Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co.

[This decision has been published in Ohio Official Reports at 

95 Ohio St.3d 512

.]




     GOODYEAR TIRE & RUBBER COMPANY ET AL., APPELLANTS, v. AETNA
               CASUALTY & SURETY COMPANY ET AL., APPELLEES.
         [Cite as Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co.,
                                    

2002-Ohio-2842

.]
Insurance—Continuous occurrence of environmental pollution triggers claims
        under multiple insurance policies—Insured entitled to source coverage
        from a single policy of its choice that covers all sums incurred as damages
        during the policy period—Pollution exclusion clause in insurance contract
        that bars coverage for expected or intended “emission, discharge, seepage,
        release or escape” of contaminating materials is triggered, when.
(Nos. 2000-1984 and 2001-0493—Submitted November 28, 2001—Decided June
                                         26, 2002.)
            APPEAL from the Court of Appeals for Summit County, No. 19121.
                                  __________________
                                SYLLABUS OF THE COURT
1. When a continuous occurrence of environmental pollution triggers claims under
        multiple primary insurance policies, the insured is entitled to secure
        coverage from a single policy of its choice that covers “all sums” incurred
        as damages “during the policy period,” subject to that policy’s limit of
        coverage.
2. A pollution exclusion clause in an insurance contract that bars coverage for
        expected or intended “emission, discharge, seepage, release or escape” of
        contaminating materials is triggered when the policyholder expects or
        intends that the contaminants will migrate from the location in which they
        were first deposited.
                                  __________________
                             SUPREME COURT OF OHIO




       FRANCIS E. SWEENEY, SR., J.
       {¶1} In 1993, appellants, Goodyear Tire & Rubber Company and others
(collectively “Goodyear”),1 filed this action against appellees Aetna Casualty &
Surety Company and several other insurance companies (collectively the
“insurers”)2 seeking declaratory judgments concerning insurance claims for
pollution cleanup costs at twenty-two sites. Numerous claims, defendants, and
specific insurance policies were disposed of through pretrial motions.          The
remaining parties agreed to limit the evidence in this case to claims relating to two
waste disposal sites. Those sites are the Motor Wheel Site in Lansing, Michigan,
and the Army Creek Landfill in New Castle, Delaware.
       {¶2} After Goodyear had presented its case at trial, the insurers moved for
directed verdicts on various grounds. The trial court granted the directed verdicts
to all defendants without providing a specific basis for its decision. The court of
appeals reversed the trial court on a number of the motions for directed verdicts.
No appeal has been taken from these reversals. The appellate court affirmed the
trial court on the remaining motions for directed verdict. Goodyear asserts that this
was error. The consolidated cases are now before this court pursuant to the
allowance of discretionary appeals.
                         I. Standard for Directed Verdicts
       {¶3} At the outset, we are mindful of the standard of review for a directed
verdict. According to Civ.R. 50(A)(4), a motion for directed verdict is granted if,
after construing the evidence most strongly in favor of the party against whom the
motion is directed, “reasonable minds could come to but one conclusion upon the
evidence submitted and that conclusion is adverse to such party.” The “reasonable
minds” test mandated by Civ.R. 50(A)(4) requires the court to discern only whether
there exists any evidence of substantive probative value that favors the position of
the nonmoving party. Civ.R. 50(A)(4); Ruta v. Breckenridge-Remy Co. (1982), 

69 Ohio St.2d 66, 69

, 

23 O.O.3d 115

, 

430 N.E.2d 935

.




                                         2
                                January Term, 2002




        {¶4} “A motion for directed verdict * * * does not present factual issues,
but a question of law, even though in deciding such a motion, it is necessary to
review and consider the evidence.” O’Day v. Webb (1972), 

29 Ohio St.2d 215

, 

58 O.O.2d 424

, 

280 N.E.2d 896

, paragraph three of the syllabus. See, also, Wagner v.
Roche Laboratories (1996), 

77 Ohio St.3d 116, 119

, 

671 N.E.2d 252

. Since we are
presented with a question of law, we apply a de novo standard of review. Cleveland
Elec. Illum. Co. v. Pub. Util. Comm. (1996), 

