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Coltec Indus. Inc. v. Zurich Ins. Co.

Citation: 33 ELR 20084
No. No. 99 C 1087, (N.D. Ill., 09/30/2002)

The court holds that a manufacturer that lost its original insurance policies from 1963 to 1965 provided sufficient secondary evidence to prove that the terms of the policies required the insurer to defend and indemnify the manufacturer against bodily injury and property damage claims. The manufacturer was responsible for the remediation of 12 waste sites, and, in a separate action, was sued by 2,000 claimants alleging injury from the manufacturer's asbestos products. For claims arising from 1963 to 1965, the manufacturer sought defense and indemnification from its insurer. The insurer declined coverage, and the manufacturer sought separate declarations of rights, brought breach of contract claims, and sought summary judgment as to the existence and the terms of its policies with the insurer. The manufacturer and the insurer conceded that the original policies could not be found, and the manufacturer sufficiently showed diligent efforts to find the original policies. The court first holds that under the best evidence rule, the manufacturer could use secondary evidence to attempt to prove the existence and terms of the original policies. Contrary to the insurer's assertion, the best evidence rule does not provide for a jury trial on the manufacturer's efforts to prove the contents of the policies, and the manufacturer need only prove the contents of the policies by a preponderance of the evidence. The court next holds that the manufacturer proved by the preponderance of the evidence the existence of the policies and the terms based on a standard comprehensive general liability (CGL) policy. Secondary evidence offered by the manufacturer supports that, at a minimum, the manufacturer's policies for 1963 to 1965 were written on the insurer's standard CGL policies for 1959 to 1965. Further, certificates of insurance that the insurer issued to third parties to prove coverage of the manufacturer indicated that the manufacturer's policies were written on standard CGL policy forms and included no pollution endorsement and that four of the policies included a standard occurrence endorsement. A memorandum from an employee of the manufacturer with insurance duties also supports the fact that the insurer provided the manufacturer with standard CGL coverage. Moreover, a premium ledger proved that the manufacturer paid for the policies in full, and documents of loss history detailed that under the policies the insurer defended the manufacturer against bodily injury and property damage claims. In addition, the manufacturer's insurance manager testified that the policies at issue were written on the insurer's standard CGL forms for 1959 to 1965 and that under the policies the insurer defended the insured against bodily injury and property damage. Therefore, the court defines the terms of the policies according to the insurer's standard CGL policy terms.