which a covered occurrence exists “when the damage
. . . manifests itself, . . . is discovered or, . . . in the exercise of reasonable
diligence is discoverable.” (Textron, Inc. v. Aetna Cas. and Sur. Co.,
supra, 754 A.2d at p. 746.)
20
Obviously, that specific issue—which trigger rule should apply to
the Esters action—was not litigated and decided more than 24 years
earlier in the Rhode Island action. Thus, the issue presented and
decided in the Rhode Island action did not present “identical factual
allegations” to those made in the instant coverage dispute. (Hernandez
v. City of Pomona, supra, 46 Cal.4th at p. 512.) And although the
“ultimate issue” or “disposition”—giving interpretive meaning to the
term “occurrence” in the Travelers policies as applied to personal injury
—may be identical, that does not create an identity of issues for
collateral estoppel. (Id. at pp. 511–512.)10
Thus, the determination of identity of issues depends on an
examination of the record of the Rhode Island action to determine
whether, although the specific factual predicates are not the same, the
factual predicate in the Rhode Island action was sufficient to create the
identical choice of law issue presented here, even though some facts and
theories present here were not involved in the Rhode Island proceeding.
Travelers’ argument, at base, is that the instant case presents the
same choice of law issue, because in both actions, Textron sought
coverage under the same policy language for incidents of personal
injury principally located in California. But, for many reasons, the
argument does not fully consider the precise choice-of-law issue
10 Textron argues that the covered claims in the Rhode Island action did
not involve personal injury. However, in its operative complaint and in its
motion for partial summary judgment, Textron described the claims, in part,
as claims for personal injury. Nonetheless, whether the Rhode Island ruling
qualifies for collateral estoppel does not turn on whether in Rhode Island
Textron sought coverage of claims for personal injury.
21
presented in the Rhode Island case as compared to the choice of law
issue presented in the instant case by the Esters action.
First, Textron brought the Rhode Island case against 49 insurance
carriers (incorporated in 15 different states), seeking coverage under
258 policies for multiple occurrences of “property damage” and
“personal injury” occurring in 19 different states, including California
(but not Rhode Island). Textron’s motion for partial summary judgment
in the Rhode Island action identified no specific conflict between Rhode
Island law and the law of the 19 other states, much less a specific
conflict with California law. Indeed, it is questionable whether the
specific conflict of law here—conflicting trigger tests to determine
coverage of a claim of continuing or progressively deteriorating damage
or injury—could have been identified. The Rhode Island ruling
occurred in 1991, but the California Supreme Court did not adopt the
continuous trigger test for third party claims of continuous or
progressively deteriorating damage or injury until 1995, in Montrose,
supra, 10 Cal.4th 645. Before that, as discussed in Montrose, 10 Cal.4th
at pages 678–685, California law was unclear regarding whether the
manifestation trigger or continuous trigger applied to continuous injury
or damage. As the discussion in Montrose demonstrates, at the time of
the Rhode Island ruling in 1991, one California appellate decision had
adopted a “continuous occurrence” theory for continuing property
damage. (California Union Ins. Co. v. Landmark Ins. Co. (1983) 145
Cal.App.3d 462, 476 [applying continuous occurrence analysis to
successive coverage of third party claim of progressive property damage
caused by water leakage].) But that analysis was criticized in a 1988
22
decision involving a first party claim. (Home Ins. Co. v. Landmark Ins.
Co. (1988) 205 Cal.App.3d 1388, 1395 [“We also have concern that
California Union misapplied three pre-manifestation cases to hold a
postmanifestation carrier jointly and severally liable”].) And in the
most recent appellate decision before the Rhode Island ruling, the same
appellate court adopted a manifestation trigger for a third party claim
for continuous property damage caused by construction defects, and
rejected the continuous trigger analysis of California Union. (Fireman’s
Fund Ins. Co. v. Aetna Casualty & Surety Co. (1990) 223 Cal.App.3d
1621,1626–1628.) Thus, it is not at all apparent that a conflict in
triggers of coverage existed between California and Rhode Island when
the Rhode Island court ruled in 1991. Because the conflict did not
necessarily exist (and certainly was not expressly identified by Textron
or the Rhode Island court), it was not presented and decided as a choice
of law issue in the Rhode Island action.
