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Associated Aviation Underwriters v. Wood9/29/2004
the City as alleged in the Valenzuela and Gerardo cases and as proven in this case constitute "accidents" which are within the coverage of the AAU policies.
3. The AAU insurance policies at issue in this case are triggered when bodily injury , caused by an accident, is being sustained by an Intervenor during a policy period. "Bodily injury" first occurs when the biological process begins that culminates in manifested injury. Thus, while cellular injuries alone may not be compensable under Arizona law, cellular injuries are sufficient to trigger insurance coverage when there is competent medical evidence, as here, that such injuries initiate the process that culminates in a manifested, compensable bodily injury. To hold otherwise, as AAU suggests, would turn the policies into "claims-made" policies, which they clearly are not.
4. The AAU accident insurance policies at issue in this case provide coverage for the types of claims asserted by the Intervenors exposed to TCE during the AAU accident policy periods.
AAU challenges both the sufficiency of the evidence and the legal basis for the trial court's finding of coverage. Before addressing AAU's specific arguments, we first recognize several fundamental principles of insurance law that relate to the coverage issue here. First, Intervenors bore the burden of proving coverage under AAU's policies. See Keggi v. Northbrook Prop. & Cas. Ins. Co., 199 Ariz. 43, 13, 13 P.3d 785, 788 (App. 2000) ("Generally, the insured bears the burden to establish coverage under an insuring clause."); Pac. Indem. Co. v. Kohlhase, 9 Ariz. App. 595, 597, 455 P.2d 277, 279 (1969) ("When recovery is sought under an insurance contract, the insured has the burden of proving that his loss was due to an insured risk."). Second, as both sides acknowledge, "'the time of the occurrence of an 'accident,' within the meaning of an accident indemnity policy, is not the time the wrongful act was committed but the time [when] the complaining party was actually damaged.'" Outdoor World, 122 Ariz. at 295, 594 P.2d at 549, quoting C.T. Drechsler, Annotation, Occurrence of Accident or Injury as During, or Before or After, Time Period of Coverage of Liability Policy, 57 A.L.R.2d 1385, 1389 (1958) (alteration in Outdoor World ); see also Century Mut. Ins. Co., 8 Ariz. App. at 385, 446 P.2d at 491. Third, to establish, for coverage purposes, that an "accident" and "concomitant damage" occurred during AAU's policy period, id. at 386, 446 P.2d at 492, Intervenors could not merely rest or rely on the Morris agreement or consent judgment. See Morris, 154 Ariz. at 120, 741 P.2d at 253 ("any stipulation of facts essential to establishing coverage would be worthless").
AAU raises two fundamental issues related to the coverage question: (1) whether Intervenors' exposure to TCE caused any type of physical harm during the policy period, and (2) whether any such harm, as a matter of law, constitutes "bodily injury, sickness or disease" under AAU's policy, triggering coverage. The first issue is factintensive and turns on whether the record contains substantial evidence to support the trial court's finding that "human exposure to TCE causes an actual bodily injury shortly after absorption into the body and the injury continues developing even though it may not yet be clinically manifested by symptoms or capable of being medically diagnosed." See 69, supra. We must uphold the trial court's factual findings unless they are clearly erroneous or lack any substantial evidentiary support, giving "due regard... to the opportunity of the trial court to judge the credibility of witnesses." Ariz. R. Civ. P. 52(a), 16 A.R.S., Pt. 1; see also Brake Masters Sys., Inc. v. Gabbay, 206
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