76 Ohio St.3d 521, 523

, 

668 N.E.2d 889, 891

. It is with these principles in mind that we consider Goodyear’s assertions
of error.
                                   II. Allocation
        {¶5} In determining whether the directed verdicts were properly granted,
we must first decide whether the lower courts erred in the method used to allocate
insurance coverage among the multiple insurers.          Allocation deals with the
apportionment of a covered loss across multiple triggered insurance policies. Paar,
Recovery is in the Details: Hot Issues in the Administration and Application of
General Liability Insurance Policies (2000), 86 PLI/NY 199, 216. The issue of
allocation arises in situations involving long-term injury or damage, such as
environmental cleanup claims where it is difficult to determine which insurer must
bear the loss.
        {¶6} The parties are in agreement as to which primary insurance policies
have been called into play, and there is no dispute that there was continuous
pollution across multiple policy periods that gave rise to occurrences and claims to
which these policies apply. However, they disagree as to the appropriate method
for distributing losses across the triggered policies.     There are two accepted
methods for allocating coverage. One approach, favored by Goodyear, permits the
policyholder to seek coverage from any policy in effect during the time period of
injury or damage. This “all sums” approach allows Goodyear to seek full coverage
for its claims from any single policy, up to that policy’s coverage limits, out of the




                                          3
                             SUPREME COURT OF OHIO




group of policies that has been triggered. In contrast, the insurers urge us to apply
the pro rata allocation scheme implicitly adopted by the court of appeals. Under
the pro rata approach, each insurer pays only a portion of a claim based on the
duration of the occurrence during its policy period in relation to the entire duration
of the occurrence. It divides “a loss ‘horizontally’ among all triggered policy
periods, with each insurance company paying only a share of the policyholder’s
total damages.” Id. at 217. For the reasons that follow, we agree with Goodyear’s
position and adopt the “all sums” method of allocation.
       {¶7} The starting point for determining the scope of coverage is the
language of the insurance policies. The policies at issue require the insurer to “pay
on behalf of the insured all sums which the insured shall become legally obligated
to pay as damages because of * * * property damage to which this policy applies
caused by an occurrence.” (Emphasis added.)          The policies define “property
damage” as “injury to or destruction of tangible property which occurs during the
policy period * * *.”3 (Emphasis added.) The italicized portions of this language
provide the point of contention.
       {¶8} It is well settled that “insurance policies should be enforced in
accordance with their terms as are other written contracts. Where the provisions of
the policy are clear and unambiguous, courts cannot enlarge the contract by
implication so as to embrace an object distinct from that originally contemplated
by the parties.” Rhoades v. Equitable Life Assur. Soc. of the U.S. (1978), 

54 Ohio St.2d 45, 47

, 

8 O.O.3d 39

, 

374 N.E.2d 643

, citing Motorists Mut. Ins. Co. v.
Tomanski (1971), 

27 Ohio St.2d 222, 226

, 

56 O.O.2d 133

, 

271 N.E.2d 924

.
       {¶9} There is no language in the triggered policies that would serve to
reduce an insurer’s liability if an injury occurs only in part during a given policy
period. The policies covered Goodyear for “all sums” incurred as damages for an
injury to property occurring during the policy period. The plain language of this
provision is inclusive of all damages resulting from a qualifying occurrence.




                                          4
                                 January Term, 2002




Therefore, we find that the “all sums” allocation approach is the correct method to
apply here.
       {¶10} Interpreting the policy language in this manner is a practice that has
been frequently implemented in other jurisdictions. Am. Natl. Fire Ins. Co. v. B &
L Trucking & Constr. Co., Inc. (1998), 

134 Wash.2d 413, 428

, 

951 P.2d 250

 (noting
that the national majority rule forbids insurers from limiting their liability to a pro
rata share unless the policy expressly allows it). In particular, support for this
approach can be found in the frequently cited case of Keene Corp. v. Ins. Co. of N.
Am. (C.A.D.C.1981), 

667 F.2d 1034

. In Keene, an action for declaratory relief was
brought to discern the rights and obligations of parties under comprehensive general
liability policies issued to an insured that was liable for bodily injuries arising from
asbestos-related diseases. The asbestos was deemed to cause bodily injury in more
than one policy period, and it was determined that multiple policies had been
triggered. Id. at 1040. The court went on to rule that each insurer whose insurance
policy had been triggered would be liable in full for the indemnification and defense
costs of the insured relating to the asbestos claims. Id. at 1048. In reaching this
conclusion, the Keene court noted that there was nothing in the triggered policies
that “provides for a reduction of the insurer’s liability if an injury occurs only in
part during a policy period.” Id. This being so, the court reasoned that the insured
would have reasonably expected “complete security from each policy it purchased.”
Id.
       {¶11} Like the insured in Keene, we are persuaded that Goodyear expected
complete security from each policy that it purchased.4 This approach promotes
economy for the insured while still permitting insurers to seek contribution from
other responsible parties when possible. Therefore, we find that when a continuous
occurrence of environmental pollution triggers claims under multiple primary
insurance policies, the insured is entitled to secure coverage from a single policy of
its choice that covers “all sums” incurred as damages “during the policy period,”