Second, even if there were a conflict in 1991 between California
and Rhode Island’s trigger rules, Textron identified no California
interests to be balanced against Rhode Island’s interests to choose
which law to apply. Without identifying any conflict of law, Textron
simply argued that under Rhode Island’s “common-sense” interest-
weighing test, Rhode Island had the most significant interest of any
single state because: (1) Textron had maintained its principal place of
business in Rhode Island since 1949; (2) its risk management
department was located in Rhode Island; (3) premiums on insurance
policies sold to Textron were paid from Rhode Island; and (4) insurance
policies and all notices relating to insurance policies were delivered to
23
Textron’s principal place of business in Rhode Island. But there was no
mention of any California interests in applying its law to determine
coverage of occurrences of personal injury in California. Thus, as far as
the record of the Rhode Island action shows, no policy considerations
favoring California were actually presented to the Rhode Island court.
Third, as shown by the “Information Summaries” attached to
Textron’s operative complaint in the Rhode Island action, all the
occurrences, including those in California, involved some type of
environmental contamination and resulting property damage from
operations by Textron or its subsidiaries—property damage that might
also have resulted in unspecified claims for personal injury. But the
nature of the personal injuries—in particular, whether they were for
progressive or continuing injury such as the mesothelioma—was never
mentioned. However, the type of injury is an important component of
the choice of law issue presented by the Esters action, as it is the focal
point of the specific conflict of law presented.
Fourth, not surprisingly, given the choice of law issue as framed,
the short written ruling issued by the Rhode Island court did not
identify any relevant conflict of law between Rhode Island and any
state, much less California; did not describe the nature of any alleged
personal injury for which coverage was sought; and conducted no
analysis of California’s interests in applying its law to any of the
personal injury occurrences in California.
Fifth, to amplify on the point that no California interests were
raised as part of the choice of law balancing in Rhode Island, it is
important to recognize that when considering which state’s law applies
24
to covered occurrences under multi-risk, multi-state CGL policies such
as the Travelers policies, there are controlling nuances in choice of law
principles, none of which were raised or considered in the Rhode Island
action.
Generally, “the relevant contacts to be considered in a dispute
over the validity of a contract or the rights thereunder are set forth in
section 188, subdivision (2) of the Restatement Second of Conflict of
Laws: ‘(a) the place of contracting, [¶](b) the place of negotiation of the
contract, [¶](c) the place of performance, [¶](d) the location of the
subject matter of the contract, and [¶](e) the domicile, residence,
nationality, place of incorporation and place of business of the parties.
[¶] These contacts are to be evaluated according to their relative
importance with respect to the particular issue.’” (Stonewall Surplus
Lines Ins. Co. v. Johnson Controls, Inc. (1993) 14 Cal.App.4th 637, 646
(Stonewall); see also Dixon Mobile Homes, Inc. v. Walters (1975) 48
Cal.App.3d 964, 972; Robert McMullan & Son, Inc. v. United States Fid.
& Guar. Co. (1980) 103 Cal.App.3d 198, 204–205.)
Insurance policies present a specific application of the
governmental interest analysis. “Where . . . a casualty insurance
contract is in dispute, particular importance is placed on the location of
the subject matter of the contract, i.e. the location of the insured risk.
[Citations.] ‘The Restatement Second of Conflict of Laws section 193
states: “The validity of a contract of fire, surety or casualty insurance
and the rights created thereby are determined by the local law of the
state which the parties understood was to be the principal location of
the insured risk during the term of the policy, unless with respect to the
25
particular issue, some other state has a more significant relationship.
. . .” As the court explained in Cunningham v. Equitable Life Assur.
Soc. of U.S. (2d Cir. 1981) 652 F.2d 306: “In contracts of casualty
insurance, . . . the principal location of the insured risk is given
particular emphasis in determining the choice of the applicable law.
[Citation.] This is so because location has an intimate bearing upon the
nature of the risk and the parties would naturally expect the local law
of the state where the risk is to be principally located to apply.
[Citations.] Moreover, the state where the insured risk will be
principally located during the term of the policy has an interest in the
determination of issues arising under the insurance contract.”
[Citation.]’ [Citation.]” (Stonewall, supra, 14 Cal.App.4th at p. 646.)
