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Guaranty Nat'l Ins. Co. v. Azrock Indus. Inc.

ELR Citation: 30 ELR 20492
Nos. No. 98-21031, 211 F.3d 239/(5th Cir., 04/27/2000) determination of exposure that triggers duty to defend

The court, interpreting Texas law, holds that exposure to asbestos is the event that triggers an insurer's duty to defend in asbestos personal injury cases under a uniform comprehensive general liability policy and, therefore, reverses a district court decision holding that an insurer need not defend an asbestos tile manufacturer. The court first holds that the terms occurrence and bodily injury are susceptible of more than one interpretation in the progressive disease context, and are, therefore, ambiguous as a matter of law. The court then holds that the term occurrence during the policy period requires that the actual injury, not merely the negligent act or omission that causes the injury, must happen during the policy period. The court also defines injury as the subclinical tissue damage that occurs on the inhalation of asbestos fibers. The court next holds that an insurer's duty to defend is triggered at the time the claimant is initially exposed to the injury-causing agent, and not when the condition manifests or becomes identifiable. This holding comports with the requirements under Texas law to construe ambiguities in favor of coverage. Therefore, on remand the district court must examine each underlying complaint for allegations of exposure during the policy period. The court further holds, however, that with respect to the sole property damage claim, the district court correctly held that the insurer did not have a duty to defend because the alleged property damage did not manifest during the relevant policy period.

The full text of this opinion is available from ELR (14 pp., ELR Order No. L-206).

[A prior decision in this litigation is published at 30 ELR 20389.]

Counsel for Plaintiff
Christopher W. Martin
Bracewell & Patterson
South Tower Pennzoil Pl.
711 Louisiana St., Ste. 2900, Houston TX 77002
(713) 223-2900

Counsel for Defendant
Reagan M. Brown
Fulbright & Jaworski
1301 McKinney St., Ste. 5100, Houston TX 77010
(713) 651-5151