                                           5
                             SUPREME COURT OF OHIO




subject to that policy’s limit of coverage. In such an instance, the insurers bear the
burden of obtaining contribution from other applicable primary insurance policies
as they deem necessary.
       {¶12} For each site, Goodyear should be permitted to choose, from the pool
of triggered primary policies, a single primary policy against which it desires to
make a claim. In the event that this policy does not cover Goodyear’s entire claim,
then Goodyear may pursue coverage under other primary or excess insurance
policies. The answer to the question of what insurance may be tapped next is
dependent upon the terms of the particular policy that is put into effect by
Goodyear. At this juncture, we are unable to determine which policy Goodyear
will invoke, and thus we are also unable to determine whether the primary policy
limits will be exhausted. Since Goodyear may find it necessary to seek excess
insurance coverage, we find that the lower court erred in granting directed verdicts
in favor of the excess insurers. The excess insurers should be included in the
proceedings so that their rights and obligations can be considered in the event that
their policies become a factor. We reverse the judgment of the court of appeals on
this question.
                                 III. Timely Notice
       {¶13} The second issue concerns whether Goodyear gave timely notice to
its insurers so as to trigger coverage for occurrences of pollution at the Motor Wheel
Site. The insurance policies at issue required Goodyear to notify its insurers of an
occurrence “as soon as practicable.”5 Additionally, they required Goodyear to give
the insurers notice of a claim “immediately.” The court of appeals affirmed the
grant of directed verdicts on this issue, finding that the notice provided by Goodyear
to its primary insurers was untimely and unreasonable as a matter of law. However,
it did not reach the issue with respect to the excess insurers, since it had already
granted them directed verdicts on the allocation issue.




                                          6
                                January Term, 2002




       {¶14} Notice provisions in insurance contracts are conditions precedent to
coverage, so an insured’s failure to give its insurer notice in a timely fashion bars
coverage. Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. Co. (C.P.1995),

74 Ohio Misc.2d 183, 203

, 

660 N.E.2d 770

. In Ormet Primary Aluminum Corp. v.
Employers Ins. of Wausau (2000), 

88 Ohio St.3d 292

, 

725 N.E.2d 646

, syllabus,
we stated, “A provision in an insurance policy requiring notice to the insurer ‘as
soon as practicable’ requires notice within a reasonable time in light of all the
surrounding facts and circumstances.” A similar requirement is applied to a
provision that compels notice “immediately.”         Id. at 303, 

725 N.E.2d 646

.
Generally, the question of timeliness calls into play matters to be discerned by the
finder of fact; however, it is also true that “an unexcused significant delay may be
unreasonable as a matter of law.” Id. at 300, 

725 N.E.2d 646

.
       {¶15} The court of appeals relied upon Ormet to find that the notice
provided by Goodyear in the instant case was unreasonable as a matter of law. We
disagree because Ormet is distinguishable on its facts. In that case, by 1966, the
insured had knowledge of actual pollution caused by its actions. In 1986, the EPA
formally identified the insured as a potentially responsible party. By 1987, the
insured had signed a settlement agreement with federal and state government
agencies that outlined its financial responsibilities for cleaning up contamination.
Despite these events, the insured did not notify its insurers about potential claims
until March 1992. Based on these facts, this court found that the timing of notice
resulted in actual prejudice to the insurers and thus barred coverage.
       {¶16} Here, however, the facts do not present such a clear manifestation of
unreasonableness.    In 1970, Goodyear received information from Michigan
authorities indicating the potential for groundwater pollution at the Motor Wheel
site. At two other times during the ensuing decade, it was asked to cease and desist
some or all of its dumping activities at the site, and by 1981 Goodyear had notified
the United States Environmental Protection Agency that contamination at the site