In the case of a CGL policy that insures multiple risks in multiple
states, such as the Travelers policies, the choice of law determination is
made more complicated by a unique aspect: the same policy, and the
same policy language, insures against multiple risks occurring at
different times and in different states. As stated in Stonewall, “‘[w]here
a multiple risk policy insures against risks located in several states, it
is likely the courts [of the various states] will view the transaction [for
which coverage is sought] as if it involved separate policies, each
insuring an individual risk, and apply the law of the state of principal
location of the particular risk involved.’” (Stonewall, supra, 14
Cal.App.4th at pp. 646–647; see also Rest.2d, Conflict of Laws, § 193,
com. f.; 2 Witkin, Summary of Cal. Law (11th ed. 2017), Insurance, § 43,
pp. 93–95.) As a result, when construed by courts in different states
applying each state’s law, “the same policy language may receive
26
different construction and application in different jurisdictions.”
(Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 514.)
The decision in Stonewall is an instructive discussion of the choice
of law in such a case. In Stonewall, a California jury awarded punitive
damages against the insured, a Wisconsin corporation with
manufacturing operations in California, based on an incident in which a
California resident was injured when a battery manufactured and sold
in California exploded in California. (Stonewall, supra, 14 Cal.App.4th
at p. 640.) The insurers filed a declaratory relief action seeking a
declaration that they were not required to pay exemplary damages
under California law. The insured argued that Wisconsin law, which
permitted indemnification for punitive damages, applied. (Id. at p.
641.) The court in Stonewall held that California law governed. The
Court reasoned that “the record here supports the conclusion [that the
insured] is a large corporation with worldwide operations and, more
importantly, both [the insured] and its insurers carefully considered the
complexity of the corporation’s activities at the time the policies were
issued. Under these circumstances we believe [the insured] and its
insurers would reasonably expect not only that the corporation’s
liability to a third party might be governed by the law of a state with
significant interests at stake, but that [the insured’s] right to indemnity
for such a claim might also be governed by that state’s law. As
suggested by Witkin and the Restatement, given the nature of the risks
insured, this is a case where in reality [the insured] did not obtain a
single policy which it could expect would be governed by the law of one
state; rather, [the insured] obtained separate policies which insure
27
separate risks located in any number of states where the corporation
does business.” (Id. at p. 648.)
Under this approach, the court concluded that California’s
governmental interests as the location of the insured risk and in
protecting its residents against tortfeasors outweighed Wisconsin’s
interest: “[T]he liability imposed grew out of severe injury suffered by a
California resident while he was in California and caused by
manufacturing and marketing activities which occurred exclusively in
this state. It is difficult to imagine circumstances where California
would have a greater interest in altering the future behavior of a
defendant by compelling payment [of punitive damages] directly from
the defendant rather than its insurers. [¶] In sum then California’s
rule applies here because it is the principal location of the risk involved,
because application of California’s rule is entirely consistent with
Wisconsin’s interest in protecting the reasonable expectations of its
insured and because California has a significant interest in applying its
rule.” (Stonewall, supra, 14 Cal.App.4th at p. 649, fn. omitted.)
In the instant case, it is clear from the record that Textron is a
large corporation with operations in many states, and has obtained
many policies of insurance issued by many different insurers to cover its
multi-state operations. It may be inferred that, as with the parties in
Stonewall, the insured (Textron) and insurer (Travelers) “reasonably
expect[ed] not only that the [insured’s] liability to a third party might
be governed by the law of a state with significant interests at stake, but
that [the insured’s] right to indemnity for such a claim might also be
28
governed by that state’s law.” (Stonewall, supra, 14 Cal.App.4th at p.
648.)
In the Esters action, the location of the insured risk is California,
and only California. Under Stonewall, California’s interest in applying
its continuous trigger rule to interpret the definition of occurrence
under the Travelers policies is compelling. But, as to any California
personal injuries involved in the Rhode Island action, no analogous
California interest was presented or considered. As we have stated,
Travelers identified (and the court apparently considered) only Rhode
Island’s interests as the site of Textron’s principal place of business and
risk management department, and the site from which premiums were
paid and the policies and notices were delivered. While these interests
supported applying Rhode Island’s law to occurrences of personal injury
in the factual context of the Rhode Island action (258 policies covering
occurrences in 19 different states), they pale in significance to
California’s interest in the factual context of the Esters action. As is
apparent, California has an overriding interest in applying its
continuous trigger rule to the Esters action (involving a continuing
injury suffered by a California resident, caused by Textron’s activities
in California and only California) to ensure that there are adequate
insurance proceeds available as compensation. Indeed, in its motion for
summary judgment in the instant case, Travelers did not even contend
that Rhode Island’s interests would be more impaired than California’s
if Rhode Island’s manifestation trigger rule were not applied.
