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Associated Aviation Underwriters v. Wood9/29/2004
Ariz. 360, 16, 78 P.3d 1081, 1086 (App. 2003) (factual finding is not clearly erroneous if substantial evidence supports it).
AAU contends the trial court erred in finding that an "accident" had occurred during the relevant time frame, triggering coverage under its policies, because "no Intervenor proved that any injury occurred during any AAU policy period." The trial court's finding of coverage under the "accident" policies, AAU argues, was unsupported by "any competent, admissible evidence" and "ignored clear, controlling Arizona case law." We disagree.
In their effort to establish that an "accident" and resulting damage had occurred during the relevant coverage period, as AAU's policies required, Intervenors relied solely on the expert testimony of Marvin Legator, a medical school professor of environmental toxicology. Legator testified that, based on reasonable scientific probability, "TCE metabolizes into chemicals that cause genetic damage." Legator further testified that "TCE is known to cause cancer, and not just in one organ of the body but in many," including kidney cancer, liver cancer, leukemia, lymphomas, "all caused by the same chemical, albeit maybe not the same metabolites." In addressing "the time where the disease processes were initiated that finally led to the disease outcome," Legator stated: " e can unequivocally say that really it's the first drink of water that starts this process rolling." Similarly, Legator testified, "based on reasonable scientific certainty, that the initiation of the processes that lead to adverse health outcomes associated with TCE exposure begin with the very first exposure to the chemical," that is, " he very first drink of water starts the process."
As Intervenors' counsel pointed out in phase I, the only issue Legator was requested to address was "when did exposures to TCE initiate the processes that resulted in adverse health outcomes or bodily injuries in this case." Accordingly, Legator did not examine any of the Intervenors or their medical records, nor did he "concern [himself] with whether TCE had caused any problems in this case." Legator openly acknowledged he knew nothing about Intervenors' alleged illnesses, their exposure to TCE, or any causal relationship between such exposure and any claimed diseases because his only assignment "was to talk about TCE exposure and the initiation of processes that can lead to disease outcome." Accordingly, in addressing the timing issue, Legator merely assumed "that individuals had ingested contaminated water from TCE," that "there had been causation," and "that each individual in this case had developed an injury related to exposure to TCE."
In addition, as AAU correctly points out, at no stage of the proceedings below, including the phase I trial, did any of the Intervenors or their treating physicians testify. Although in their answers to interrogatories Intervenors identified hundreds of physical, mental, or psychological diseases they claimed had been caused by TCE, they presented no evidence at the phase I trial to substantiate those allegations. Nor did Intervenors present any expert testimony that their alleged injuries or diseases were caused by ingestion of water containing TCE.
Neither those deficiencies nor the qualified, equivocal, and somewhat speculative nature of Legator's testimony precluded a finding of coverage. We must view that testimony in the light most favorable to upholding the trial court's ruling. See Sabino Town & Country Estates Ass'n v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App. 1996); see also Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 45, 945 P.2d 317, 356 (App. 1996) (trier of fact determines cr
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