                                          7
                            SUPREME COURT OF OHIO




was likely. However, when correspondence from the local health department to the
Michigan Department of Natural Resources dated December 1982 indicated that a
single water well in the area should be monitored due to the presence of a chemical,
nothing therein indicated that Goodyear was responsible. Goodyear nonetheless
conducted an investigation into the pollution problem during a ten-year span
beginning in 1982. It gave notice of the possibility of an occurrence to many of its
insurers sometime between 1983 and August or October 1984, but testimony
indicated that no cleanup was undertaken by Goodyear until at least 1992.
       {¶17} Based on this evidence, we are not inclined to bypass the factfinder
on the question of whether Goodyear’s notice was unreasonably late. In Ormet,
notice was provided to affected insurers some six years after the insured was
identified by the EPA as a responsible party for pollution and some five years after
the insured had entered into a settlement agreement dictating the terms of cleanup.
In the instant case, no similar lapse in time occurred between an event so blatantly
indicating an occurrence and the time of notice by Goodyear. Nothing in any of
the relevant documents informed Goodyear that it would be responsible for cleanup
costs, and Goodyear did not admit liability for such costs. Information and events
were unfolding over time with such complexity that only the factfinder may resolve
the issue of whether Goodyear’s notice was unreasonable.
       {¶18} After construing the evidence most strongly in favor of Goodyear,
we find that reasonable minds could come to more than one conclusion as to
whether Goodyear’s primary and excess insurers received unreasonable notice.
Directed verdicts in favor of the insurers on this question were therefore improper,
and the judgment of the court of appeals is reversed.
                        IV. Pollution Exclusion Provision
       {¶19} The final issue concerns the meaning of pollution exclusion clauses
in certain insurance policies issued to Goodyear covering occurrences at the Army
Creek Landfill. Each of these policies contained a provision that excluded coverage




                                         8
                                January Term, 2002




for property damage “arising out of any emission, discharge, seepage, release or
escape of any liquid, solid, gaseous or thermal waste or pollutant * * * if such
emission, discharge, seepage, release or escape is either expected or intended from
the standpoint of any insured * * *.”
       {¶20} The insurers argue that this provision should be construed to mean
that if the policyholder intentionally placed contaminants into a landfill, that act is
enough to forfeit coverage. Goodyear counters that the exclusion applies only to
the migration of contaminants from the place of deposit and not to the initial
placement. It argues that since it did not expect or intend for harmful chemicals to
migrate from the landfill, the pollution exclusion clause cannot bar coverage. The
court of appeals adopted the insurers’ reasoning.
       {¶21} We construe insurance provisions in accordance with the rule that
“an exclusion in an insurance policy will be interpreted as applying only to that
which is clearly intended to be excluded.” (Emphasis in original.) Hybud Equip.
Corp. v. Sphere Drake Ins. Co., Ltd. (1992), 

64 Ohio St.3d 657, 665

, 

597 N.E.2d 1096

. While looking at the plain meaning of similar language, the court in Nestle
Foods Corp. v. Aetna Cas. & Sur. Co. (D.N.J.1993), 

842 F.Supp. 125

, noted that
the terms “discharge, dispersal, release or escape” all were undefined terms in the
subject policy. However, it found that “[a]ll of these terms intrinsically evoke a
transition from a state of confinement to movement.” 

Id. at 131

. A number of the
highest courts from other states have construed these terms in a similar fashion.
Queen City Farms, Inc. v. Cent. Natl. Ins. Co. of Omaha (1994), 

126 Wash.2d 50

,

882 P.2d 703

; Compass Ins. Co. v. Littleton (Colo.1999), 

984 P.2d 606

; Alabama
Plating Co. v. U.S. Fid. & Guar. Co. (Ala.1996), 

690 So.2d 331

.
       {¶22} Just as in those cases, here the insurers included language in the
pollution exclusion provisions that they failed to define but which has a plain
meaning. The terms “emission, discharge, seepage, release or escape” require some
sort of movement by a contaminant from one location to another. For instance, one




                                          9
                              SUPREME COURT OF OHIO




definition of the word “escape” is “flight from confinement.” Webster’s Ninth New
Collegiate Dictionary (1984) 424. “Disperse” means “to spread or distribute from
a fixed or constant source.” 