In short, based on all these considerations, we conclude that in
deciding to apply Rhode Island law in the Rhode Island action, the
29
Rhode Island court did not decide the identical choice of law issue
regarding whether California or Rhode Islands’ trigger rule should
apply to the Ester action. Although the issues in Rhode Island and here
involve personal injury claims and the interpretation of the same
insurance policies, they do so in markedly different factual postures,
requiring markedly different choice of law analysis. (See Don King
Productions, Inc. v. Douglas (S.D.N.Y. 1990) 742 F.Supp. 741, 751
[choice of law issues appear generally unsuited for collateral estoppel
effect, because “determinations of governing law are fact-based, resting,
inter alia, upon discrete findings with respect to such matters as the
contractual parties’ citizenship, residence, place of contract negotiation,
place of contract execution, contract subject matter, and contemplated
or actual place of performance under an agreement”].) Thus, Textron is
not collaterally estopped to seek a ruling that California’s continuous
trigger rule applies.
3. Judicial Estoppel
The trial court also ruled that Textron was judicially estopped to
argue that any law other than Rhode Island law applied. Judicial
estoppel prevents a party from asserting a position in a legal proceeding
that is contrary to a position previously taken in the same or an earlier
proceeding. (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169.) Five
factors determine whether judicial estoppel apply: (1) the same party
has taken two positions; (2) the positions were taken in judicial or
quasi-judicial proceedings; (3) the party was successful in asserting the
first position (it was adopted by the tribunal); (4) the two positions are
30
totally inconsistent; and (5) the first position was not taken as the
result of fraud, ignorance, or mistake. (Ibid.; The Swahn Group, Inc. v.
Segal (2010) 183 Cal.App.4th 831, 842.)
As should be obvious based on our holding that collateral estoppel
does not apply, judicial estoppel also does not apply. The fundamental
basis of the doctrine is that the party to be estopped was successful in
asserting a position in a prior case that is totally inconsistent with its
position in the current case. Given that the issue decided and presented
in the Rhode Island action was not identical to the issue presented here,
Textron’s argument in the present case that California’s continuous
trigger rule applies is not inconsistent with the its argument that Rhode
Island law applied in the Rhode Island action.
4. Triable Issue of Fact
Absent collateral or judicial estoppel, Travelers failed to show that
Rhode Island law applies in the instant case. To persuade a California
court to apply the law of another state, “the proponent of the other
forum’s laws must invoke the law of the foreign jurisdiction, show that
it materially differs from California law, and demonstrate how applying
that law will further the interest of the foreign jurisdiction. [Citation.]
Otherwise, a California court will apply its own rules of decision.”
(Garamendi v. Mission Ins. Co. (2005) 131 Cal.App.4th 30, 41.)
As we have stated, Travelers made no attempt to prove under the
governmental interest test that Rhode Island’s interest would be more
impaired than California’s if California’s continuous trigger (rather
than Rhode Island’s manifestation trigger) were applied. Indeed, it is
31
obvious that the more impaired interests would be California’s. Thus,
California law and the continuous trigger rule defining an occurrence
governed determination of Travelers’ summary judgment motions.
Textron produced expert medical evidence that mesothelioma is
initiated by the first inhalation of asbestos fibers, and that the disease
thereafter continues to progress over many years. Dr. Horn believed
that Esters’ asbestos exposure occurred while doing her mother’s
laundry, and that her exposure dated from 1964, when she was nine
years old. The Travelers policies were in effect from January 1, 1966 to
January 1, 1987, during the period of the progression of the disease as
described by Dr. Horn. Thus, a triable issue of fact exists under
California’s continuous trigger whether the Esters action constitutes an
occurrence within the policy periods of the Textron policies. We
therefore reverse the grant of summary judgment for Travelers and
remand for further proceedings.
//
//
//
//
//
//
//
//
//
32
DISPOSITION
The judgment of the superior court in favor of Travelers on
Textron’s the first amended complaint, on Textron’s cross complaint for
breach of contract and bad faith, and on Travelers cross-complaint for
reimbursement, is reversed. On remand, the superior court shall enter
an order denying Travelers’ motions for summary judgment/
adjudication, and conduct further proceedings as appropriate. Textron
shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
33