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Associated Aviation Underwriters v. Wood9/29/2004
ases. See n.8, supra. Therefore, the trial court's pretrial order -- to the extent it required Intervenors to prove the elements of TAA/City's fault and causation -- neither impacted the phase I trial nor rendered the trial court's ultimate September 2000 ruling on the phase I coverage issues erroneous.
F. AAU's challenge to particular Intervenors
AAU next argues the trial court erred in granting judgment in favor of eleven trial Intervenors who alleged only non-cancer illnesses. AAU bases its argument on the fact that the trial court expressly refused to find that " here is competent medical evidence that TCE also causes numerous other non-malignant adverse health consequences in humans, ranging from birth defects to neurological diseases to autoimmune disorders." According to AAU, the so-called "rejection doctrine" renders the trial court's refusal to find that TCE causes non-cancer illnesses an affirmative finding that TCE does not, in fact, cause non-cancer conditions. AAU asserts that our supreme court adopted that doctrine in Drum v. Simer, 68 Ariz. 319, 321, 205 P.2d 592, 593 (1949), in which the court stated that " n omission of the findings to cover a particular fact or issue is to be deemed a finding on that fact or issue against the party having the burden of proof."
We agree with Intervenors, however, that the rejection doctrine does not apply here because, under Morris, Intervenors bore no burden of proof on the issue of whether TCE caused their injuries. AAU was precluded from litigating causation issues because they were inextricably intertwined with the issue of TAA/City's tort liability. Thus, as Intervenors also point out, even if the trial court had affirmatively found that TCE does not cause non-cancer illnesses, that determination would be legally irrelevant to the coverage issue of whether AAU had to indemnify TAA/City for its allegedly having caused those illnesses. Because of the legal fiction created by the Morris agreement and related consent judgment in Gerardo, Intervenors could base their case on the assumption that TCE (for which TAA/City was responsible) caused their injuries -- whatever those injuries might have been. As discussed below, the only pertinent coverage issue the Morris agreement and consent judgment left open here was the timing of those injuries.
AAU next argues the trial court erred in granting judgment in favor of intervenor Peter Paul Lopez, who did not claim to have been exposed to TCE inside the area identified by Intervenors' expert as impacted by TCE emanating from TAA/City property. AAU maintains the trial court was bound to enter judgment against Peter Paul Lopez because it previously had entered summary judgment in favor of AAU on the claims of Edward Lopez and Frances Estes. Those prior rulings, later reduced to judgment in March 2003, were entered in favor of AAU because Edward Lopez did not allege he had been exposed to TCE within the impacted area identified by Intervenors' expert and because Estes had alleged she had been exposed to TCE before AAU's accident policies were in force.
As AAU concedes, however, "application of the Phase I rulings to the individual [claim] of Peter Paul Lopez is not a matter of fact but rather an application of law." And, as discussed earlier, AAU is precluded under Morris from litigating the factual issue of where particular Intervenors were exposed to TCE. That is essentially a causation issue relating to whether Peter Paul Lopez was exposed to TCE for which TAA/City was responsible. Again, because causation relates to TAA/City's underlying tort liability, AAU is precluded from challenging that issue in the guise of a coverage defense. Accordingly, the trial
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