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Associated Aviation Underwriters v. Wood9/29/2004
the reasoning of those two asbestos cases, the court in Transamerica concluded:
These appellants, like the plaintiffs in Burns and DeStories, offer "no competent evidence of any physical impairment or harm caused by this exposure." Burns, 156 Ariz. at 377, 752 P.2d at 30. Appellants therefore have not sustained any compensable bodily injury within the meaning of the Transamerica policy as a result of their exposure to the passenger's infected blood, as they have suffered no physical injury, sickness, disease, or substantial pain as a direct result of exposure to the virus. 173 Ariz. at 115, 840 P.2d at 291.
Relying on Transamerica, Burns, and DeStories, AAU contends "no Intervenor proved an actual injury , as defined by Arizona law" for insurance coverage purposes. If the issue in phase I had been whether Intervenors in fact had sustained manifested, compensable bodily injuries caused by exposure to TCE, those three cases indeed would support AAU's position. AAU's entire argument, however, overlooks the Morris -agreement context of this case and the limited coverage issue presented in phase I: the timing of the accident that caused any injuries. Understandably, AAU has persistently challenged and attempted to litigate whether Intervenors in fact sustained any manifested, compensable injuries and, if so, whether TCE-contaminated water proximately caused any such injuries. But, as the trial court noted, Morris forecloses those arguments.
The central issue in Transamerica, Burns, and DeStories was whether the claimants had sustained a manifested, compensable injury . Intervenors maintain that Transamerica "never purported to determine what events would trigger insurance coverage in the context of claims of latent disease arising from toxic exposures years earlier," insisting it "has no application to this case." Similarly, Intervenors argue, " Transamerica is inapposite to the trigger question before this Court because here, unlike in Transamerica, Intervenors have manifested 'compensable physical injuries' that supported their underlying tort claims."
We agree with Intervenors' ultimate position but not necessarily their reasoning. It is certainly debatable whether this record reflects that Intervenors actually "have manifested 'compensable physical injuries,'" as they assert. But here, unlike the situation in Transamerica or the asbestos cases, the fact that Intervenors sustained compensable injuries or actual loss adequate to support a cause of action is deemed established by the Morris agreement and consent judgment. See 77, supra. Thus, the determinative question in those cases was simply not at issue here.
In our view, Transamerica would resolve the issue presented here if the court had addressed whether appellants' exposure to the HIV-tainted blood at the accident scene constituted a "'bodily injury ... caused by an accident'" under circumstances in which appellants had actually tested positive for HIV, but had not yet manifested any signs or symptoms of AIDS until after the policy period. 173 Ariz. at 114, 840 P.2d at 290. Although the court in Transamerica had no need to address that hypothetical issue, language at the end of its opinion relating to the statute of limitations provides some guidance here. In discussing the issue of when the limitations period would begin to run "should appellants [eventually] sustain bodily injury as a result of exposure to the infected blood," the court suggested that, in that event, appellants could then "refile their action" against Transamerica. Id. at 116, 840 P.2d at 292.
Thus, the court implied that Transamerica's policy (in effect at the time of appellants' exposure), rather than whateve
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