Id. at 365

. These terms incorporate the concept of a
leakage or discharge, such as through cracks or other outlets. They indicate that
the relevant event invoking the pollution exclusion clause is the intentional
movement of contaminants from the Army Creek Landfill rather than the act of
initially placing pollutants there.     If the insurers had meant their pollution
exclusions to apply to acts such as depositing or placing chemicals in the ground,
they could have used language that more perfectly described those actions.
        {¶23} A pollution exclusion clause in an insurance contract that bars
coverage for expected or intended “emission, discharge, seepage, release or escape”
of contaminating materials is triggered when the policyholder expects or intends
that the contaminants will migrate from the location in which they were first
deposited. Based on the record before us, we find evidence indicating that any
migration of pollutants from the Army Creek Landfill was unexpected and
unintended. When Goodyear was depositing the wastes, it did not believe that they
were pollutants. Also, at the time, the widespread belief was that chemicals
deposited in a landfill would be contained and would remain where they were
initially placed. Representative cases recognizing this school of thought include
Compass Ins. Co., supra, and Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co.
(Minn.App.1992), 

480 N.W.2d 368

. Testimony shows that Goodyear believed
disposal of the wastes at a landfill was safe. Thus, the directed verdicts on this issue
were erroneous, since factual questions exist as to whether Goodyear expected or
intended pollutants to migrate to surrounding groundwater.
        {¶24} Accordingly, for the above reasons, the judgment of the court of
appeals is reversed, and the cause is remanded to the trial court for further
proceedings consistent with this opinion.
                                                                   Judgment reversed




                                          10
                                  January Term, 2002




                                                                 and cause remanded.
          RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.
          MOYER, C.J., DOUGLAS and F.N. YOUNG, JJ., dissent.
          FREDERICK N. YOUNG, J., of the Second Appellate District, sitting for
COOK, J.
                                 __________________
          FREDERICK N. YOUNG, J., dissenting.
          {¶25} I respectfully dissent from the decision of the majority regarding the
issue of allocation, although I agree with the majority in all other regards.
          {¶26} The majority adopts an “all sums” approach to the allocation of
insurance coverage among multiple insurers. This method allows an insured to
choose one of its multiple carriers to reimburse it for all costs incurred—even
though covered by other insurance carriers—when the injury is continuous and
cannot be attributed to one period covered by only one insurance carrier. As the
majority points out, this leaves “the insurers [to] bear the burden of obtaining
contribution from other applicable primary insurance policies as they deem
necessary.” I find that this approach ignores the plain language of the insurance
contract, flies in the face of the majority rule, and contravenes plain common sense.
          {¶27} As the majority correctly notes, the starting point for determining the
scope of coverage is the language of the insurance policies, and the policies at issue
require the insurer to “pay on behalf of the insured all sums which the insured shall
become legally obligated to pay as damages because of * * * property damage to
which this policy applies caused by an occurrence.” (Emphasis added.)
          {¶28} “Property damage” is defined in the insurance policy as “injury to or
destruction of tangible property which occurs during the policy period * * *.”
(Emphasis added.) The majority focuses on only the “all sums” language and
virtually ignores the requirement that the injury must occur during the policy
period.     In the case before us, as in most cases involving continuous injury




                                           11
                             SUPREME COURT OF OHIO




occurring under many different policy periods, it is impossible for the insured to
prove the extent of the injury that occurred during the policy period of the insurance
carrier being targeted. The majority accepts the fact that the injury occurred here
only in part during the given policy period. It falls to logical interpretation of the
contract that the phrase “all sums” is limited by the insurance contract to all sums
arising during the policy period. The insured and the carrier here bargained for
only a limited period of time of coverage for an injury that arose before the coverage
and continued to exist after it, and the premium was therefore based upon that
bargained-for coverage. Each insurance carrier’s liability is therefore limited to
only that part of the total injury that occurred within a particular carrier’s coverage
dates. Since that portion of the injury cannot be proven by direct evidence in dollar
terms, the only way to allocate coverage is to attribute the losses to the various
insurance carriers that provided coverage throughout the policy periods. That
approach, which was adopted by the court of appeals, gives effect to all the
language of the insurance contract and not just to the two isolated words “all sums.”
       {¶29} If this court were to affirm the court of appeals on the allocation issue,
it would be in line with the majority of jurisdictions that, in the context of
continuing environmental damage from pollution, have adopted rules allocating
damages among multiple periods of coverage. As noted by William P. Shelley,
Fundamentals of Insurance Coverage Allocation (Jan. 5, 2000), Mealey’s Litigation
Reports (Insurance) 25, 30, “[t]he vast majority of courts have rejected the joint and
several (or ‘pick and choose’) approach to allocation.”
       {¶30} Finally, I note that under the “all sums” approach, the insurance
carrier chosen by the insured would bear the burden of obtaining contribution from
other applicable primary insurance carriers as it deems necessary. This is a
fundamentally flawed conclusion because the insured, not the targeted insurance
carrier, is the one that chose the other insurance carriers. Some carriers may not be
liable to the targeted carrier for such contribution or may in fact lack the financial




