Plastics Engineering Co. v. Liberty Mutual Insurance

SHIRLEY S. ABRAHAMSON, C.J.

¶ 62. {concurring). The Seventh Circuit Court of Appeals certified to *586this court the following three questions of law that, according to the certification memorandum of the federal court of appeals, are "unresolved by Wisconsin appellate courts and are likely to recur in future lawsuits:"

(1) What constitutes an "occurrence" in an insurance contract when exposure injuries are sustained hy numerous individuals, at varying geographical locations, over many years;
(2) Whether Wisconsin Statute § 631.43(1) applies to successive insurance policies; and
(3) Whether Wisconsin courts would adopt an "all sums" or pro rata allocation approach to determining liability when an injury spans multiple, successive insurance policies.

¶ 63. This court agreed to respond to the three questions of law pursuant to Wis. Stat. § 821.01.1 This court's function under certification is not to decide the *587case but to respond to questions of Wisconsin law so that the federal court may apply the Wisconsin law in deciding the case.

¶ 64. As the federal court of appeals reminds us in its certification memorandum, certification is not appropriate when resolution of the issues has limited precedential effect. Certification is appropriate, according to the federal court of appeals, when resolution of contract questions "will be useful beyond the parameters of the instant dispute."

¶ 65. The majority opinion correctly states that in an insurance coverage dispute such as this one, a court begins its analysis by turning to the language of the policy. Majority op., ¶ 30. If the common and ordinary meaning of the policy language yields a result, there is no occasion to turn to principles derived from the case law. Majority op., ¶ 27. The majority opinion also observes that "the terms of the insurance policy are not always sufficient, standing alone, to permit a definitive determination[.]" Majority op., ¶ 35 (citing Nicor, Inc. v. Associated Elec. & Gas Ins. Servs. Ltd., 860 N.E.2d 280, 287 (Ill. 2006). Here, the Seventh Circuit Court of Appeals clearly concluded that the policy language alone was insufficient to resolve the dispute. If the policy language were sufficient or Wisconsin law were clear, the Seventh Circuit Court of Appeals would not have certified these questions.

¶ 66. Because the majority tries so hard to limit its opinion to the language of the insurance policies at issue and the particularized facts of the instant case, I am concerned that the majority opinion has not re*588sponded to the certified questions of law but has instead decided the merits of the instant case. I do not agree with this approach toward the certified questions.

¶ 67. The majority, in my opinion, does what Liberty Mutual feared: Certification has allowed Plenco to get a decision on the merits of the case from this court instead of from the federal court in which Plenco brought its suit. Liberty Mutual objected to certification, urging the federal court to bind Plenco to its chosen federal forum.2 By the majority's decision, Plenco has succeeded, in effect, in "removing" its federal case to the state court for a decision. This is not the purpose of a federal court's certifying questions of law to this court.. If the certified questions cannot be answered by setting forth Wisconsin law, this court should return the certified questions unanswered.

¶ 68. The parties briefed the first and third issues discussing separately the language of the insurance policies and relevant Wisconsin law. The parties briefed the second issue discussing only Wisconsin law. The majority opinion does not decouple its discussion of the text of the insurance policies and its discussion of relevant Wisconsin law, ultimately deciding the first and third certified questions of law on the basis of the language of the insurance policy and the facts of the instant case.3 I shall focus on Wisconsin law, as the certification requests. The emphasis of this concurrence is therefore different from the emphasis of the majority opinion. I believe the concurrence is more in keeping with Wis. Stat. § 821.01, the statute governing our answering certified questions.

*589¶ 69. Because I write a concurrence, not a majority opinion, my analysis of Wisconsin law in responding to the certified questions is brief, citing to an explanation of Wisconsin law in the majority opinion whenever possible. As I see it, the federal court will then have to interpret the insurance policies and apply Wisconsin law as set forth by this court.

