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Associated Aviation Underwriters v. Wood9/29/2004
edibility and weight of expert testimony). So viewed, his testimony on when TCE causes injury constitutes substantial evidence supporting the trial court's finding that, upon an individual's first exposure to TCE, "cellular damage" constituting "an actual bodily injury" occurs. And, as Intervenors argue, the Morris agreement and consent judgment established the elements of compensable bodily injury and its causal relationship to TCE exposure. Thus, on the legitimate coverage issue of when Intervenors' injuries occurred, we cannot say the trial court clearly erred in finding that human exposure to TCE had caused "cellular damage" during the policy period.
The second and more difficult question, however, is whether, as a matter of law, such cellular injuries are sufficient to trigger insurance coverage. Relying primarily on Transamerica Insurance Co. v. Doe, 173 Ariz. 112, 840 P.2d 288 (App. 1992), AAU asserts that "mere cellular injury not yet manifested is not a 'bodily injury' for insurance purposes in Arizona." We review this issue, including interpretation of the phrase "bodily injury" in AAU's policy, de novo. See Univ. Mech. Contractors, 150 Ariz. at 301, 723 P.2d at 650.
In Transamerica, appellants had given emergency medical assistance to victims of a car accident and, in doing so, were exposed to blood infected with the human immunodeficiency virus (HIV), which causes acquired immune deficiency syndrome (AIDS). After a year of testing, however, appellants' blood did not reveal the presence of HIV, and their physician deemed further testing unnecessary. Appellants nonetheless claimed to have sustained bodily injury from their exposure to HIV and sought compensation from their own carrier, Transamerica, under the underinsured motorist (UIM) provision of their automobile liability insurance policy. To recover under the UIM provision of their policy, appellants were required to prove that (1) they were legally entitled to recover in tort from the underinsured driver, because they had sustained (2) bodily injury that was (3) caused by an accident. Transamerica, 173 Ariz. 112, 840 P.2d 288.
Division One of this court first assumed, without deciding, that appellants could have recovered against the negligent driver. Id. at 114, 840 P.2d at 290. The court concluded, however, that appellants had not sustained a "bodily injury " for purposes of UIM coverage under their policy. Id. at 115, 840 P.2d at 291. Therefore, the court affirmed a summary judgment in favor of Transamerica. In so ruling, the court noted "the term 'bodily injury'... is not ambiguous on its face" and stated, " n insurance law, the term 'bodily injury' is narrower and more restrictive than 'personal injury.'" Id. The court then defined "bodily injury" as "encompass only physical injuries, impairment of physical condition, sickness, disease, or substantial pain." Id. From that premise, the court concluded appellants' mere exposure to HIV-infected blood was not a compensable bodily injury within the meaning of Transamerica's policy. Id.
In support of its conclusion, the court in Transamerica relied solely on Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (App. 1987), and DeStories v. City of Phoenix, 154 Ariz. 604, 744 P.2d 705 (App. 1987). Those cases held that mere exposure to and inhalation of asbestos particles were not sufficient to support a cause of action in tort. In finding no compensable "bodily injury" for insurance coverage purposes in Transamerica, the court concluded that " he reasoning of Burns and DeStories " was directly applicable. 173 Ariz. at 115, 840 P.2d at 291. Although neither Burns nor DeStories involved insurance policy claims, Transamerica did. And, in adopting
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