                                          12
                                January Term, 2002




resources to contribute. Why should the targeted carrier bear that financial burden
when it did not choose the other carriers? The insured, since it did choose the other
carriers, should logically and in all fairness bear that burden of obtaining the proper
share of coverage from each of the other carriers. Indeed, for some periods of time
during the continuous pollution, the insured may have acted as self-insured and
should therefore bear its portion of the allocation of the total damages. It should
not be able to seek complete reimbursement from a carrier that did not provide
coverage through any of those other periods of time.
         {¶31} The court of appeals here properly allocated coverage among all the
insurance carriers who covered separate portions of the time periods of the
continuous pollution. I would affirm the judgment of the court of appeals on this
issue.
         MOYER, C.J., and DOUGLAS, J., concur in the foregoing dissenting opinion.
                               __________________
         Brouse McDowell, Paul A. Rose, Frank E. Quirk and Keven D. Eiber, for
appellants Goodyear Tire and Rubber Company, Motor Wheel Corporation, Kelly-
Springfield Tire Company, Hose Couplings Manufacturing, Inc., Divested
Aerospace Corporation, as successor in interest to Goodyear Aerospace
Corporation, Goodyear Farms, Inc., and Brad Ragan, Inc.
         Choate, Hall & Stewart, Kathleen A. Burdette and A. Hugh Scott; Baker &
Hostetler, L.L.P., Daniel P. Mascaro, Susan E. Thomas and Jordan Berns, for
appellees Aetna Casualty & Surety Company and Travelers Indemnity Company.
         Hermann, Cahn & Schneider, Anthony J. Hartman and Hugh D. Berkson;
Joseph B. Royster; Bollinger, Ruberry & Garvey and Clay Phillips, for appellee
Stonewall Insurance Company.
         Lord, Bissell & Brook, Daniel I. Schlessinger, Hugh Griffin and Michael P.
Comiskey; and Dennis Bartek, for appellees Certain Underwriters at Lloyds,
London, and the London Market Company.




                                          13
                             SUPREME COURT OF OHIO




       Baker, Dublikar, Beck, Wiley & Mathews and James F. Mathews, for
appellee Atlanta International Insurance Company.
       Buckley King & Bluso and James W. Barnhouse; Cohn & Baughman and
Michael J. Baughman, for appellees Century Indemnity Company (individually and
as successor to policies issued by Insurance Company of North America),
California Union Insurance Company, and U.S. Fire Insurance Company.
       Clausen, Miller, Gorman, Caffrey & Witous, P.C., Margaret J. Orbon,
Edward M. Kay and Amy R. Paulus; Janik & Dorman, Steven J. Danik and Andrew
J. Dorman, for appellees AIU Insurance Company, Birmingham Fire Insurance
Company, Granite State Insurance Company, Insurance Company of the State of
Pennsylvania, Lexington Insurance Company, and National Union Fire Insurance
Company of Pittsburgh, Pa.
       Skadden, Arps, Slate, Meagher & Flom and Michael J. Balch; Roderick,
Linton, L.L.P., Howard C. Walker, Jr. and Lawrence R. Bach, for appellees General
Reinsurance Corporation, Old Republic Insurance Company, and Northstar
Reinsurance Corporation, n.k.a. Signet Star Reinsurance Company.
       Luce, Forward, Hamilton & Scripps, L.L.P., and Lourdes Slater; Kimball
Ann Lane and Craig Brown; Rodgers & Co., L.P.A., and Walter A. Rodgers, for
appellee Westport Insurance Company (f.k.a. Puritan Insurance Company).
       Rodgers & Co., L.P.A., and Walter A. Rodgers, for appellee Government
Employees Insurance Company.
       Bates & Carey, Robert J. Bates, Maria G. Enriquez and Monica Sullivan;
Ulmer & Berne and David L. Lester, for appellees Executive Risk Indemnity, Inc.
(f.k.a. American Excess Insurance Company) and American Re-insurance
Company.
       Traub, Eglin, Lieberman & Straus, Robert P. Siegel, Meryl R. Lieberman
and Stephen D. Straus; Weston, Hurd, Fallon, Paisley & Howley, L.L.P., Gary




