West Virginia Supreme Court Receives Certified Question on Trigger of Coverage
The Fourth Circuit sought guidance from the West Virginia Supreme Court regarding the proper trigger of coverage for latent illnesses due to exposure to chemicals that leaked from tanks. Westfield Ins. Co. v. Sisterville Tank Works, Inc., 2022 U.S. App,. LEXIS 31403 (4th Cir. Nov. 14, 2022).
The tanks were manufactured by Sisterside Tank Works (STW). The underlying claimants had their illnesses diagnosed between 2014 and 2016, but the illnesses were allegedly caused by hazardous chemical exposure dating back to the 1960s. The claimants sued and STW defended itself against claims alleging that its negligence in manufacturing its products contributed to the illnesses.
Westfield provided some form of coverage to STW between 1985 and 2010. The federal district court ordered summary judgment in favor of STW, finding that Westfield owed STW coverage under the 1985-1989 policies.
Westfield appealed. It contended that the district court applied the wrong theory to determine when insurance coverage was triggered under West Virginia law. Finding no controlling authority in West Virgina, the Fourth Circuit certified the following question to the West Virgina Supreme Court:
At what point in time does bodily injury occur to trigger insurance coverage for claims stemming from chemical exposure or other analogous harm that contributed to development of a latent illness?
It was uncontested that Westfield did not provide insurance to STW in 2014-2016, the years that the claimants’ illnesses were diagnosed. The critical issue was whether Westfield owed coverage to STW when bodily injury occurred under the Westfield policies so as to trigger coverage for a latent bodily injury or illness.
Westfield argued that the manifestation theory of coverage should apply, while STW argued for application of the continuous theory of coverage. The district court applied a continuous coverage theory to this case, determining that any policy in place throughout the alleged period of harm was triggered by those claims. Federal district courts in West Virginia had concluded that the state law called for application of the manifestation theory in similar contexts.
The Fourth Circuit therefore certified the question to the West Virginia Supreme Court.
Under Hawaii law, the continuous injury trigger applies in situations as described in this case. See Sentinel Ins. Co., Ltd v. First Ins. Co. of Hawaii, Ltd., 76 Haw. 277, 875 P.2d 894 (1994).