I

¶ 70. I conclude as a matter of Wisconsin law, as does the majority opinion, that because each claimant's injury-causing exposure to asbestos occurred at different times, different locations, and under a variety of circumstances, involving different products over a 33-year period, each claimant's exposure must be viewed as a separate occurrence.4

¶ 71. Liberty Mutual argues that thousands of disparate claims involving thousands of claimants alleging exposure to different asbestos-containing Plenco products, occurring over many decades and at numerous locations across the country, constitute one occurrence and that Plenco's insurance coverage for asbestos claims is limited to a single primary policy ($500,000) for 1977-1984 and one excess policy ($10 million) for. 1971-1988. Liberty Mutual asserts that the focus in Wisconsin law is on the underlying circumstance that caused the injury rather than on the number of persons injured. Accordingly, Liberty Mutual asserts that multiple injuries with a single cause count as a single occurrence.

¶ 72. I agree with Liberty Mutual that an occurrence under Wisconsin law can be ongoing and span a *590substantial amount of time but still be one occurrence within Wisconsin law.5

¶ 73. Wisconsin has adopted the "cause" analysis, not the "effect" test, for determining the number of occurrences. The focus of the "cause" analysis in a multiple injury situation is on the uninterrupted nature and closeness in time and location between the event and its consequent injuries. Timing and location are therefore critical factors in assessing whether there is a single occurrence or multiple occurrences.

¶ 74. Our court has explained the "cause" test in Olsen v. Moore, 56 Wis. 2d 340, 349, 202 N.W.2d 236 (1972), as follows:

If viewed from the point of view of a cause, it would appear that a single, uninterrupted cause which results in a number of injuries or separate instances of property damage is yet one "accident" or "occurrence." If, however, that cause is interrupted or replaced by another cause the chain of causation is broken and more than one accident or occurrence has taken place.

¶ 75. The instant case does not present one uninterrupted and continuing cause under Wisconsin law, as Liberty Mutual contends. There is no basis under the Wisconsin "cause" analysis for aggregating events widely separated in time, space and circumstances into one occurrence.6 Liberty Mutual's position sweeps too broadly, and the result it reaches challenges common sense.

*591II

¶ 76. I conclude, as matter of law, as does the majority opinion, that Wis. Stat. § 631.43(1) does not apply to successive insurance policies. See majority op., ¶¶ 44-50.

Ill

¶ 77. I agree with the majority opinion that Wisconsin courts would adopt an "all sums" approach to allocating damages and the duty to defend when an injury spans multiple, successive insurance policies. See majority op., ¶¶ 51-54, 60.

¶ 78. For the reasons set forth I write separately.

Wisconsin Stat. § 821.01 provides as follows:

The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States or the highest appellate court of any other state when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.

Under this statute, the certifying court (here the federal court of appeals) retains jurisdiction of the case. This certification process is entirely distinct from the process used when we accept certification from our own Wisconsin court of appeals under Wis. Stat. § 808.05(2). In those cases, we accept jurisdiction of the entire case, and our standard practice is to decide all issues raised in the briefs, rather than to limit our response to the distinct questions of Wisconsin law raised in the certifica*587tion memorandum of the Wisconsin court of appeals. See Jackson County v. DNR, 2006 WI 96, ¶¶ 42-48, 293 Wis. 2d 497, 717 N.W.2d 713 (Abrahamson, C.J., concurring in part, dissenting in part).

Seventh Circuit Court of Appeals, certification memorandum.

Majority op., ¶¶ 4, 29, 43, 51, 55, 59, 61.

Majority op., ¶¶ 36-38, 41.

See, e.g., Society Ins. v. Town of Franklin, 2000 WI App 35, ¶ 7, 233 Wis. 2d 207, 607 N.W.2d 342 (parties do not dispute one continuous occurrence when damage was from pollution at one geographical site).

For similar analysis, see, e.g., Stonewall Ins. Co. v. Asbestos Claims Mgt. Corp., 73 F.3d 1178 (2d Cir. 1995); Pittsburgh *591Coming Co. v. Travelers Indem. Co., 1988 WL 5302 (E.D. Pa. 1988); Commercial Union Ins. Co. v. Porter Hayden Co., 698 A.2d 1167 (Md. Ct. Spec. App. 1997); Mason v. Home Ins. Co. of Ill., 532 N.E.2d 526 (Ill. Ct. App. 1988).

Other courts have concluded that placing a product in the stream of commerce is one occurrence. See cases cited in majority opinion at note 7.