                                       14
                              January Term, 2002




Johnson and Joseph M. Saponaro, for appellees Evanston Insurance Company and
Northwestern National Insurance Company.
       McNeal, Schick, Archibald & Biro Co., L.P.A., Robert D. Archibald and
Brian T. Winchester; Tressler, Soderstrom, Maloney & Priess, Michael W.
Morrison and Dale Kurth, for appellee Allstate Insurance Company, successor in
interest to Northbrook Excess and Surplus Lines Insurance Company.
       Merlo, Kanofsky & Brinkmeier, Ltd., Ross D. Roloff and Michael R.
Gregg; Roderick, Linton, L.L.P., and Lawrence R. Bach, for appellees Everest
Reinsurance Company (f.k.a. Prudential Reinsurance Company) and Gibraltar
Casualty Company (n.k.a. Mt. McKinley Insurance Company).
       Bollinger, Ruberry & Garvey, Clay Phillips and Dennis Dolan; McMahon
DeGulis Hoffmann & Blumenthal and Gregory DeGulis, for appellees International
Insurance Company and International Surplus Lines Insurance Company.
       Chadbourne & Parke, L.L.P., and Francisco Vazquez, for appellee Bermuda
Fire & Marine Insurance Company.
       Connelly, Jackson, & Collier, L.L.P., and Steven R. Smith; Covington &
Burling and Mitchell F. Dolin, urging reversal for amici curiae Babcox & Wilcox
Company, B.F. Goodrich Company, Lincoln Electric Company, Millenium
Chemicals, Inc., Norfolk Southern Railway Company, Oglebay Norton Company,
Ohio Chemistry Technology Council, Owens Corning, PPG Industries, Inc., and
Sherwin-Williams Company.
       Goodman Weiss Miller, L.L.P., and Drew A. Carson; Anderson Kill &
Olick, P.C., Eugene R. Anderson and Richard P. Lewis; Law Office of Amy Bach
and Amy Bach, urging reversal for amicus curiae United Policyholders.
       Keener, Doucher, Curley & Patterson and Thomas Joseph Keener, urging
affirmance for amicus curiae Insurance Environmental Litigation Association.




                                       15
                                   SUPREME COURT OF OHIO




1. The other named appellants in this action are Motor Wheel Corporation, Kelly-Springfield Tire
Company, Hose Couplings Manufacturing, Inc., Divested Aerospace Corporation, as successor in
interest to Goodyear Aerospace Corporation, Goodyear Farms, Inc., and Brad Ragan, Inc.

2. The other appellees in this action are Travelers Indemnity Company, Stonewall Insurance
Company, Certain Underwriters at Lloyds, London, London Market Company, Atlanta International
Insurance Company, Insurance Company of North America, Century Indemnity Company, Central
National Insurance Company of Omaha, California Union Insurance Company, U.S Fire Insurance
Company, AIU Insurance Company, Birmingham Fire Insurance Company, Granite State Insurance
Company, Insurance Company of the State of Pennsylvania, Lexington Insurance Company,
National Union Fire Insurance Company of Pittsburgh, PA, General Reinsurance Corporation,
Northstar Reinsurance Corporation (n.k.a. Signet Star Reinsurance Company), Westport Insurance
Company (f.k.a. Puritan Insurance Company), Government Employees Insurance Company,
Executive Risk Indemnity, Inc. (f.k.a. American Excess Insurance Company), American
Reinsurance Company, Evanston Insurance Company, Northwestern National Insurance Company,
Allstate Insurance Company, as successor in interest to Northbrook Excess and Surplus Lines
Insurance Company, Everest Reinsurance Company (f.k.a. Prudential Reinsurance Company),
Gibraltar Casualty Company (n.k.a. Mt. McKinley Insurance Company), International Insurance
Company, International Surplus Lines Insurance Company, Bermuda Fire & Marine Insurance
Company, and Old Republic Insurance Company.

3. The quoted language is taken from a policy issued by Travelers Indemnity Company and is
representative of the language used in each of the insurance policies at issue.

4. See, also, J.H. France Refractories Co. v. Allstate Ins. Co. (1993), 

534 Pa. 29

, 

626 A.2d 502

.

5. The policies at issue used this or similar language.




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